Contemporary Questions Surrounding the Constitutional Amending Process

Contemporary Questions Surrounding the Constitutional Amending Process

Contemporary Questions Surrounding the Constitutional Amending Process

Contemporary Questions Surrounding the Constitutional Amending Process

Synopsis

This study examines the contemporary questions surrounding the process by which the U.S. Constitution can be amended. Beginning with the description of the mechanism and history of the constitutional amending process in America, the work considers five major questions surrounding the amending process. The question of justiciability: whether the courts should have authority to settle amending issues or whether they are political questions beyond the court's purview. The question of standards: what standards of review should be used. The question of safety: whether this is cause to fear an Article V convention. The question of exclusivity: whether there are legal means of changing the Constitution short of Article V. And the question of limitations: whether there are any unstated constitutional limits on the amending process.

Excerpt

I have been fascinated by the constitutional amending process and by associated mechanisms for constitutional change for more than a dozen years. Moreover, I firmly believe that an understanding of these topics involves far more than a mere tallying of amendment votes and an explication of their context. Rather, I think that the subject of constitutional change deserves the same kind of attention that has been devoted to such topics as representation, federalism, judicial review, executive leadership, and the like.

In a number of previous books, I have attempted to widen the existing field of study. My first book, Rewriting the United States Constitution (Praeger, 1991), outlines some forty plus proposals that have been introduced from Reconstruction to the present to remake the U.S. Constitution. I followed this book with a look at major American statesmen and theorists who have discussed the amending process in philosophical terms (The Constitutional Amending Process in American Political Thought, Praeger, 1992). I have also written a supplemental book on the U.S. Constitution in which I emphasize the importance that amendments have had in American constitutional development (A Companion to the United States Constitution and Its Amendments, Praeger, 1993), and, almost simultaneously with this book, I am editing a volume of readings (The Theory and Practice of Constitutional Change in America, A Collection of Original Source Materials, 1993) designed to show that discussions of the processes of constitutional change have been a permanent staple of political thought.

None of the books that I have authored to date addressed modern amending controversies in depth, although I have from time to time engaged in a number of such debates in the forum of law and political science reviews.

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