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Law and the Limits of Reason$
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Adrian Vermeule

Print publication date: 2008

Print ISBN-13: 9780195383768

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195383768.001.0001

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Unintended Consequences and Constitutional Amendments

Unintended Consequences and Constitutional Amendments

Chapter:
(p.163) Chapter 5 Unintended Consequences and Constitutional Amendments
Source:
Law and the Limits of Reason
Author(s):

Adrian Vermeule

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195383768.003.0005

This chapter focuses on the choice between two alternative means of effecting constitutional change: formal amendment and common-law judicial interpretation. A standard view in American constitutional theory is that amendments are presumptively harmful, because the limits of reason that afflict their enactors guarantee bad and unintended results. The chapter rejects this view and examines the epistemic costs and benefits of common-law constitutionalism administered by judges, on the one hand, and constitutional amendment, on the other, as alternative means for updating the Constitution in the face of changing circumstances. The claim that amendments are systematically futile, whether or not desirable, is also considered.

Keywords:   constitutional change, formal amendment, judicial interpretation, common law constitutionalism, constitutional amendment, reason

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