Constitutional Amendments and the Constitutional ... - Chicago Unbound

guarantees a desired legal change nor is indispensable to it, the amendment may ... make, nor can it support, a general causal claim. ..... 247, 260-62 (2002). 11 ...
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Constitutional Amendments and the Constitutional Common Law Adrian Vermeule

Follow this and additional works at: public_law_and_legal_theory Part of the Law Commons Recommended Citation Adrian Vermeule, "Constitutional Amendments and the Constitutional Common Law," University of Chicago Public Law & Legal Theory Working Paper, No. 73 (2004).

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THE LAW SCHOOL THE UNIVERSITY OF CHICAGO September 2004 This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series: and The Social Science Research Network Electronic Paper Collection:

CONSTITUTIONAL AMENDMENTS AND THE CONSTITUTIONAL COMMON LAW Adrian Vermeule* Constitutions obsolesce rapidly, and must be updated over time to reflect changes in the polity’s circumstances and citizens’ values. What institution or process should be entrusted with the authority to do the updating? If periodic wholesale replacement of the constitution is infeasible, the plausible choices are the constitutional amendment process set out in Article V,1 flexible interpretation by judges under the banner of constitutional common law,2 or some mix of the two. Here I explore the question by comparing the relative merits of formal amendments and the constitutional common law as means of constitutional updating. I attempt to dispel some prominent arguments that unjustifiably privilege constitutional common law over the amendment process, and also attempt to sketch the empirical conditions under which either process proves superior to the other. To structure the discussion, I advance two subsidiary theses about constitutional amendment.3 The first is that constitutional amendments can and do change constitutional law, including the law in action as well as the formal constitutional text. The second is that there is no good general reason to prefer common-law updating to the amendment


Professor of Law, The University of Chicago. Thanks to Beth Garrett, Jacob Levy, John Manning, Eric Posner, Geof Stone, Lior Strahilevitz, Cass Sunstein, and participants at a University of Chicago faculty workshop for helpful comments. Special thanks to David Strauss for providing both detailed comments and a model of collegiality in the face of disagreement. Justin Rubin and Carli Spina provided excellent research assistance, and the Russell J. Parsons Fund provided generous support. 1 See U.S. Const. Art. V (establishing rules for enacting formal amendments to the constitutional text). 2 I do not use “constitutional common law” in Henry Monaghan’s sense of constitutionally inspired doctrine that might be overridden by legislation. See Henry Paul Monaghan, The Supreme Court, 1974 Term--Foreword: Constitutional Common Law, 89 HARV. L. REV. 1 (1975). Rather, I use the term to denote constitutional rules, not defeasible by ordinary legislation, that are elaborated by judges through precedent-based reasoning. See generally David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996)[hereinafter Strauss, Common Law]. So constitutional common law is short for something like “judge-made constitutional law” or “common-law constitutional exegesis.” Moreover, Parts I and II equate constitutional common law with judge-made law, temporarily bracketing questio