Paradox of Self-Amendment by Peter Suber Association, [no vol. no.] (1936) 165-84, with a commend by R.E. Desverine, ibid. 185-205; Roscoe Pound, "The Constitution: Its Development, Adaptability, and Future," American Bar Association Journal, 23 (1937) 739-45; H.W. Anderson, "The Constitution: An Expanding Chart of Government," Boston University Law Review, 18 (1938) 491-510; K.J. Hogan, "Important Shifts in Constitutional Doctrine," John Marshall Law Quarterly, 4 (1939) 554-79; Thomas Reed Powell, "A Constitution for an Indefinite and Expanding Future," Washington Law Review, 14 (1939) 99- 117; H.W. Willis, "The Part of the United States Constitution Made By the Supreme Court," Iowa Law Review, 23 (1938) 165-214; H.W. Willis, "Constitution Making by the Supreme Court Since March 29, 1937," Indiana Law Journal, 15 (1940) 179-201; and C.P. Patterson, "The Supreme Court: Declarer or Amender: The Adaptation of the Constitution by the Supreme Court," Brooklyn Law Review, 10 (1940) 48-75. Since the New Deal era the fact of judicial amendment has become commonplace, and the debate has shifted from its occurrence to its desirability and legitimacy. A recent work arguing against its use is Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Harvard University Press, 1977. A casebook has been assembled to illustrate the operation of judicial amendment: Joel B. Grossman and Richard S. Wells, Constitutional Law and Judicial Policy-Making, John Wiley and Sons, 1972. 4. Lester Bernhardt Orfield, Amending the Federal Constitution, University of Michigan Press, 1942, p. 210. See similar views quoted near the beginning of Section 2.A above. 5. A strong argument that rigorous adherence to rules must always be superseded by justice is Noel Dermot O'Donoghue, "The Law Beyond the Law," American Journal of Jurisprudence, 18 (1973) 151-64. In the same volume of the same journal, Conrad Johnson argued, similarly, that judges must choose between acting like legislators and perpetuating injustice. "The Rule of Law and the Closure of the Legal System," 18 (1973) 35-56. 6. See Robert G. Dixon Jr., "Article V: The Comatose Article of our Living Constitution," Michigan Law Review, 66 (1968) 931-48. The record among the states is very different, if only because amendment is generally easier in the states. Francis Heller observes that before 1971, California had amended its constitution 375 times, South Carolina 398 times, Louisiana 496 times, and Georgia 691 times. Francis H. Heller, "Article V: Changing Dimensions in Constitutional Change," University of Michigan Journal of Law Reform, 7 (1973) 71-89. T.C. Chadick has calculated that, on average, Texas has amended its constitution once every six months and five days. T.C. Chadick, "Check-Up on Constitutional Revision," Texas Bar Journal, 31 (1968) 205-08. 7. "Report of a Committee of the New York State Bar Association, 1890," Reports of the NYBA, vol. 13, p. 140. Quoted in Shalers, United States, vol. II, p. 500. 8. Lester Bernhardt Orfield, Amending the Federal Constitution, University of Michigan Press, 1942, at pp. 214-15. On Orfield's latter point, see Coudert, op. cit. at pp. 364-65: if the procedure of the AC becomes too difficult, judicial amendment will become more prominent; but if judicial amendment becomes too prominent or too easy, "the foundation of our government, —respect for the constitution— will be sapped." 9. Corwin, op. cit. at p. 303. 10. Davenport, op. cit. at p. 752. 11. Heller, op. cit. at p. 75. See Paul G. Kauper, "The Alternative Amendment Process: Some Observations," Michigan Law Review, 66 (1969) 903-20, at p. 917. 12. Courdert, op. cit. at p. 335. 13. Patterson, op. cit. at p. 54. 14. John C. Scatterfield, "Constitutional Amendment by Treaty and Executive Agreement," Mississippi Law Journal, 24 (1953) 280-94, at pp. 293-94. Scatterfield's work will be discussed more thoroughly in Section 17, below. 15. Paul Brest, "The Misconceived Quest for the Original Understanding," Boston University Law Review, 60 (1980) 204, at p. 225. 16. Cf. Stoliker v. Waite, 359 Mich. 65, 101 N.W.2d 299, 305 (1964), and Knapp v. O'Brien, 288 Minn. 103, 179 N.W.2d 88, 90 (1970). 17. To this question Oliver Wendell Holmes seems to have given a negative answer in The Common Law, Little, Brown, and Co., 1881, at p. 36: [A]s the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at least a new form, from the grounds to which they have been transplanted. Holmes then calls for a "more conscious recognition of the legislative function of the courts." Ibid. 18. See Patterson, op. cit. at p. 54: 109