Formal and Informal Amendment of the United States Constitution

37 Pages Posted: 13 Feb 2018 Last revised: 15 Feb 2018

See all articles by Richard S. Kay

Richard S. Kay

University of Connecticut School of Law

Date Written: December 8, 2017

Abstract

This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews Article V of the United States Constitution setting out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, if not the hardest. constitution in the world to change. It goes on to discuss possible limits on the substance of constitutional amendments. Some of these are set out in Article V but, as some other jurisdictions have recognized, there may be further, implicit restrictions based on the distinction between constitutional amendment and constitutional replacement. Many issues associated with constitutional amendment remain unresolved as a result of the Supreme Court’s reluctance to pronounce on the validity of amendments. Finally, the report compares the Article V process to the very significant constitutional change that has been accomplished through the constitutional interpretation of the United States Supreme Court. It concludes that jurisdictions like the United States where the constitution is treated with undisguised reverence, face a dilemma. Limiting constitutional revision to the formal process will eventually result in a constitution that is radically unsuitable for a modern society. But allowing irregular modification by judges sacrifices the key values of security, stability and predictability, the reasons we have a written constitution in the first place.

Keywords: Constitutional Law, Constitutional Amendment, Legal History

JEL Classification: K, K10, K30

Suggested Citation

Kay, Richard S, Formal and Informal Amendment of the United States Constitution (December 8, 2017). American Journal of Comparative Law, 2018. Available at SSRN: https://ssrn.com/abstract=3116988

Richard S Kay (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5262 (Phone)

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