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

IMPLICATIONS FOR POLICY MAKERS

This author realizes that, in the end, proponents and opponents of constitutional change will more likely choose their strategy on the basis of what is more likely to result in what they consider to be favorable policy outcomes than on the basis of abstract constitutional considerations. On the one hand, those who believe they need but a new law or executive order or another vote on the Supreme Court to usher in changes they desire and who further doubt whether they can muster public opinion behind them are hardly likely to expend the energy to work for a constitutional amendment. Those who know, on the other hand, that the Court is now against them and is likely to be so in the foreseeable future while believing they have a clear majority of public opinion behind them may think that they have little option but to press for a constitutional amendment.

The existence of such a choice is a tribute to the dynamic tension of the American constitutional system. To focus exclusively on immediate conterns about which route is most likely to result in victory for one's side is, however, to ignore the link between individual policy issues and larger matters of constitutional interpretation. If the author has succeeded in bringing these matters into clearer focus, he will think that his book has been worth writing.


NOTES
1.
The author hopes the dimensions he has chosen are fairly exhaustive, and he has attempted to focus on dimensions which illuminate all sides of the issue, but he would especially welcome suggestions as to additional dimensions that he might find it useful to consider.

After writing this chapter, the author realized that Lester B. Orfield had analyzed amendments, albeit not rival mechanisms of constitutional change, along five dimensions--federalism, wisdom and efficiency, deliberation, popular democracy, clarity and certainty, and enforcement. See Orfield, The Amending of the Federal Constitution ( Ann Arbor: University of Michigan Press, 1942), pp. 206-21.

2.
The former rather than the latter requirement has been the most formidable. Of thirty-three amendments proposed by the necessary majorities of Congress, twenty-six or twenty-seven have been subsequently ratified by the states.
3.
Donald S. Lutz argues that a low amendment rate in a long-standing document like that in the United States "strongly implies the use of some alternate means of revision to supplement the formal amendment process." See Toward aTheory of Constitutional Amendment,

-116-

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