It is easy to ignore a Constitution or to overturn it altogether. … In my view, if a constitution deviates from popular opinion (or is it the prevailing structure of interest groups?) by any more than "k" percent, that constitution will be chucked.So the art of amending a constitution, in a way that will advance one’s (hopefully liberty-oriented) goals, is a careful balancing act. You can make marginal changes that will nudge people in the right direction, because their respect for constitutionalism will constrain them to follow the new provisions. But if your amendments are too drastic, people’s respect for constitutionalism may get strained to the breaking point. The constitution gets twisted or ignored.
I wonder if this perspective might provide a novel justification for the idea of a “living constitution.” In general, I’m repulsed by the notion of simply pretending the constitution says things it doesn’t in order to fit the zeitgeist, which is (one reason) why I’m generally more sympathetic to originalist approaches to constitutional interpretation. Cleaving to the original rules – and rules for amending the rules – seems to me the whole point of having a constitution. However, if public opinion has meandered sufficiently far (more than “k” percent in Tyler’s terms) from the original meaning of the constitution, attempts to return it to that meaning could create a problem very similar to that pointed out by Tyler: the public may just reject or ignore the constitution altogether (or at least pick politicians who will elevate judges and justices with even more malleable modes of interpretation). If so, then originalist goals might paradoxically be assisted by the infusion of some interpretive flexibility. A dose of living-document-ish reasoning might be the vaccine that inoculates the constitution from wholesale rejection of constitutionalism. And it strikes me that this is how originalism is actually implemented in practice, once it’s leavened by a respect for precedent.
But I’m only pondering here. Don’t lump me in with Sunstein just yet.