Difficulty of Amendment and Interpretive Choice

1 Journal of Institutional Studies 6 (2015)

Arizona Legal Studies Discussion Paper No. 15-23

68 Pages Posted: 4 Jul 2015 Last revised: 1 Feb 2016

Andrew Coan

University of Arizona, James E. Rogers College of Law

Anuj C. Desai

University of Wisconsin Law School

Date Written: January 31, 2016

Abstract

The extreme difficulty of amending the U.S. Constitution plays a central but largely unexamined role in theoretical debates over interpretive choice. In particular, conventional wisdom assumes that the extreme difficulty of Article V amendment weakens the case for originalism. This view might ultimately be correct, but it is not the freestanding argument against originalism it is often presumed to be. Rather, it depends on contestable normative and empirical premises that require defense. If those premises are wrong, the stringency of Article V might actually strengthen the case for originalism. Or Article V might have no impact on that case one way or another. This “complexity thesis” highlights and clarifies the role that difficulty of amendment plays across a range of significant interpretive debates, including those surrounding writtenness, John Hart Ely’s representation-reinforcement theory, interpretive pluralism, and originalism as a theory of positive law. It also has important implications for the under-studied relations between statutory and constitutional interpretation and federal and state constitutional interpretation.

Keywords: Constitutional Amendment, Interpretive Choice, Article V, Constitutional Interpretation, Originalism, Nonoriginalism, Dead Hand Problem

Suggested Citation

Coan, Andrew and Desai, Anuj C., Difficulty of Amendment and Interpretive Choice (January 31, 2016). 1 Journal of Institutional Studies 6 (2015); Arizona Legal Studies Discussion Paper No. 15-23. Available at SSRN: https://ssrn.com/abstract=2626145 or http://dx.doi.org/10.2139/ssrn.2626145

Andrew Coan (Contact Author)

University of Arizona, James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

Anuj C. Desai

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States
608-263-7605 (Phone)
608-262-5485 (Fax)

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