Thanks to Corey Brettschneider for his generous and perceptively critical review of my work and to Jeff Isaac for inviting us to discuss these issues.

Is it true that entrenchment poses no threat to democratic participation, and may even be essential for its exercise, if restricted to those norms about which there is no “reasonable disagreement,” such as freedom of speech? This is an important objection: In fact, perhaps without the Rawlsian flourish, it is likely the logic that contemporary constitutional framers themselves use when they choose to secure basic rights against amendment. Take, for instance, Brettschneider's example of an ostensibly “thin” provision, freedom of speech as protected by the First Amendment, which no one could reasonably reject and on which the possibility of democratic participation rests. Should we not make it formally unamendable and enable the Supreme Court to strike down any efforts to alter it?

The problem with making the First Amendment unamendable is in part that laws are inevitably “open-textured,” in the words of H. L. A. Hart. The mammoth scope of First Amendment jurisprudence bears this out. The bounds of what ought to be considered “speech”—even, more restrictively, “political speech”—are far from obvious; to take one famous example, are campaign expenditures a form of political speech? Thus, were we to entrench the First Amendment, not only would we secure the putatively neutral rights of petition or protest; we would also protect a particular interpretation of these indeterminate norms through stare decisis, at least until the Supreme Court itself chose to revisit the matter.

This is how—to take up another objection Brettschneider raises—the critique of entrenchment is linked to (though not equivalent to) that of judicial supremacy. If we entrenched the First Amendment, we would thereby exclude the possibility of enacting a constitutional amendment changing it. But we would not be able to prevent the Supreme Court from itself revising the meaning of the First Amendment through interpretation—by deciding that money is no longer speech, for instance—and such a judgment would not be subject to legislative or popular challenge. In sum, entrenchment does not eliminate the possibility of alteration; all it can do is shift the mode and locus of legal change away from legislatures or the citizens as a whole and toward constitutional courts.

Finally, can entrenchment actually save us from ourselves—can it keep us from enacting, to take another of Brettschneider's examples, laws disenfranchising African Americans? I fear it cannot; in fact, entrenchment in the United States Constitution has a racist history, as one of the two (arguably) unamendable provisions in Article V prohibited modifications to the slave trade until 1808. Whatever miserable social facts have led us to create a disenfranchisement amendment will likely swamp the power of the Court as well: If we can muster the political will to create an amendment disenfranchising African Americans, our democracy is already done for. Entrenchment cannot effectively serve as a bulwark against a deranged populace. It can, however, prevent constitutionally conscientious citizens from engaging in the deliberative activity of amendment.