Vanderbilt Law Review Volume 71 | Issue 2 Article 4 3-2018 Interpreting an Unamendable Text Thomas W. Merrill Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Administrative Law Commons, and the Constitutional Law Commons Recommended Citation Thomas W. Merrill, Interpreting an Unamendable Text, 71 Vanderbilt Law Review 547 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol71/iss2/4 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact
[email protected]. Interpreting an Unamendable Text Thomas W. Merrill* 'A state without the means of some change is without the means of its conservation." -Edmund Burke' 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 interpretercannot rely on the implicit ratificationof its efforts that comes about when an enacting body reviews and does not amend the efforts of the interpreter.