Jonathan L. Marshfield (University of Arkansas - School of Law) has posted Amendment Creep (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have cited to flexible amendment rules in state constitutions to support judicial restraint. Although largely unnoticed by scholars, it seems that amendment rules are creeping into other areas of constitutional law.
This Article provides the first systematic investigation and assessment of “amendment creep” – the phenomenon where judges explicitly draw on amendment rules to interpret constitutional provisions unrelated to formal amendment. It concludes that federal and state amendment rules contain constitutional substance that can assist judges and lawyers in resolving many diverse constitutional disputes. Based on an extensive review of relevant Supreme Court and state high court opinions, the Article constructs a typology of amendment-based arguments. The Article concludes that amendment creep is an extension of a familiar form of constitutional reasoning known as structuralism, and that it may have several normative benefits for constitutional adjudication – such as promoting overall constitutional coherence and ensuring that judges give appropriate consideration to the democratic values that amendment rules embed in the constitutional framework.