4 - The Role of the People in Unwritten Amendments

Summary

When we use the term “amendment,” we are analogizing changes that happen outside the four corners of the text to the those that happen within it – and we know that the inside, textual ones happen through specified procedures that have a democratic component. The amendment idea thus suggests democratically legitimate change – a change carried out by the proper procedures, in recognizable ways. Moreover, the term “amendment” generally connotes legitimacy – not just a change, but a change made according to the rules and one that leaves the basic endeavor of democratic constitutionalism in place. If Congress or the president simply began violating the constitution, for instance, few would reach for the word “amendment” to describe what was happening. The idea of amendment also evokes something persistent and distinct from the constant tussle and fluctuations that characterizes ordinary politics. The author therefore proposes that when we talk about amending America’s unwritten Constitution, we are not typically thinking about evolution in our practices and understandings, but are trying to describe a special set of durable changes that we ought to regard as democratically legitimate.