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

mechanism will undoubtedly affect the other two. Regular resort to one mechanism for change might thus contribute to the disuse of, or prompt resort to, the others, just as the difficulty of one mechanism might make resort to the other two more likely.

In thus addressing the process of constitutional amendment and what he calls judicial "revision," Donald Lutz has hypothesized--as have others before him--that one of the reasons that judicial revisions of the Constitution have become so commonplace is that the formal Article V process is so difficult. 171 Similarly, if, as Ackerman has documented, the three branches of government are intent on initiating change, Article V amendments may prove largely unnecessary. Alternatively, if the public believes that the ordinary political processes are not adequately responding to public sentiments, they may use the Article V process (and especially the still untried convention mechanism) to initiate changes on their own. If the people believe that political processes are instituting changes too frequently, they may exercise either their votes or the Article V process to halt or reverse such changes. Thus, Gary L. McDowell argues that the increasing number of single-issue amendments that have been proposed in Congress are largely "a frustrated response to an increasingly active judiciary whose opinions no longer seem to have any connection with the theory of limited republican government embraced by the Constitution." 172

It is therefore clear that the relationship among the three processes of change described in this book is dynamic and potentially synergistic. One of the insights of Bruce Ackerman's work is that he has indicated that, especially in the case of major changes, such alterations are likely to reflect more than the simple operation of a formalistic process and that they may even avoid the process altogether. The analysis in this chapter is directed to indicating that each method of change comes with a unique blend of costs and benefits, some of which are manifest in the short term and others over the long haul.


SUMMARY

In comparing constitutional changes effected by constitutional amendments with those initiated by laws or orders and those effected by judicial interpretations, then, there are a whole range of relevant issues. These are illustrated in Figure 6.1, which conveniently summarizes the material presented in this chapter.

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