Updating the Constitution: Amending, Tinkering, Interpreting

21 Pages Posted: 4 Feb 2020

See all articles by Richard S. Kay

Richard S. Kay

University of Connecticut School of Law

Date Written: January 15, 2020


This is a revised version of a presentation made at the annual Constitutional Law Symposium at Drake University School of Law in April 2019.

The U.S. Constitution is now 230 years old, and it is showing its age. Its text, taken in the sense that its enactors understood it, is, unsurprisingly, inadequate to the needs of a large, populous twenty-first century nation. The Constitution creates a government that is carefully insulated from the democratic preferences of the population. It fails to vest the central government with the tools needed to manage and regulate a vast, complicated, and interrelated society and economy. On the other hand, it guarantees its citizens protection of only a limited set of human rights.

Notwithstanding these blatant defects, the means provided in the constitutional text to change it, to improve it, are insufficient to make it appropriate for current conditions. There is reason to be skeptical of studies purporting to measure the difficulty of constitutional amendment procedures. But combined with an inspection of the text and the history of amendment, this research is persuasive and supports the claim that reliance on Article V’s procedures are unlikely to successfully reform the Constitution. On top of these objective measures, moreover, constitutional revision in the United States is hampered by a widely held, though uninformed, opinion that the current Constitution is still protecting national welfare and that any change—any tinkering—with the rules in that document bears a heavy burden of persuasion.

Reform by amendment, that is, appears to be a dead end. The U.S. judiciary, however, has, in an important way, come to the rescue of a polity that would otherwise be in a perpetual thrall to the principles of the eighteenth century. In “interpreting” the Constitution, the courts have gone a long way to correct the defects listed. But their “interpretations” have little relationship to the fixed rules installed by the constitutional enactors. Judges have assumed what amounts to a power of constitutional amendment. But such an amendment technique is irregular, unpredictable, and devoid of the sanction of the “people,” past or present, whose assent is usually thought essential to constitutional legitimacy. The United States has escaped the disadvantages of an outdated Constitution but at the price of subverting the constitutional rule of law.

Keywords: constitution, amendment, interpretation, courts

JEL Classification: K1, K10, K40

Suggested Citation

Kay, Richard S, Updating the Constitution: Amending, Tinkering, Interpreting (January 15, 2020). Drake Law Review, Vol. 67, No. 4, 2019, Available at SSRN: https://ssrn.com/abstract=3521456

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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