Constitutional amendment rules and interpretive fidelity to democracy

25 Aug 2014

Fidelity to ‘democracy’ is frequently assumed to be an important evaluative criterion for selecting between competing theories of constitutional interpretation. This article interrogates that assumption by examining a widely deployed argument against progressive judicial interpretation associated with ‘formalist’ theories: the argument that confining constitutional change to the formal amendment process better respects popular self-governance than updating constitutional meaning through judicial interpretation.

The article argues that taking this suggestion seriously would require either advocating for substantial reform to existing amendment procedures and practices, or rejecting constitutional entrenchment altogether — positions that are in tension with other commitments that formalist interpretive views commonly share. This analysis ultimately suggests that the preoccupation with democracy is at best a distraction from the real set of issues that guide one’s choice of interpretive approach; at worst, it allows debates about constitutional design to proceed as if they are debates about constitutional interpretation

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