Responding to Imperfection: The Theory and Practice of Constitutional Amendment [NOOK Book]

Overview

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 ...

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Responding to Imperfection: The Theory and Practice of Constitutional Amendment

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Overview

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.

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Editorial Reviews

Christopher L. Eisgruber
Sanford Levinson has assembled a sparkling collection of essays on the theory of constitutional amendment. RESPONDING TO IMPERFECTION belongs in the library of every student of the Constitution. The volume includes contributions from twelve authors. Eight chapters are new essays, while four are revisions of previously published work. A brief introduction by Levinson completes the collection. Together, these essays explore a series of important puzzles about constitutional change. These puzzles emanate from a familiar source: the dynamic interplay between means and ends in constitutional interpretation. Article V of the United States Constitution describes a set of means for amendment. Those means are not ends in themselves; there is nothing magical about two-thirds of Congress or three-quarters of the states that explains why the Constitution should change when, and only when, Article V's procedural gauntlet has been run. Presumably, Article V's procedures exist as means to the achievement of some independently attractive end or ends, such as justice or popular sovereignty. But, if that is so, Article V's explicitly specified means might be imperfectly suited to the ends presupposed either by the Article itself or by the Constitution more generally. And when a tension between means and ends exists, constitutional means might have to give way to constitutional ends. One thus has reason to ask whether compliance with Article V's procedural requirements is either necessary or sufficient to amend the Constitution. Until recently constitutional theorists have largely ignored such questions. They have been mistaken to do so, as the rich arguments in RESPONDING TO IMPERFECTION illustrate. Chapters by Bruce Ackerman and Akhil Amar summarize their well-known arguments that compliance with Article V is not NECESSARY to amend the Constitution. Levinson has elicited succinct, readable articulations of their positions from both Ackerman and Amar (neither exceeds thirty pages), an attraction which should earn this book a spot on the required reading list for virtually any course in American constitutional theory. Following the essays by Ackerman and Amar is a critique by David Dow, who defends Article V procedures as the exclusive means for constitutional amendment. In later chapters, Walter Murphy, Mark Brandon, and John Vile engage in a spirited debate about whether compliance with Article V's procedural mechanisms is SUFFICIENT to amend the Constitution. Suppose, for example, that an amendment authorizing slavery were proposed and ratified pursuant to Article V's procedures; might the substance of the amendment nevertheless render it invalid? Murphy, whose work pioneered modern inquiry into this topic, squarely endorses the idea of 'unconstitutional Page 187 follows: constitutional amendments'; Brandon does so in more qualified fashion; and Vile rejects it. Bracketing these debates about the necessity and sufficiency of Article V procedures are two other sets of essays. At the front of the book, chapters by Levinson and Stephen Griffin canvass various concepts of constitutional change. Levinson's chapter is excellent. At the close of the book, three essays provide comparative perspectives on constitutional amendment. Donald Lutz contrasts amendment practices in the fifty states and in foreign countries with practice under the United States Constitution; Stephen Holmes and Cass Sunstein co-author an essay discussing the amendment rules best-suited to constitutionalism in Eastern Europe; and Noam Zohar uses Jewish religious doctrine to draw an analogy between political and theological change. The contribution from Holmes and Sunstein combines theoretical sophistication and empirical detail in an especially rewarding fashion; Lutz's essay, though marred by some dubious efforts to draw normative conclusions from statistical patterns, offers a number of provocative observations. Finally, in a short but crucial essay in the center of the volume, Frederick Schauer asks whether it is possible to distinguish amendment from other forms of constitutional change (such as re-interpretation or revolution) on the basis of criteria external to a legal system. He answers in the affirmative. Schauer's positivist argument is thoughtful and precise, but ultimately unpersuasive. To identify some change as a constitutional amendment is to make a claim about that change's authority within a particular legal system; as such, the claim must be open to contest by participants in the constitutional system in the same way as any other claim about what the law is. (Dworkin, 1986). For that reason, one might say that RESPONDING TO IMPERFECTION challenges American constitutional scholars to take Article V seriously. One way to fail at that enterprise is to read Article V mechanically rather than purposively, and hence to miss the implicit tension between ends and means. Any attentive reader of RESPONDING TO IMPERFECTION should be cured of that vice. But another way to fail the test is to dismiss Article V entirely, and here the book is less successful. The best essays on American law in this volume are those which begin from Article V, and the constitutional text more generally, to explore the limits of Article V -- as Ackerman, Amar, Murphy and their interlocutors all do. This interpretive inquiry is indispensable if we are to develop criteria distinguishing 'constitutional amendment' from mere 'political change.' Unfortunately, not every author in the book is sensitive to this interpretive requirement -- so, for example, Griffin's contribution is substantially undermined by his largely unargued assertion that large-scale political change signals a constitutional amendment. In a book that rightly calls upon readers to take seriously such exotic ideas as the 'unconstitutional constitutional amendment' and 'structural amendment,' it seems fair to demand that the authors take seriously the more conventional, but in its own way equally imaginative, idea of 'radical re-interpretation of an existing, unamended Constitution.' Page 188 follows: The book's occasional lapses in this regard may have something to do with the theoretical proclivities of its editor, who candidly admits his doubt that anyone could, after appropriate deliberation, conclude that Article V procedures are, after all, both necessary and sufficient to identify constitutional amendments. As a result, Levinson is appropriately skeptical about thoughtless reliance upon Article V, but he is perhaps too willing to see Article V set aside entirely. If this collection has any substantial flaw, it is the absence of contributions from some especially thoughtful defenders of the constitutional logic of Article V. The essays by Dow and Vile are useful but too formalist to be fully satisfactory. Levinson himself notes with regret that it was not possible to get a chapter from William F. Harris, who has explored with great subtlety Article V's multiple amendment paths (the Article specifies two mechanisms for proposing amendments and two for ratifying them). (Harris, 1993). Also missing is any sample of the work of Lawrence G. Sager, who has defended Article V exclusivity as an important element in justice-seeking constitutionalism. (Sager, 1990). But these are quibbles, not intended to detract from an enthusiastic thumbs-up for this provocative collection of essays. Indeed, one of the most interesting questions raised by the book is why this topic has languished in obscurity for so long, and why it has so suddenly begun to attract substantial academic attention. Some of the book's contributors suggest that amendment's time has come because the United States stands in need of radical constitutional reform. Whether or not such a need exists, it does not adequately explain the arguments of Ackerman, Amar, or Murphy, whose influential theories bear little connection to any identifiable agenda for constitutional change. I would propose a different explanation. In the wake of the Warren Court's achievements, constitutional scholars became more interested in what judges should do than in what the Constitution means. As Levinson himself observed more than a decade ago (Levinson, 1981), the influential books by John Hart Ely (1980) and Jesse Choper (1980) were theories of judicial review, not theories of constitutional meaning. Judicial review has lost some of its luster in recent years, as the Supreme Court has moved in directions unsatisfying to liberal constitutional theorists and as evidence of the practical inefficacy of judge-led reform has mounted. Constitutional scholars have accordingly been drawn back to the Constitution and have found themselves with a fascinating challenge: how to justify the dramatic changes to constitutional thought wrought by the New Deal and the civil rights movement -- more precisely, how to justify these changes not by reference to the CAROLENE PRODUCTS footnote or some other theory of the judicial role but by reference to a theory of the Constitution. Rethinking the distinction between amendment and interpretation is one response to that challenge. If I am right about this claim, RESPONDING TO IMPERFECTION is as much or more about constitutional interpretation than about constitutional reform. Its publication may mark the renewed subordination of judicial review to Page 189 follows: constitutional interpretation -- and that is yet another reason to welcome this superb volume. References: Choper, Jesse. 1980. JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS. Chicago: University of Chicago Press. Dworkin, Ronald. 1986. LAW'S EMPIRE. Cambridge: Harvard University Press. Ely, John Hart. 1980. DEMOCRACY AND DISTRUST. Cambridge: Harvard University Press. Harris, William F. 1993. THE INTERPRETABLE CONSTITUTION. Baltimore: Johns Hopkins University Press. Levinson, Sanford. 1981. "Judicial Review and the Problem of the Comprehensible Constitution." TEXAS LAW REVIEW 59:395. Sager, Lawrence G. 1990. "The Incorrigible Constitution." 65 NEW YORK UNIVERSITY LAW REVIEW 65: 893. UNITED STATES V. CAROLENE PRODUCTS COMPANY, 304 U.S. 144 (1938).
The Law and Politics Book Review
Sanford Levinson has assembled a sparkling collection of essays on the theory of constitutional amendment. Responding to Imperfection belongs in the library of every student of the Constitution.... [An] enthusiastic thumbs-up for this provocative collection of essays.... [A] superb volume.
From the Publisher
"[A] provocative collection of essays. . . . [A] superb volume."—The Law and Politics Book Review

