Can the Constitution be legitimately, albeit implicitly, amended by the Supreme Court? The possibility of implicit constitutional amendment - most forcefully advocated by Professor Bruce Ackerman as "transformative" Supreme Court decisions - has been articulated to justify, legitimate, and entrench various radical reinterpretations of the Constitution, most notably the New Deal Court's vast expansion of the power to regulate commerce. The article concludes that such implicit constitutional amendments are theoretically illegitimate and provide strong disincentives for "We the People" to become politically active in order to "correct" flaws in the original Constitution or interpretations thereof that are deemed no longer normatively desirable. They bypass the process of amendment provided for in Article V and encourage popular political lethargy and judicial paternalism.
Elizabeth Price Foley and Elizabeth C. Price,
Constitutional Fidelity and the Commerce Clause: A Reply to Professor Ackerman
, 48 Syracuse L. Rev. 139
Available at: https://ecollections.law.fiu.edu/faculty_publications/417