Contemporary Questions Surrounding the Constitutional Amending Process

By John R. Vile | Go to book overview

case, and the structure and experience of the judicial branch make it less likely to enter partisan judgments in this area than the legislative branch. Moreover, especially over time, consistent judicial opinions would likely lead to greater stability in this area than a series of ad hoc congressional decisions each tailored to specific, and at times, highly partisan, circumstances. It thus appears that judicial judgments are appropriate in the amending area. The next chapter focuses on what these standards should be.


NOTES
1.
For a defense of this approach, see Maurice Cranston, What Are Human Rights? ( New York: Taplinger, 1973), pp. 51-72. Also see William Van Alstyne, "Notes on a Bicentennial Constitution: Part I, Process of Change," University of Illinois Law Review, 1984, pp. 935-37.
2.
This quotation is cited and critiqued in Ralph A. Rossum and G.Alan Tarr, American Constitutional Law, Cases Interpretation, 3d ed. ( New York: St. Martin's Press, 1991), pp. 1-3.
3.
M. J. C. Vile, Constitutionalism and the Separation of Powers ( Oxford: Clarendon Press, 1969). Also see Separation of Powers-does I Still Work?, ed. Robert A. Goldwin and Art Kaufman ( Washington, DC: American Enterprise Institute for Public Policy Research, 1986).
4.
De Tocqueville thus that, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one." Democracy in America, ed. J. P. Mayer ( Garden City, NY: Anchor Books, 1969), p.270.
5.
48 U.S. 1 ( 1849)
6.
307 U.S. 433 ( 1939).In a companion case, Chandler v. Wise, 307 U.S. 474, the Court denied standing to the challenged the governor's certification of the child labor amendment to the U.S. secretary of state.
7.
Coleman v. Miller, p. 436.
8.
253 U.S. 221 ( 1920).
9.
258 U.S. 130 ( 1922).
10.
On this point, it took the votes of the two dissenting justices to make a majority. See "Sawing a Justice in Half," Yale Law journal 48 ( 1939), p. 1457.
11.
Coleman v. Miller, p. 447. Apparently, Justice McReynolds had been absent from the last conference. See Lester B. Orfield, The Amending of the Federal Constitution ( ann Arbor: University of Michigan Press, 1942), p. 19. This division show, however, that the modern court is not the only one to be guilty of delivering precedents extremely difficult to intercept. For a recent critique of the court in this vein, see Joseph Goldstein, The Intelligible Constitution ( New York: Oxford University Press, 1922).
12.
Coleman v. Miller, p. 447.
13.
Ibid., p. 449.
14.
Ibid., p. 450.
15.
256 U.S. 368 ( 1921).
16.
Coleman v. Miller, p. 452.
17.
Ibid., 453.
18.
Ibid., p. 454

-39-

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