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An increasing number of constitutional theorists, within both the legal academy and university departments of government, are focusing on the conceptual and political problems attached to the notion of constitutional amendment. Amendments are, among other things, recognitions of the imperfection of existing schemes of government. The relative ease or difficulty of amendment has significant implications for the ways that governments respond to problems that call either for new structures of governance or new powers for already established structures. This book brings together essays by leading legal authorities and political scientists on a range of questions from whether the U.S. Constitution is subject to amendment by procedures other than those authorized by Article V to how significant change is conceptualized within classical rabbinic Judaism. Though the essays are concerned for the most part with the American experience, other constitutional traditions are considered as well.
The contributors include Bruce Ackerman, Akhil Reed Amar, Mark E. Brandon, David R. Dow, Stephen M. Griffin, Stephen Holmes and Cass R. Sunstein, Sanford Levinson, Donald Lutz, Walter Murphy, Frederick Schauer, John R. Vile, and Noam J. Zohar.
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RESPONDING TO IMPERFECTION
RESPONDING TO IMPERFECTION
T H E T H EOR Y A N D P R A C T I C E OF CONS T I TU T ION AL AMENDMEN T
Sanford Levinson, Editor
PRINCETON UNIVERSITY PRESS
PRINCETON, NEW JERSEY
Copyright 1995 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, Chichester, West Sussex All Rights Reserved Library of Congress Cataloging-in-Publication Data Responding to imperfection : the theory and practice of constitutional amendment / Sanford Levinson, editor. p. cm. Includes index. ISBN 0-691-08657-5 (cl. : acid-free paper) ISBN 0-691-02570-3 (pa. : acid-free paper) 1. United States—Constitutional law—Amendments. 2. Constitutional amendments. I. Levinson, Sanford, 1941– . KF4555.A75R47 1995 342.73′03—dc20 [347.3023] 94-27766 CIP This book has been composed in Galliard “Crude Foyer” from Collected Poems by Wallace Stevens, copyright 1947 by Wallace Stevens, is reprinted by permission of Alfred A. Knopf, Inc. Princeton University Press books are printed on acid-free paper and meet the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources Printed in the United States of America 10
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T O T H E M E MOR Y OF
Judith Shklar W HO F EA RLE SSLY A NA LYZED THE M EAN I NG OF LEGAL ISM I N T H E L AT E T W E N T I E T H C E N T U R Y
Contents
Acknowledgments
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One Introduction: Imperfection and Amendability Sanford Levinson
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Two How Many Times Has the United States Constitution Been Amended? (A) < 26;="" (b)="" 26;="" (c)="" 27;="" (d)=""> 27: Accounting for Constitutional Change Sanford Levinson
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Three Constitutionalism in the United States: From Theory to Politics Stephen M. Griffin
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Four Higher Lawmaking Bruce Ackerman
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Five Popular Sovereignty and Constitutional Amendment Akhil Reed Amar
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Six The Plain Meaning of Article V David R. Dow
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Seven Amending the Presuppositions of a Constitution Frederick Schauer
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Eight Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity Walter F. Murphy
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Nine The Case against Implicit Lim