Publication Date

2001

Publication Title

Harvard Law Review

Abstract

Article V of the Constitution specifies how the Constitution may be amended. Notwithstanding all the attention that constitutional amendments receive, however, our constitutional order would look little different if a formal amendment process did not exist. At least since the first few decades of the Republic, constitutional amendments have not been an important means by which the Constitution, in practice, has changed. Many changes have come about without amendments. In some instances, even though amendments were rejected, the law changed in the way the failed amendments sought. Several amendments that were thought to be important in fact had little effect until society changed by other means. Other amendments did little more than ratify changes that had already come about in other ways. If this thesis is correct, it suggests that precedents and other traditions are often as important as the text of the amended Constitution; that political activity, in general, should not focus on proposed constitutional amendments; and that American constitutional law is best seen as the result of a complex, evolutionary process, rather than of discrete, self-consciously political acts by a sovereign People.

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