Updating Constitutional Rules

Abstract

The dominant mode of updating constitutional meaning in the United States is via judicial interpretation, or ordinary legislation, rather than constitutional amendment. On the Supreme Court’s current approach to interpretation, this also creates a serious potential problem when it comes to the updating of constitutional “rules”, as opposed to “standards” – because when it comes to such rules, the Court generally declines to adopt an evolutionary approach to the interpretation and also often strikes down attempts by Congress or state legislatures (or even voters) to pass substitute updating legislation existence. The article, however, argues that at least part of this current approach by the Court is mistaken, and that when it comes in particular to attempts by Congress or state legislatures to pass such updating legislation, the Court should instead apply a clear margin of deference to determining the validity of relevant legislative action. While theoretically novel, clear precedent for such an approach can be found in federal courts’ approach to the Treaty Clause, as well as several other constitutional contexts. By its indirect nature, such an approach also largely avoids potential objections to more direct forms of interpretive updating by the Court in the context of various constitutional rules.