Difficulty of Amendment and Interpretive Choice

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.