Do Constitutional Amendments Matter?

Abstract

Article V of the Constitution specifies how the Constitution may be amended. Notwithstanding all the attention that constitutional amendments receive, however, our constitutional order would look little different if a formal amendment process did not exist. At least since the first few decades of the Republic, constitutional amendments have not been an important means by which the Constitution, in practice, has changed. Many changes have come about without amendments. In some instances, amendments were rejected, but the law changed in the way the failed amendment sought anyway. Several amendments, thought to be important, in fact had little effect until the society changed by other means. Other amendments did little more than ratify changes that had already come about in other ways. If this thesis is correct, it suggests that the text of the amended Constitution is much less important than is generally thought; that political activity, in general, should not be focused on proposed constitutional amendments; and that American constitutional law should be thought of as the result of a complex, evolutionary process, not of discrete, self-consciously political acts by a sovereign People.