America's Amoral Constitution

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See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; Yale University - Law School; University of Toronto - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: July 27, 2020

Abstract

The celebrated United States Constitution does not derive its legitimacy from morality. Its legitimacy is rooted in an amoral code structured around the peculiar value of outcome-neutrality. By design, the Constitution does not evaluate whether a lawful choice is morally right or wrong; it evaluates only whether the choice satisfies the procedures the Constitution requires for it to have been made. What matters, then, is not the content of the choice. It is the very act of choosing. These fiercely democratic foundations serve as both the font of the Constitution’s popular legitimacy and more ominously also the greatest threat to the liberal democratic principles that today define the Constitution in its common perception at home and abroad. In this Article, I show that the amorality of the Constitution permeates every part of the country’s constitutional amendment apparatus. I draw from text, theory, and history to reveal an important if shocking truth about Constitution: no principle is inviolable, no right is absolute, and no rule is unamendable.

Keywords: United States Constitution, Article V, Constitutional Amendment, Judicial Review, State Constitutions, Unamendability, Constitutional Change

Suggested Citation

Albert, Richard, America's Amoral Constitution (July 27, 2020). Available at SSRN: https://ssrn.com/abstract=

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512.213.1113 (Phone)

HOME PAGE: http://law.utexas.edu/faculty/richard-albert

Yale University - Law School

127 Wall Street
New Haven, CT 06520-8215
United States

HOME PAGE: http://www.law.yale.edu

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca

Universidad Externado de Colombia - Facultad de Derecho

Calle 12 # 1-17 este
Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

HOME PAGE: http://https://www.uexternado.edu.co/derecho/

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

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