America's Amoral Constitution

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 un-amendable.

Keywords: United States Constitution, Article V, Constitutional Amendment, Judicial Review, State Constitutions, Un-amendability, Constitutional Change