The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic Constitution

Drake Law Review, 2007

18 Pages Posted: 21 Sep 2007

Abstract

This paper is written in response to Sandy Levinson's new book, "Our Undemocratic Constitution". Levinson claims that we ought to make it easier to hold constitutional conventions so we can fix the hard-wired portions of the Constitution - those portions that cannot be changed through the informal amendment process. The problem with Levinson's argument is that it ignores the ways in which informal amendment is linked to formal amendment. Making formal amendment easier might well undermine the informal amendment process in ways we would find significant if we are fans of the latter. The argument rests on a hydraulics metaphor. Levinson argues that Article V has blocked our constitutional reform energies, preventing their release, and he wants to throw open the gate and allow those impulses to take their most natural path - formal constitutional amendment. What I argue here is that by blocking most formal amendments, Article V effectively redirects those constitutional energies into different, potentially more productive channels. I also briefly sketch some of the reasons we might value the informal amendment process. One reason to value informal amendment is that it problematizes constitutional debate in the same way that Bruce Ackerman claims that the separation of powers problematize representation. Just as the existence of other representative institutions makes it difficult for any branch to claim to be the authentic voice of the people, so too do the vagueness and quasi-illicit status of informal amendments make it difficult for anyone to claim unique access to the "right" understanding of the Constitution.

Keywords: Article V, Constitution, amendment, informal amendment, popular constitutionalism, social movements

Suggested Citation

Gerken, Heather, The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic Constitution. Drake Law Review, 2007, Available at SSRN: https://ssrn.com/abstract=1015884

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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