AMENDING WITHOUT AMENDMENTS: A CHALLENGE TO THE AMERICAN CONSTITUTIONALISM
Abstract
The Constitution of the United States has been greatly adored for its longevity, and asserted to be a symbol of the American nation. The Constitution – a miracle performed by the Founding Fathers – is what constitutes the very identity of the Country, and what embraces the patriotic sentiments of the nation . It is widely argued that the document which established the framework for government in late eighteenth century has acclaimed its success due to its eternity, and turned out to be a secular Bible for We the People.
Recent scholarship, however, challenges the acclaimed success of the Constitution’s longevity. There are various indicators measuring the success of constitutions but evaluations of the United States Constitution’s performance generally focus on views how constitutional change has occurred. If change occurs through constitutionally spelled out unwieldy procedure, the case for its success is invigorated as the original text survives remarkably unchanged until now; But if important constitutional changes take place through other channels than constitutionally determined, claims of its success becomes controversial. The academic discussion on the issue can be reduced to a simple question: How many times has the United States Constitution been amended? The conventional answer having in mind seems to be frivolous.
To draw just as an example: since the end of nineteenth century, when Congress created the first powerful federal administrative agency, the growth in the power of administrative agencies has resulted in the transformation of the country into administrative state. Agencies enact substantive law – regulations – that occupy ten times the space of federal statutes. How could it happen when nowhere does the Constitution mention administrative agencies and, more importantly, when it explicitly vests all legislative power in Congress? Numerous similar examples can be made to depict how the constitutional order has departedn from the constitutional text.
The Purpose of this Essay is to dive into this problematic area of the United States Constitution which operates as binding law to restrain the government but, on the other hand, its broad-term provisions leave a certain leeway to be filled out by either judicial interpretation or political construction of the Constitution. The Essay focuses on informal means of changing the Constitution and the constitutional order. Part I of the Essay introduces the concept of constitutionalism, and discusses how it correlates to the nature of broad constitutional language. The preliminary conclusions drawn in Part I are furthered in Part II which concentrates on how judicial and political branches of government – those who most frequently speak in the name of the Constitution – interpret and construct the meaning of constitutional provisions, respectively. Part III, after referring to the concept of informal and formal constitutional amendments, turns on how successful can the Constitution be, if our perception over it constantly changes. In other words, how seriously we can take the Constitution if it fails to curb the government in a vigorous way.
