Marshfield, Jonathan L.
November 2016
Michigan Law Review;Nov2016, Vol. 115 Issue 2, p215
Academic Journal
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.


Related Articles

  • First Amendment Court Cases.  // Communication: Journalism Education Today;Spring2008, Vol. 41 Issue 3, p26 

    The article offers step-by-step instructions for organizing a group presentation for a simulation of "Meet the Press" involving First Amendment issues.

  • Drug marketing based on prescription records faces legal challenge.  // Public Relations Tactics;May2011, Vol. 18 Issue 5, p4 

    The article announces that pharmaceutical companies will be facing strict limitations on the market of drugs to doctors due to the impeding re-enactment of laws concerning the violation of the prescription-confidentiality law to the free speech protections of the First Amendment.

  • VIDEO GAME VIOLENCE AND THE TECHNOLOGY OF THE FUTURE. Gerson, Eric T. // Brooklyn Law Review;Spring2011, Vol. 76 Issue 3, p1121 

    The article explains why the U.S. Constitution's First Amendment jurisprudence on violent content in video games is based on premises that may soon be outdated and rendered irrelevant. It explains why cases like American Amusement Machine Association v. Kendrick may become untenable as...

  • Amending the Amendment.  // America;5/25/1963, Vol. 108 Issue 21, p736 

    The author reflects on the issue of revising the religion clause in the First Amendment in the U.S. The author argues that it is worth it to think about the issue surrounding the likely revision of the First Amendment after the U.S. Supreme Court ruled against the New York school-prayer case....

  • Expanding the Court's First Amendment Accessibility Framework for Analyzing Ballot Initiative Circulator Regulations. Senior, Jennifer S. // University of Chicago Legal Forum;2009, p529 

    The article offers the author's perspectives that is critical on the assumption that standard ballot accessibility factor have uniformly affected initiating groups under the legalities of the First Amendment. Suggested is that the standards should have been applied to a greater degree to account...

  • Cover on Trial. PLAGER, S. JAY; FEARON, STEPHEN J.; DAVIS, W. Mc A.; STRINER, RICHARD; CRESS, RICHARD; ZIMMERMAN, CARL H. // American Scholar;Summer2015, Vol. 84 Issue 3, p3 

    Several letters to the editor are presented in response to the cover article "The Embattled 1st Amendment," by Lincoln Caplan, originally published in the Spring 2015 issue, discussing U.S. judicial history of the First Amendment.

  • Past Bad Speakers, Performance Bonds & Unfree Speech: Lawfully Incentivizing "Good" Speech or Unlawfully Intruding on the First Amendment? Calvert, Clay // Harvard Journal of Sports & Entertainment Law; 

    Using the recent legal woes of television pitchman Kevin Trudeau as an analytical springboard, this article examines the multiple First Amendment issues and red flags raised by the imposition of performance bonds on "past bad speakers" as conditions precedent for their future speech. Performance...

  • Churches as First Amendment Institutions: Of Sovereignty and Spheres. Horwitz, Paul // Harvard Civil Rights-Civil Liberties Law Review;Winter2009, Vol. 44 Issue 1, p79 

    This Article offers a novel way of approaching the role of churches and other religious entities within the framework of the First Amendment. Beyond that, it offers a broader organizing structure for the legal treatment of "First Amendment institutions"--entities whose fundamental role in...

  • PHOTOS OF THE FALLEN AND THE DOVER BAN: AN ANALYSIS OF BANNING THE MEDIA FROM PHOTOGRAPHING MILITARY COFFINS. Kelley, Bradford J. // Kansas Journal of Law & Public Policy;Fall2016, Vol. 26 Issue 1, p116 

    The article argues that efforts to restrict media photography of military coffins returning from the battlefield violate the freedom of press and speech values underlying the U.S. Constitution's First Amendment. Topics discussed include legislative efforts to eliminate the ban; reviews important...


Read the Article


Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics