Paradox of Self-Amendment by Peter Suber It is almost incorrect to say that throughout this period [1804-65] the Constitution was unamended, for it was so expanded by the decisions of Marshall that they amounted to virtual amendments to its text. Despite what may have been Marshall's —and Warren's— alterations of the constitution, the judiciary still enjoys sufficient confidence to operate effectively. It has not even seen its power of amendment by interpretation attacked by legislatures, except rhetorically, although serious reductions in that power have long been advocated by the right wing. Lester Orfield believes that judicial amendments do ease the pressure for use of the AC. They "may be made to cover most problems that arise", but if the procedure under the AC is too difficult, then judicial amendments may too easily become "strained interpretations causing loss of confidence in the judiciary."[Note 8] Edward Corwin goes further and declares that the "main business of constitutional interpretation...is to keep the constitution adjusted to the advancing needs of the time."[Note 9] Orfield and Corwin tell us in effect that judicial amendments are effective and obligatory methods of adaptation to changing circumstances. The appeal to effectiveness is much more common than the appeal to obligation. Most of those who argue that judicial amendments are effective at keeping the constitution up to date are glad that the method exists; few regret it, and few will say that it is obligatory. Frederick Davenport typifies the proponents who stop short of finding judicial amendment obligatory:[Note 10] [The constitution] has thus far adapted itself remarkably well to the exigencies of our national life. It has proved to be a living, flexible constitution, and its flexibility has been determined more than anything else by the flexibility of mind of the Federal Supreme Court, by the changing philosophy, background, and human nature of the members of the Court. A stronger statement, almost disclaiming the question of legitimacy, is that of Francis H. Heller:[Note 11] Have the really important changes been accomplished by the article V amendment process or have they come about by judicial review? It would be idle to argue the point: the landmark decisions of the Supreme Court have done more to adapt the nation to change than has any amendment. Frederic Coudert argues that the danger of an unwritten constitution is abuse of power by an ineffectively limited government, that the dangers of a written constitution are rigidity and violence triggered by slow and difficult change, and that our system of judicial amendment allows us to escape both dangers.[Note 12] C.P. Patterson believes the power of judicial amendment does not provide the best of both worlds, as Coudert argued, but gives the Supreme Court "the same relation to our Constitution that the English Parliament has to the English Constitution."[Note 13] On the other hand many will admit the reality of judicial amendment only to criticize its wisdom or legitimacy. Writing in 1953, John C. Scatterfield remarked,[Note 14] Watching the judicial trends of the last quarter century has caused many of us to feel that the Constitution of the United States, 'like an old soldier, will never die, it only fades away.' Scatterfield represents a conservative school of jurisprudence that upholds the exclusivity of the AC, a limited role for courts, and the weak self- entrenchment of all law (binding until properly changed, changeable only by its own procedures). Scholars, by and large, have left this view behind. The authority of the original understanding of the text of the constitution, and even the coherence of the idea, has received less and less respect over the years, until now Paul Brest can argue that[Note 15] the practice of supplementing and derogating from the text and original understanding is itself part of our constitutional tradition. Courts need not avail themselves of the power of judicial amendment that has accrued to them, principally, in the last half-century. Often they do not. They may decline as calmly as the court in Maffie v. U.S., 209 F.2d 225, 227 (1954): If the Fifth Amendment privilege against self-incrimination is thought outmoded in the conditions of the modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion. Or it may wind up and reaffirm exclusivity in the name of the people, as the West Virginia Circuit Court of Appeals did in In Re Assessment of Kanawha Valley Bank, 144 W.V. 346, 109 S.E.2d 649, 673 (1959):[Note 16] This court does not have the power to amend, alter, or repeal any provision of the Constitution of this State. That is a prerogative that the people have reserved to themselves alone. It is within our power, though, and our paramount duty, to prevent others from amending or repealing any part of the organic law of this State except in the manner provided in the document itself. The modern agreement that judicial review can have an amendatory effect hides some difficult questions of theory. Does judicial amendment presuppose a violation of binding precedent or legislation?[Note 17] Is it logically possible for a Supreme Court ruling to be unconstitutional?[Note 18] If even formal amendments are powerless to divest citizens of vested rights, then can an interpretation do so on the ground that the right was never "actually" vested?[Note 19] If so, then perhaps judicial amendments possess even more power than the AC. 106