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Interpreting an Unamendable Text

PDF · Thomas W. Merrill · Mar-13-2018 · 71 Vand. L. Rev. 547 (2018)

Interpreting-an-Unamendable-Text

ABSTRACT

Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an especially difficult problem for interpreters, since the interpreter cannot rely on the implicit ratification of its efforts that comes about when an enacting body reviews and does not amend the efforts of the interpreter. Trapped in a one-sided echo chamber, the interpreter will increasingly rely on precedent as a source of legitimacy for its interpretive efforts. This, however, introduces other pathologies, including second-order unamendability, since the interpreter cannot overrule many of its precedents without also calling into question its fidelity to law. The Article suggests two interpretive strategies as a partial way out of this trap. One is to adopt a general “amendability canon” to the effect that disputes should be resolved under the more amendable text, when both an unamendable and a relatively more amendable source of law are available. The other, paradoxically, is to interpret unamendable texts in a Burkean, status-quo oriented fashion. This will discourage attempts to achieve legal change through interpretation of unamendable texts and encourage efforts to achieve such change through other means, such as new legislation and regulation, which will be inherently more amendable.

AUTHOR

Thomas W. Merrill
Charles Evans Hughes Professor, Columbia Law School.



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