The (myth of un) amendability of the US Constitution and the democratic component of constitutionalism

摘要

The article explores certain claims about the amendment process of the US Constitution. Empirically, it argues that the difficulty posed by formal procedures in obtaining textual amendments of the US Constitution is overstated, if one looks to history and to analogous constitutional requirements for override of presidential vetoes. It suggests that the low amendment rate may result not only from its formal procedures, and exaggerated estimates of their difficulty, but also from ideological or emotional opposition to amendment, as opposed to other methods of legal change. As a normative matter, it argues that, notwithstanding important arguments for caution in seeking constitutional amendment, a constitution that is truly not amendable by its own formal procedures, that relies on indefinitely long tenures for its highest court, and that is committed to judicial supremacy in constitutional interpretation, is in real tension with the democratic component of democratic constitutionalism.