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

Chapter 5
Examining the Terminology and Theory of Constitutional Change

If the thesis of this book is correct, there are at least three peaceful ways to effect changes in the U.S. constitutional order--an order which includes both the capital C and lowercase c constitutions. The formal amending process of Article V may initiate change, the judiciary may initiate change, or one or both of the elected branches may initiate change. Each method of change is real, and each has its own strengths and weaknesses. This author will examine these in the next chapter. In this chapter, the author will survey some of the existing terminology which describes change and assess the adequacy of existing theories that attempt to explain it.


THE TERMINOLOGY OF LEGAL CHANGE

Writers on constitutional change draw a number of distinctions, but these distinctions are difficult to compare because they are directed to different objectives. 1 Some classifications distinguish the formal Article V processes from other forms of change, whereas other nomenclatures measure the degree of change effected through whatever mechanism is utilized. Moreover, the two purposes tend to blend into one another, thus obscuring their different foci.

Donald S. Lutz focuses on distinguishing formal constitutional amendments from other forms of change, and, to this end, he utilizes the distinction between amendment and revision. 2 In his initial typology, he classifies changes inaugurated through the formal Article V process as amendments,

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