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When we use the term “amendment,” we are analogizing changes that happen outside the four corners of the text to the those that happen within it – and we know that the inside, textual ones happen through specified procedures that have a democratic component. The amendment idea thus suggests democratically legitimate change – a change carried out by the proper procedures, in recognizable ways. Moreover, the term “amendment” generally connotes legitimacy – not just a change, but a change made according to the rules and one that leaves the basic endeavor of democratic constitutionalism in place. If Congress or the president simply began violating the constitution, for instance, few would reach for the word “amendment” to describe what was happening. The idea of amendment also evokes something persistent and distinct from the constant tussle and fluctuations that characterizes ordinary politics. The author therefore proposes that when we talk about amending America’s unwritten Constitution, we are not typically thinking about evolution in our practices and understandings, but are trying to describe a special set of durable changes that we ought to regard as democratically legitimate.
In the landmark case Home Building & Loan Association v. Blaisdell (1934), the Supreme Court of the United States upheld a state-level debt relief statute that was quite similar to those it had long deemed to violate the Contracts Clause. The dissent even argued that the Contracts Clause was written precisely to prohibit this type of state legislation. Rather than seeking to understand or characterize this doctrinal shift, as most work on Blaisdell has done, this article argues that Contracts Clause doctrine had never actually eradicated the state practice of intervening in contracts. The article both highlights and explains the long-standing mismatch between Contracts Clause doctrine and state legislative practice that preceded this ruling. Whatever Blaisdell meant as a matter of doctrine, it should also be understood as evidence of a durable state-level commitment to protecting debtors from the potentially ruinous consequences of private economic bargains.
T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.
As the United States industrialized, its state constitutions began to include protections for laborers. In this article, I describe the origins of these constitutional provisions and ask why labor organizations and other reformers pursued their inclusion in state constitutions. I argue that they saw state constitutions as a vehicle to prompt reluctant legislatures to pass protective statutes, to entrench existing protections against future legislatures, to safeguard labor legislation from constitutional challenges in state courts, and to facilitate further union organizing. Labor activism in this arena is particularly interesting in light of the literature on constitutional change, which contends that constitutional development is a tool through which actors attempt to usher courts into political conflicts; in contrast, I will argue that unions turned to constitutional change in large part to exclude courts from policymaking. Further, the union activism on behalf of constitutional change serves as a challenge to the prominent view among many scholars of American political development and law that judicial hostility to worker rights and union organizing discouraged unions from demanding state protection or institutionalizing their demands through law.
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