Change is the Only Constant: Unwritten Amendments and the Courts

Abstract

The suggestions that there may be unwritten amendments to the Constitution and that courts may have a role in creating those amendments obviously and immediately trigger a variety of interconnected debates. We quickly find ourselves on well-trodden and largely normative ground – the proper approach to constitutional interpretation, the significance of stare decisis, and the implications and appropriateness of judicial review. In an effort to avoid those arguments, this chapter begins with a descriptive perspective. It is, after all, undeniable that at different times in our history, different understandings and applications of various constitutional provisions have held sway. We have had shifting constitutional equilibria, as when we moved from the Lochner era to the New Deal. Regardless of one’s views of whether any particular move is right or wrong as a matter of constitutional interpretation and practice, such changes undeniably occur.

The chapter first describes when and why such changes might be considered unwritten constitutional amendments. While there could easily be disagreement about whether particular legal developments qualify, the overall thrust of the idea is to identify constitutional change that is stable enough to be considered an unwritten amendment – a move from one constitutional equilibrium to another. The second section of the chapter explores three case studies: (1) the abandonment of the Reconstruction Amendments beginning in the late 1870s, (2) the development of the constitutional law governing sex discrimination, and (3) the state of the law around abortion, in which, there has long been no constitutional equilibrium. These case studies yield the insights that court decisions alone cannot create unwritten amendments and that even apparently stable equilibria can be destabilized and changed.

The last part of the chapter argues that because it is true, as a factual matter, that our understanding of the Constitution changes over time, and that at times those understandings rise to the level of an unwritten amendment, it is critical to consider whether particular case holdings is the extent to which they allow and encourage democratic contestation about the Constitution to continue. Generally, when people express concerns about the problem of courts thwarting the will of the majority, they are talking about the power of judicial review to strike down laws establishing a policy that has majority support. But those concerns often fail to recognize that debate can continue even after those decisions issue. The counter-majoritarian difficulty, however, is much more dangerous if and when court holdings undermine fully participatory democracy.

Keywords: amendments, constitution, supreme court, originalism, abortion, equal rights amendment, Brown v. Board of Education, Reconstruction, Redemption, Jim Crow