Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions

By John R. Vile | Go to book overview

protection to the right to choose an abortion would essentially preserve the status quo as it has been established by Roe v. Wade and its progeny.

Not surprisingly, however, the central historical function of amendments has been to initiate change. Amendments have played particularly important roles in extending voting and other civil rights, in making minor alterations in governmental structures and mechanisms, 70 and in reversing, or attempting to reverse, unpopular Supreme Court decisions. Not since the Bill of Rights has the nation ratified an amendment or set of amendments simply to preserve the status quo or forestall change. While the amending process is thus chiefly an agent of change, the people may just as easily use it to return the nation to a past practice or to sanction or extend a change that has already begun within the states or elsewhere in the political system as to inaugurate something new under the sun.


NOTES
1.
Robert Nisbet, History of the Idea of Progress ( New York: Basic Books, 1980). For reflections on the influence of this idea on the Warren Court, see Alexander M. Bickel, The Supreme Court and the Idea of Progress ( New Haven, CT: Yale University Press, 1978).
2.
See Woodrow Wilson contrast between the Newtonian and Darwinian models of a Constitution in "Constitutional Government in the United States" ( New York: Columbia University Press, 1961; reprint of 1908 edition), pp. 25-45. This link to Darwinism is discussed in Thomas H. Peebles, "A Call to High Debate: The Organic Constitution in Its Formative Era, 1890-1920," University of Colorado Law Review 52 (Fall 1980), pp. 49-104.
3.
Thus, Alan R. Grimes links the amending process to the expansion of American democracy. See his Democracy and the Amendments to the Constitution ( Lexington, MA: Lexington Books, 1978).
4.
D. O. McGovney, "Is the Eighteenth Amendment Void Because of Its Contents?" Columbia Law Review 20 ( May 1920), p. 514.
5.
One could, of course, attempt further to "entrench" a constitutional provision by making it more difficult to change. Currently, the only applicable entrenchment provision of the U.S. Constitution prohibits a state from being deprived of its suffrage in the U.S. Senate without its consent. Just before the U.S. Civil War, there were attempts to entrench the institution of slavery through the so-called Corwin Amendment which was proposed as part of the Crittenden Compromise. See Stephen Keogh, "Formal and Informal Constitutional Lawmaking in the United States in the Winter of 1860-1861," Journal of Legal History 8 ( December 1987), pp. 275-99 and R. Alton Lee, "The Corwin Amendment in the Secession Crisis," Ohio Historical Quarterly 70 ( January 1961), pp. 1-26.

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