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Responding to Imperfection

Responding to Imperfection: The Theory and Practice of Constitutional Amendment

Sanford Levinson Editor
Copyright Date: 1995
Pages: 352
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  • Book Info
    Responding to Imperfection
    Book Description:

    An increasing number of constitutional theorists, within both the legal academy and university departments of government, are focusing on the conceptual and political problems attached to the notion of constitutional amendment. Amendments are, among other things, recognitions of the imperfection of existing schemes of government. The relative ease or difficulty of amendment has significant implications for the ways that governments respond to problems that call either for new structures of governance or new powers for already established structures. This book brings together essays by leading legal authorities and political scientists on a range of questions from whether the U.S. Constitution is subject to amendment by procedures other than those authorized by Article V to how significant change is conceptualized within classical rabbinic Judaism. Though the essays are concerned for the most part with the American experience, other constitutional traditions are considered as well.

    The contributors include Bruce Ackerman, Akhil Reed Amar, Mark E. Brandon, David R. Dow, Stephen M. Griffin, Stephen Holmes and Cass R. Sunstein, Sanford Levinson, Donald Lutz, Walter Murphy, Frederick Schauer, John R. Vile, and Noam J. Zohar.

    eISBN: 978-1-4008-2163-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. One Introduction: Imperfection and Amendability
    (pp. 3-12)

    On June 11, 1787, George Mason of Virginia opened the discussion of constitutional amendment at the constitutional convention in Philadelphia with a forthright statement that “the plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.”¹ Almost exactly five months later, as the new constitution drafted in Philadelphia was beginning to wend its uncertain path through the ratification conventions of the thirteen states,...

  5. Two How Many Times Has the United States Constitution Been Amended? (A) < 26; (B) 26; (C) 27; (D) > 27: Accounting for Constitutional Change
    (pp. 13-36)

    The notion of a living Constitution—especially when coupled with developmental or evolutionary notions—is one of the central metaphors, not to say clichés, of American constitutionalism. It is hard to find anyone who is truly willing to reject it, given that the alternative seems to be adeadConstitution, an option that has few, if any, public supporters. Still, as Justice Rehnquist once said, “The phrase ‘living Constitution’ has about it a teasing impression that makes it a coat of many colors,”¹ not all of them, it may be presumed, equally pleasing to the eye (or to the analytical...

  6. Three Constitutionalism in the United States: From Theory to Politics
    (pp. 37-62)

    Past anniversaries of the signing and ratification of the U.S. Constitution were marked by awed self-congratulation and public indifference, and the bicentennial was no exception.¹ The Constitution—presented as a document establishing a framework for government in the late eighteenth century, which survives today essentially unchanged—was once again proclaimed an unqualified success.² The rhetoric of the bicentennial confirmed the judgment of Sanford Levinson and others that an essential element of the American civil religion is reverence and veneration of the Constitution.³

    While I think the bicentennial assertions of the Constitution’s success are extremely questionable, I do not propose to...

  7. Four Higher Lawmaking
    (pp. 63-88)

    My fellow Americans, we are in a bad way. We are drifting. Our leaders are compromising, compromised. They have lost sight of government’s basic purposes.

    It is past time for us to take the future into our hands. Each of us has gained so much from life in America. Can we remain idle while this great nation drifts downward?

    No: We must join together in a movement for national renewal, even if this means self-sacrifice. We will not stop until the government has heard our voice.

    The People must retake control of their government. Our representatives must act decisively to...

  8. Five Popular Sovereignty and Constitutional Amendment
    (pp. 89-116)

    If understood—and taken seriously—these words from the Declaration of Independence require a fundamental rethinking of conventional understandings of the U.S. Constitution. Concretely: The U.S. Constitution is a far more majoritarian and populist document than we have generally thought; and We the People of the United States have a legal right to alter our government—to amend our Constitution—via a majoritarian and populist mechanism akin to a national referendum, even though that mechanism is not explicitly specified in Article V.¹ Let us first consider the text of Article V² and, more particularly, what it doesnotsay: that...

  9. Six The Plain Meaning of Article V
    (pp. 117-144)

    Law is composed of a variety of ambiguous texts.¹ Some of our texts, including provisions of the Constitution such as the equal protection clause of the Fourteenth Amendment, invite virtually unending debates about meaning. Other constitutional provisions, however, seem rather straightforward. Consider, for example, Article I, section 1, which forecloses the possibilities of Congress’s consisting of fewer or more than two houses; the terms for senators being other than six years; or a twenty-year-old serving even as a representative, let alone president. These texts seem clear. Of course, one can cavil. Must a presidential aspirant be thirty-five at the time...

