Responding to Imperfection

340 Pages·1995·0.26 MB·English

by  Sanford Levinson

RESPONDING TO IMPERFECTION

RESPONDING TO IMPERFECTION
THE THEORY AND PRACTICE
OF CONSTITUTIONAL AMENDMENT
Sanford Levinson, Editor
PRINCETON UNIVERSITY PRESS PRINCETON, NEW JERSEY
Copyright(cid:211) 1995byPrincetonUniversityPress
PublishedbyPrincetonUniversityPress,41WilliamStreet,
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IntheUnitedKingdom:PrincetonUniversityPress,
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LibraryofCongressCataloging-in-PublicationData
Respondingtoimperfection:thetheoryandpracticeof
constitutionalamendment/SanfordLevinson,editor.
p. cm.
Includesindex.
ISBN0-691-08657-5(cl.:acid-freepaper)
ISBN0-691-02570-3(pa.:acid-freepaper)
1.UnitedStates—Constitutionallaw—Amendments.
2.Constitutionalamendments. I.Levinson,Sanford,1941– .
KF4555.A75R47 1995
342.73¢03—dc20
[347.3023] 94-27766 CIP
ThisbookhasbeencomposedinGalliard
“CrudeFoyer”fromCollectedPoemsbyWallaceStevens,
copyright1947byWallaceStevens,isreprinted
bypermissionofAlfredA.Knopf,Inc.
PrincetonUniversityPressbooksareprinted
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(Pbk.)
TO THE MEMORY OF
Judith Shklar
WHO FEARLESSLY ANALYZED
THE MEANING OF LEGALISM
IN THE LATE TWENTIETH CENTURY

Contents
Acknowledgments ix
One
Introduction:Imperfectionand Amendability
Sanford Levinson 3
Two
How Many Times Has the United States ConstitutionBeen
Amended? (A) <26; (B) 26; (C) 27; (D) >27: Accounting for
ConstitutionalChange
Sanford Levinson 13
Three
Constitutionalismin the United States: From Theory to Politics
Stephen M. Griffin 37
Four
Higher Lawmaking
Bruce Ackerman 63
Five
Popular Sovereignty and Constitutional Amendment
Akhil Reed Amar 89
Six
The Plain Meaning of Article V
David R. Dow 117
Seven
Amending the Presuppositionsof a Constitution
Frederick Schauer 145
Eight
Merlin’s Memory: The Past and Future Imperfect of the
Once and Future Polity
Walter F. Murphy 163
Nine
The Case against Implicit Limits on the Constitutional
Amending Process
John R. Vile 191
viii CONTENTS
Ten
The “Original” Thirteenth Amendment and the Limits to
Formal ConstitutionalChange
Mark E. Brandon 215
Eleven
Toward a Theory of ConstitutionalAmendment
Donald S. Lutz 237
Twelve
The Politics of ConstitutionalRevision in Eastern Europe
Stephen Holmes and Cass R. Sunstein 275
Thirteen
Midrash: Amendment through the Molding of Meaning
Noam J. Zohar 307
Appendix: Amending Provisions of Selected
New Constitutions in Eastern Europe 319
Contributors 325
Index 327
Acknowledgments
I AM GRATEFULto various programchairsoftheAmericanPoliticalSci-
ence Association, who allowed me to organize panels over a four-year
period that explored various aspects of the issues surrounding constitu-
tional change and the notion of “amendment.” Several of the papers in
this volume were first presented in that venue, and others were sug-
gested by the discussions that ensued. A key participant in two of those
panelswasWillHarris,oftheUniversityofPennsylvania.Unfortunately,
circumstances made it impossible for him to contribute to this volume,
but no one should doubt the immense impact—reflected explicitly in
several of the essays—that he has had on those who study the theory of
constitutional amendment. Chapter Four of his book The Interpretable
Constitution is essential reading for anyone who shares these interests
(as is, indeed, the entirebook).
Asalways,theUniversityofTexasLawSchoolwassupportiveinevery
way, not least by giving me the opportunity to teach a seminar on the
metatheory of constitutional amendment. My secretary, Cheryl Harris,
isunending inher conscientiousness andgoodcheer,whichmadeprep-
aration of the final manuscript much easier.
I am also grateful to Malcolm DeBevoise of Princeton University
Press for his consistent encouragement of this project, and for his toler-
ation of the inevitable delays attached to edited collections. I appreciate
as well Lois Krieger’s thoughtful copy editing. Most of all, though, I
mustthankthecontributorsthemselves,whoparticipatedinthisproject
with unfailing cooperation.