are subject to judicial review. Hence, the courts have reversed a number of
laws examined in this chapter, including many early New Deal programs,
the 1970 extension of voting rights to eighteen year olds, and the 1989
Flag Protection Act. Other actions--the proposed Human Life Statute, for
example--were either never effected or--as in the case of the War Powers Resolution of 1973 and the Gramm-Rudman-Hollings Act--do not appear to have been altogether successful. Such examples should not,
however, obscure the many instances in which the two elected branches
have filled in constitutional gaps and contributed to the dynamics of constitutional growth and development.
Walter D. Burnham, Critical Elections and the Mainsprings of American Politics ( New York: W. W. Norton, 1970).
In a recent article, Ira C. Lupu refers to what he calls, "statutes revolving
in constitutional law orbits." He further divides such statutes into four categories,
those which: "1) extend a constitutional concept to a level of government, or to a
government entity, to which courts had not previously extended it; 2) extend application of constitutional limits beyond state action to private activity; 3) restore
a constitutional concept that courts have abandoned; or 4) respond to an authoritative judicial pronouncement concerning the constitutional boundaries of permissible regulation." See
Ira C. Lupu, "Statutes Revolving in Constitutional Law
Orbits," Virginia Law Review 79 ( February 1993), p. 4. Lupu notes that legislation
often "tracks" either the language of the Constitution itself or the language of
prominent court decisions interpreting the Constitution. He further observes,
p. 76, that such statutes "test our prevailing notions of the methods of constitutional change" and especially the view that such changes are initiated either by
amendments or by judicial interpretations.
John R. Vile, "Three Kinds of Constitutional Founding and Change:
The Convention Model and Its Alternatives," Political Research Quarterly ( December 1993), pp. 881-95.
John Massaro, Supremely Political ( Albany: State University of New York
Press, 1990). Also see Henry J. Abraham, Justices and Presidents: A Political
History of Appointments to the Supreme Court, 3d ed. ( New York: Oxford University Press, 1992).
Abraham notes that the Senate has failed to confirm 30 of 143 nominees to
the Supreme Court made by the president. See
Henry J. Abraham, The Judicial
Process, 6th ed. ( New York: Oxford University Press, 1993), p. 75.
Abraham, ibid. p. 74, cites Truman as saying "packing the Supreme Court
simply can't be done. I've tried and it won't work. Whenever you put a man on the
Supreme Court he ceases to be your friend. I'm sure of that." On the same page,
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Constitutional Change in the United States:A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions.
Contributors: John R. Vile - Author.
Publisher: Praeger Publishers.
Place of publication: Westport, CT.
Publication year: 1994.
Page number: 66.
This material is protected by copyright and, with the exception of fair use, may
not be further copied, distributed or transmitted in any form or by any means.