Unintended Consequences and Constitutional Amendments
Unintended Consequences and Constitutional Amendments
This chapter focuses on the choice between two alternative means of effecting constitutional change: formal amendment and common-law judicial interpretation. A standard view in American constitutional theory is that amendments are presumptively harmful, because the limits of reason that afflict their enactors guarantee bad and unintended results. The chapter rejects this view and examines the epistemic costs and benefits of common-law constitutionalism administered by judges, on the one hand, and constitutional amendment, on the other, as alternative means for updating the Constitution in the face of changing circumstances. The claim that amendments are systematically futile, whether or not desirable, is also considered.
Keywords: constitutional change, formal amendment, judicial interpretation, common law constitutionalism, constitutional amendment, reason
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