The Question of Exclusivity--Can Any Constitutional Changes Be Adopted Without Using Article V?
As the narrative in the first chapter should indicate, at least since Marbury v. Madison affirmed the power of judicial review of national legislation, 1 the formal constitutional amending process has been somewhat in tension with changes effected by judicial interpretations and congressional and presidential practices. 2 While the formal amending process can be used to modify the Constitution and even to reverse judicial decisions and evolving practices, the judiciary interprets not only the Constitution itself but also amendments added to it.
Moreover, justices, particularly those who put special emphasis on the original intent and/or the plain words of the Founders, have frequently accused their more non-interpretivist or activist brethren of improperly "amending" the Constitution. 3 Thus dissenting from an innovative interpretation of the contracts clause in Home Building & Loan Association v. Blaisdell, Justice George Sutherland (one of the four conservative justices then on the Supreme Court) noted that
What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. 4
Similarly objecting to the Court's discovery of a right of privacy in Griswold v. Connecticut (the Connecticut birth control case), Justice Hugo Black also rejected such judicial innovation: