Laws, Orders, Judicial Decisions, and Amendents: A Comparative Analysis
Previous chapters have identified and described three major sources of change in the interpretation of America's formal Constitution and in the larger constitutional scheme of which it is a part. These chapters have also pointed to the ways that these mechanisms overlap and interact with one another.
This chapter will assess the strengths and weaknesses of each of these three mechanisms. In comparing the respective advantages and disadvantages of these processes, this author will utilize a number of sometimes overlapping dimensions which appear to be the most relevant and most prominent in the literature. 1
Of all the routes toward constitutional change, the amending route is undoubtedly the most difficult. It requires not only two-thirds majorities in both houses of Congress (the vote that would also be needed to override a presidential veto of an ordinary piece of legislation), but also the concurrence of three-fourths of the states. 2 Undoubtedly, this difficulty helps account both for the paucity of amendments that have been ratified and for the reluctance that advocates of change have to pursue this method when other alternatives are available. 3 The difficulty of the process can, however, be deceptive in its implications for individual amendments, sometimes leading people to exaggerate the difficulties. Thus, in the early