Abstract
The extreme difficulty of amending the U.S. Constitution plays a central but largely unexamined role in theoretical debates over interpretive choice. In particular, conventional wisdom assumes that the extreme difficulty of Article V amendment weakens the case for originalism. This view might ultimately be correct, but it is not the freestanding argument against originalism it is often presumed to be. Rather, it depends on contestable normative and empirical premises that require defense. If those premises are wrong, the stringency of Article V might actually strengthen the case for originalism. Or Article V might have no impact on that case one way or another. This “complexity thesis” highlights and clarifies the role that difficulty of amendment plays across a range of significant interpretive debates, including those surrounding writtenness, John Hart Ely’s representation-reinforcement theory, interpretive pluralism, and originalism as a theory of positive law. It also has important implications for the under-studied relations between statutory and constitutional interpretation and federal and state constitutional interpretation.
Highlights
The extreme difficulty of amending the U.S Constitution plays a central but largely unexamined role in theoretical debates over interpretive choice
In contrast to the arguments we have identified as endogenous, those we have identified as exogenous are unaffected by the difficulty of constitutional amendment
Given the embarrassment many originalists confessedly feel about Article V,61 it might seem surprising to find them embracing arguments premised on the difficulty of constitutional amendment
Summary
The extreme difficulty of amending the U.S Constitution is a commonplace of the constitutional law literature. Most theorists have assumed that a difficult amendment process makes originalism less attractive and nonoriginalism more so. On some empirical assumptions and normative premises, increasing the difficulty of amendment makes originalism less attractive. The Part concludes with a discussion of the normative literature on voting rules and constitutional amendment procedures. This literature is relevant to our project but does not subsume it. The relationship between difficulty of amendment and interpretive choice is not a proxy for the debate over optimal constitutional amendment procedures
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