  10. Seven Amending the Presuppositions of a Constitution
    (pp. 145-162)

    What makes a constitution constitutional? Nothing, we most plausibly answer, nor does or can anything make a constitution unconstitutional. Constitutions establish the grounds for constitutionality and unconstitutionality, and in so doing they simply cannot themselves be either constitutional or unconstitutional.

    Yet although it thus appears illogical to inquire into the constitutionality of a constitution, there may be a point in framing a question in this manner, especially in the context of thinking about the process of constitutional amendment. For although constitutionalists often assume that somethingina constitution provides the grounds for distinguishing between a valid and an invalid amendment,...

  11. Eight Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity
    (pp. 163-190)

    Some scholarly essays attempt to describe events or introduce concepts, some test hypotheses against data or analyze doctrines, others define or defend norms. This chapter frets. It worries about stability and change, though more about change, in a constitutional democracy:² what it was, what it is, and what it will become. I edge around the margins and below the surface of problems of constitutional change.³ “It’s a long, long while from May to September,” Jo Stafford used to wail back in the 1940s. For Americans it’s a longer time from 1787 to 1993 and much longer for the English from...

  12. Nine The Case against Implicit Limits on the Constitutional Amending Process
    (pp. 191-214)

    The constitutional amending process has been described as “a domestication of the right to revolution”¹ and as a key that unlocks the Constitution² and yet Article V of the Constitution, the amending article, contains two entrenchment clauses. The first—guaranteeing slave importation for twenty years—had a built-in termination, but the second, providing that no state would be deprived of its equal suffrage in the Senate without its consent, raises contemporary enforcement issues. Both clauses lead logically to the question of whether there are any implicit limits on the constitutional amending process.

    In addressing this question, the records of the...

  13. Ten The “Original” Thirteenth Amendment and the Limits to Formal Constitutional Change
    (pp. 215-236)

    Even apart from its resemblance to esoteric debates in medieval Christian theology, the notion that a constitutional amendment (even more, a constitutional provision)¹ might be unconstitutional seems almost absurd.² On the one hand, the very idea that an amendment, proposed and ratified according to procedures set out in what appear to be the plain words of the Constitution, could be unconstitutional seems somehow incoherent, incompatible with what we sometimes take to be our “common sense” (or with widely shared positivist preconceptions) about how constitutions work.³ John Marshall may have put this sense best inMarbury v. Madison, where he held,...

  14. Eleven Toward a Theory of Constitutional Amendment
    (pp. 237-274)

    A constitution may be altered by means of (1) a formal amendment process; (2) periodic replacement of the entire document; (3) judicial interpretation; and (4) legislative revision. What difference does it make if we use one method rather than another? What is the relationship between these four methods? What do we learn about the constitutional system and its underlying political theory by the pattern of choice among these alternatives? These are some of the questions I shall address below.

    It is true that a constitution is often used as ideological window dressing; and even in places where constitutions are taken...

  15. Twelve The Politics of Constitutional Revision in Eastern Europe
    (pp. 275-306)

    A constitution, among other things, is a document that is unusually difficult to change. Constitutionalism hinges upon a distinction between the procedures governing ordinary legislation and the more onerous procedural hurdles that must be overcome in order to recast the ground rules of political life. To understand the amending power and its limits, therefore, is to understand the balance of rigidity and flexibility, of permanence and adaptability, that lies at the heart of constitutional government. To institutionalize a constitutional system, as post-Communist drafters from Tirana to Tallinn are now attempting to do, means, among other things, to establish clear rules...

  16. Thirteen Midrash: Amendment through the Molding of Meaning
    (pp. 307-318)

    It is sometimes asserted that the need for change and adaptation in legal systems stems from the fallibility of their human authors and the inevitable imperfections of their handiwork.¹ But even a system like the Jewish Halakha—which views itself as based on divine revelation—cannot remain forever unchanged. In principle, this should pose no theoretical problem: After all, such a system may well provide for the establishment of specific norms by nondivine authorities, functionally akin to positive lawmaking by legislatures. Hence, just as in the modern state specific laws can be changed or repealed without affecting the underlying constitution,...

  17. Appendix: Amending Provisions of Selected New Constitutions in Eastern Europe
    (pp. 319-324)
  18. Contributors
    (pp. 325-326)
  19. Index
    (pp. 327-330)