"Sanford Levinson has assembled a sparkling collection of essays on the theory of constitutional amendment. Responding to Imperfection belongs in the library of every student of the Constitution.... [An] enthusiastic thumbs-up for this provocative collection of essays.... [A] superb volume."—The Law and Politics Book Review

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Product Details

  • ISBN-13: 9781400821631
  • Publisher: Princeton University Press
  • Publication date: 1/24/1995
  • Sold by: Barnes & Noble
  • Format: eBook
  • Edition description: Course Book
  • Pages: 344
  • File size: 3 MB

Table of Contents

Acknowledgments1Introduction: Imperfection and Amendability32How Many Times Has the United States Constitution Been Amended? (A) < 26; (B) 26; (C) 27; (D) > 27: Accounting for Constitutional Change133Constitutionalism in the United States: From Theory to Politics374Higher Lawmaking635Popular Sovereignty and Constitutional Amendment896The Plain Meaning of Article V1177Amending the Presuppositions of a Constitution1458Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity1639The Case against Implicit Limits on the Constitutional Amending Process19110The "Original" Thirteenth Amendment and the Limits to Formal Constitutional Change21511Toward a Theory of Constitutional Amendment23712The Politics of Constitutional Revision in Eastern Europe27513Midrash: Amendment through the Molding of Meaning307Appendix: Amending Provisions of Selected New Constitutions in Eastern Europe319Contributors325Index327
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