Amendment Process (Outside Article V)
AMENDMENT PROCESS (OUTSIDE ARTICLE V)
Few constitutional rules are as important as those regarding amendment because these rules define the conditions under which all other constitutional norms may be displaced. It is commonly believed that the words of Article V specify with precision the necessary and sufficient conditions for legitimate constitutional change:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other Mode of ratification may be proposed by the Congress; Provided that … no State, without its Consent, shall be deprived of its equal Suffrage in the senate.
Yet things are not so simple. First, the procedures seem far less precise than one might expect. Can Congress call for a constitutional convention limited by subject matter? Does the President have any presentment role? What voting rule must a convention follow? What apportionment ratio must it follow? Who sets the rules as to selection of delegates? The spare words of Article V are not very helpful in answering these and many other key questions. If determinate answers do exist, they lie outside of Article V: in other provisions of the Constitution, in the overall structure of the document, and in the history of its creation and amendment (and perhaps also the history of the creation and amendment of analogous legal documents, such as state constitutions).
Second, it is far from clear whether Article V lays down universally sufficient conditions for legitimate amendment. Could an amendment modify the rules of amendment themselves? (If so, the "equal suffrage" rules could easily be evaded by two successive "ordinary" amendments, the first of which repealed the "equal suffrage" rules of Article V and the second of which reapportioned the Senate.) Similarly, could a legitimate amendment generally purport to make itself (or any other random provision of the Constitution) immune from further amendment? But if not, what about an amendment that effectively entrenched itself from futher revision by, for instance, outlawing criticism of existing law? For answers, we must look beyond the words of Article V to the general structure of the Constitution and its overriding themes of popular sovereignty and republican government, which establish the preconditions for Article V itself. Thus, the rest of the document can help us distinguish between true constitutional amendments (changes within the preexisting deep structure of the document) and constitutional repudiations (which may formally seem to fit Article V, but in fact reject the Constitution's essence of deliberative popular sovereignty.)
Finally, it is also dubious whether Article V specifies universally necessary conditions for legitimate amendment. Two major theories of non-Article V amendment have recently emerged in legal scholarship. The first, championed by Professor Bruce Ackerman, begins by noting that the Philadelphia "Convention," which drafted Article V, was itself acting (in the name of "We, the People") in ways not expressly contemplated by the spare words of Article XIII of the articles of confederation. Like Article V, Article XIII at first seemed to specify absolutely necessary conditions for legitimate amendment, but Ackerman argues that the Philadelphia experience itself—the process by which our Constitution was framed and ratified—belies any such simplistic idea. And the same is true for Article V, especially given the Framers' self-referential use of the word "convention" in this article. Ackerman goes on to argue that the most important subsequent additions to our constitutional text, the Reconstruction Amendments, were not in fact adopted in strict compliance with Article V, and thus can only be legitimated if we properly recognize that "We, the People" may legitimately amend the Constitution by acting beyond the formal rules of Article V, but within the deep structure of popular sovereignty established by the document as a whole.
The second theory, propounded here, resembles Ackerman's, but differs in important respects. Whereas Ackerman focuses on Article XIII of the Articles of Confederation, this second theory begins by looking at state constitutions in effect in 1787. Virtually all the constitutions had amendment clauses similar to Article V, yet in none of these states was the federal Constitution ratified in strict conformity with the clauses. Like Article V, these clauses at first seemed to specify necessary conditions for amendment, but the events of 1787–89 belie such a simplistic reading. Subsequent developments in state constitutional law confirm the nonexclusivity of various amendment clauses; scores of amendments were adopted in the nineteenth century by means of popular ratification nowhere specified in the text of preexisting amendment clauses. These state clauses illuminate Article V. Like its state constitutional counterparts, Article V nowhere explicitly declares itself to be the only legitimate mechanism of constitutional amendment. Rather, Article V is best read as prescribing only the exclusive mechanism by which ordinary governmental entities—Congress and state legislatures—can amend the document that limits their powers. But Article V nowhere qualifies the right of the sovereign people themselves, acting outside of ordinary government in specially convened national conventions, to alter or abolish their governments at their pleasure. This reading of Article V draws support not only from the language of Article VII and the 1787–89 ratification process, but also from the specific words of, and the popular-sovereignty ideology underlying, the preamble ("We, the People"); the first amendment ("right of the People [collectively] to assemble" in conventions); and the ninth amendment and the tenth amendment (reserving to "the People" collective right to alter and abolish government). Only if a current majority of deliberate citizens can, if they desire, amend our Constitution, can the document truly be said to derive from "We, the People of the United States," here and now, rather than from the hands of a small group of white men ruling us from their graves. Any contrary reading of Article V would violate the Preamble's promise that the Framers' "posterity" would continue to enjoy "the blessings of liberty"—most importantly, the liberty of popular self-government.
In the end, a narrow clause-bound approach is no more satisfying in the Article V context than elsewhere. The rest of the document and its subsequent history must always be consulted—sometimes with, at first, surprising results.
Akhil Reed Amar
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