By Anthony W. Hawks
The premise of this blog is that the Constitution has been amended far more often than the 27 times officially recognized under Article V. These unofficial amendments are typically ratified by the Supreme Court, sometimes in a single case, but also in incremental steps over time. The process usually begins, however, with an unprecedented assertion of power by Congress or the President or one of the 50 states, which is then affirmatively upheld by the Supreme Court (or implicitly but no less effectively authorized when the Supreme Court refuses to intervene).
What is most striking about this unofficial amendment process (aside from its highly questionable legitimacy) is the absence of any role for state legislatures. This is utterly ironic because of all the institutions created or recognized in the Constitution, it is the state legislatures (as opposed to the states) who have the pre-eminent responsibility for amending the document under Article V. Congress can propose amendments, but only the state legislatures have an official role at both the proposing and ratification stages.
Explaining how and why these “unofficial amendments” have occurred is a long story that this blog will return to time and again. The point I wish to make at the start of this blog is that Article V is now prisoner to a paradox. The paradox is that because it is so difficult to amend the Constitution, it has become much too easy to amend the Constitution. This “paradox” is easily explained, however, once it is made clear who is doing the amending: because it has become so difficult to amend the Constitution under Article V, it has become much too easy to amend the Constitution by judicial decision.
Of course it has always been difficult to gain passage of a constitutional amendment through the “normal” channels of Congress. What the Framers failed to foresee is that the amendment process would become the exclusive domain of Congress (officially) and the Supreme Court (unofficially). Having written Article V in a general but not unlimited or “runaway” constitutional convention, it does not appear to have occurred to the Framers that their posterity would fear far more limited conventions on specific types of amendments to the point that they would never be convened.
There will always be problems of a constitutional nature that Congress will refuse to address because the solutions will require Congress or the President to relinquish power. Indeed it was precisely this concern that caused George Mason at the 1787 Philadelphia Convention to insist that Congress not have the exclusive power to propose amendments; otherwise “no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.”
What has now become apparent is that the Convention Clause of Article V must be resurrected for another reason, namely, to provide both a disincentive to future judicial amendments and a check on the judicial amendments that have already occurred and will doubtless occur in the future. The argument that it should be difficult to amend the Constitution has a natural and widespread appeal, but creating too high a bar to formal amendments has created a facile acceptance of informal judicial amendments.
If the process of amendment by constitutional convention were no longer calcified, the Supreme Court would have less justification for stretching the Constitution beyond its original meaning in order to address contemporary problems. Similarly, when the Supreme Court does rewrite the Constitution by judicial amendment, particularly when the result is greater federal power at the expense of the states, a vibrant Article V convention process will provide the state-based check on federal power that we know was always intended by the Framers.
At the same time, we should not lose sight of the fact that the rest of Article V is hardly devoid of criticism. Although the process of proposing constitutional amendments through the Congress is not entirely moribund, the inability of Congress to address such important but non-partisan matters as the need to preserve the continuity of the national government following a catastrophic event would suggest that reform is needed here as well. Invoking the convention clause then would likely rejuvenate the Congressional method of proposing amendments.
It is to the resurrection of Article V then that this blog is dedicated.
Copyright © 2011 Anthony W. Hawks. All rights reserved.