Constitutional entrenchment is real only where not subject to judicial or interpretive change

Evidence

A functional perspective complicates the assessment of constitutional entrenchment in other ways as well. Most fundamentally, once we look beyond the formal notion that constitutional change can only be accomplished through Article V, the extent to which constitutional law is in fact politically entrenched becomes an open question. Constitutional rules and rights that can be changed simply by shifting the vote of a single Supreme Court Justice (or the opinion of a single President) may be no more entrenched, and may be quite a bit less entrenched, than an ordinary statute. The formal vision of an entrenched constitution contrasts with the widely recognized reality of continuous constitutional change through processes of judicial interpretation, political construction, and popular acceptance. Dramatic structural changes—such as the growth of the administrative state, the decline of federalism, and the expansion of presidential power—have taken place through these channels, in response to shifting patterns of political demand. The scope and existence of constitutional rights—for example, in the contexts of economic liberty, free speech, race and gender equality, and sexual orientation—have also changed markedly in response to shifts in public opinion and political mobilization. Generations of political scientists and legal scholars have documented that the content of constitutional law tends to converge with the preferences of national-level majorities. — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 464

Categorization

• XREF: Core to the stated purpose: this gives a mechanism whereby formally-embedded ideology can nonetheless be eroded through interpretation — formalization alone does not guarantee stickiness. — connects to: Theorists split on whether constitutional and legislative entrenchment are normatively equivalent. — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 448; Ordinary statutes can carry quasi-constitutional entrenchment power — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 463; Structural constitutional rules resist change despite eroding functional justification (+6 more)
• DEEPTHINKING: Directly addresses the reader’s central question: entrenchment in law does not confer durability if a single Justice or President can reverse it; true stickiness lies elsewhere.
• QUESTION: If constitutional content converges with national majority preferences, what distinguishes durable ‘sticky’ ideologies from those merely tracking current majorities?

Broader Connections

• Functional political entrenchment works without changing formal legal rules #complicates (0.85) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 173
• Ordinary statutes can carry quasi-constitutional entrenchment power #complicates (0.82) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 463
• Structural constitutional rules resist change despite eroding functional justification #qualifies (0.78)
• Judicial discretion is channeled by constraints, not eliminated. #qualifies (0.77) — G. Alan Tarr, Judicial Process and Judicial…, 188
• U.S. constitutional text treats entrenchment as restricted to constitutional amendment. #expands (0.76) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 131
• Courts suppress entrenchment indirectly by enforcing individual rights, not systemic values #qualifies (0.74) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 108