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

ANALYSIS

As in the previous chapter, the author has prepared a diagram illustrating the various relationships to change that various examples of judicial review perform. In looking at Figure 3.2, however, it is necessary to return to the caveat at the beginning of this chapter, namely, the recognition that there are so many court decisions spread out over so long a time period that there is little guarantee that any subset of cases like that chosen for this chapter will be representative. Indeed, the best-known cases might be so well known precisely because they appear to be so extraordinary.

Thus, as Figure 3.2 reveals, this chapter has devoted considerable attention to cases in which the Court has reversed or modified changes either by overturning its own prior precedents, by modifying or restricting the impact of constitutional amendments, or by invalidating laws, order, or developing customs. Given the Court's normal deference to stare decisis, however, the author would hypothesize that judicial decisions reversing changes are probably far less representative than those cases in which the Court either preserves the status quo or sanctions a change which has already been initiated by one or both of the elected branches. Similarly, while cases initiating changes are fairly dramatic, such changes tend to be associated with special eras (e.g., the Warren Court) or with special issues (e.g., civil rights and liberties) and are therefore hardly characteristic of the Court's usual agenda.

Like the process of amendment, judicial decisions thus perform a variety of functions. Whereas amendments have as their central purpose the initiation of change, the central purposes of judicial decisions would appear to be either preserving the status quo or following the lead of the other branches of government.


NOTES
1.
Donald S. Lutz has thus distinguished between the process of "amendment" effected through Article V and the processes of "revision" which are initiated by the legislative and judicial branches. See "Toward a Theory of Constitutional Amendment," paper presented at the American Political Science Convention, Chicago, Illinois, September, 1992, p. 6.
2.
Because of its focus on the national government, this book will not address reactions to changes effected through state constitutional provisions, but obviously one reaction to the Supreme Court's perceived restriction of individual rights has been to look to state constitutional provisions for protections that the

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