Executive Summary
The constitutional amendment procedure of Article V is defective because the national con- vention amendment method does not work.Because no amendment can be enacted withoutCongress’s approval, limitations on the federalgovernment that Congress opposes are virtually impossible to pass. This defect may have pre- vented the enactment of several constitutionalamendments that would have constrainedCongress, such as amendments establishing a balanced budget limitation, a line-item veto,or congressional term limits. The increasing-ly nationalist character of our constitutionalcharter may not be the result of modern valuesor circumstances, but an artifact of a distortedamendment procedure. Article V should be re-formed to allow two-thirds of the state legisla-tures to propose a constitutional amendmentwhich would then be ratified or rejected by thestates, acting through state conventions or stateballot measures. Such a return of power to thestates would militate against our overly central-ized government by helping to restore the fed-eralist character of our Constitution. Moreover,a strategy exists that would allow this reform tobe enacted.
Renewing Federalism by Reforming Article V
Defects in the Constitutional Amendment Process and a Reform Proposal
by Michael B. Rappaport
No. 691January 18, 2012
Michael B. Rappaport is professor of law at the University of San Diego, where he also serves as the director of theCenter for the Study of Constitutional Originalism.
2
The only effective way of amending theU.S. ConstitutionrequiresCongress’sapproval.
Introduction
Every constitution requires change oc-casionally. An amendment method must bestrict enough so that the government can-not easily change existing constitutionalprovisions, but not so strict that it preventsthe changes necessary to reform and updatethe constitution. Article V of the U.S. Con-stitution sets out its amendment process. Although some experts think Article V is toostrict,
1
its supermajority rules have benefits,such as promoting better amendments.
2
The real defect in Article V lies elsewhere.The Framers of the U.S. Constitutiontried to establish an amendment processthat located the power to propose amend-ments both in Congress and outside of Con-gress. In fact, though, the noncongressionalamendment process does not work. Thus,the only effective way of amending the U.S.Constitution requires Congress’s approval,and therefore Congress enjoys a veto overall amendments. No amendment that failsto secure the support of two-thirds of bothhouses of Congress has a realistic chance of being enacted. This effective congressional veto has significant normative implications.It suggests that the Constitution has, overtime, become distorted, as the full range of amendments that are needed to correct orupdate the Constitution have not been en-acted. Instead, only those that reflect con-gressional preferences have been passed.Constitutional amendments that reduceor constrain Congress’s power are unlikely to be enacted, even if they are necessary tocheck congressional excesses or to improvethe operation of the government. Moreover,constitutional amendments that would con-flict with Congress’s ordinary preferences—amendments that would reduce the powerof the national government or increase thepower of the states—would also appear toface an uphill battle. In this policy analysisI explore this constitutional defect, explainwhy it occurs, specify how it damages theConstitution, offer a reform that would cor-rect the defect, and identify a realistic meth-od for enacting that reform.
Article V’sAmendment Methods
Article V of the U.S. Constitution de-scribes, in a single paragraph, the variousmethods for amending the Constitution. Itprovides:The Congress, whenever two thirds of both Houses shall deem it necessary,shall propose Amendments to thisConstitution, or, on the Applicationof the Legislatures of two thirds of theseveral States, shall call a Conventionfor proposing Amendments, which,in either Case, shall be valid to allIntents and Purposes, as Part of thisConstitution, when ratified by theLegislatures of three fourths of theseveral States, or by Conventions inthree fourths thereof, as the one orthe other Mode of Ratification may beproposed by the Congress; Providedthat no Amendment which may bemade prior to the Year One thousandeight hundred and eight shall in any Manner affect the first and fourthClauses in the Ninth Section of thefirst Article; and that no State, with-out its Consent, shall be deprived of its equal Suffrage in the Senate. Article V thus establishes a two-step pro-cess for enacting an amendment: first anamendment is proposed and then it is rati-fied. There are also two ways of completingeach step. An amendment can be proposedeither by two-thirds of each house of Con-gress or by two-thirds of the state legislaturesapplying for Congress to call a conventionthat would propose an amendment. Simi-larly, an amendment can be ratified by three-quarters of the states, either through theirlegislatures or through state conventions. Article V’s purpose in providing alterna-tive methods is evident: to prevent a single
3
No constitutionalamendmentshave ever beenenacted underthe nationalconventionmethod becausetwo-thirds of the states willnever apply for aconvention.
government entity from having a veto overthe passage of an amendment. While Con-gress is given the authority to proposeamendments, the convention method al-lows the nation to bypass Congress andenact amendments that would constrainCongress’s powers. Similarly, while the statelegislatures can ratify amendments, they might choose to reject amendments thatconstrain their powers. Therefore, the Con-stitution allows Congress to select for rati-fication by state conventions, which wouldhave different interests than the state legis-latures.
3
Statements made at the Founding sup-port this interpretation of the amendmentprocess. George Mason argued at the Phila-delphia Convention that “[i]t would be im-proper to require the consent of the Natl.Legislature, because they may abuse theirpower, and refuse their consent on that very account.”
4
Similarly, James Madison wrotein the
Federalist No. 43
that Article V “equally enables the general and the State govern-ments to originate the amendment of errors,as they may be pointed out by the experienceon one side, or on the other.”
5
The convention method thus appearsto have been designed to prevent Congressfrom having a veto over potential amend-ments. Under this method, two-thirds of the state legislatures can bypass Congressby applying for a constitutional conven-tion. The convention has the job of pro-posing a constitutional amendment, whichthen has to be ratified by three-quarters of the states. But this constitutional amend-ment method has never been used. The na-tion has always relied on the Congressionalproposal method.
6
The reason for the lack of use of the na-tional convention method is that it does notwork. It is broken. It is not merely that noconstitutional amendments have ever beenenacted under this method, it is also thatthere are strong reasons to believe that two-thirds of the states will never apply for a convention. I now turn to examining thosereasons in detail.
Defects of theConvention Method
Now that I have briefly outlined the na-tional convention method, we are in a posi-tion to discuss the various problems withthe process. These problems include coor-dination difficulties, the risk that Congresswill impede the process, the possibility of a runaway convention, and, most important-ly, the ineffectiveness of the process. Signifi-cantly, these different problems largely havea single source: uncertainty—uncertainty about what the law requires and uncertainty about the actions of the relevant political ac-tors.
Coordination and Congressional Power
One serious problem relates to coordi-nation among the states when they are ap-plying for a convention. A state seeking a limited convention must decide on whatsubject to apply for one. One state may callfor a limited convention on a certain subjectonly to find another state calling for it on a marginally different subject. It may be diffi-cult for the states to coordinate their appli-cations so that they match. The state legis-latures must also coordinate on whether toapply for a limited or unlimited convention.Coordination is also needed between thestates and Congress. Even if the state legis-latures all apply for a limited convention,Congress might conclude that the limitedconventions are unconstitutional and there-fore treat the applications as invalid. A second problem derives from the po-tentially significant role that Congress playsin the national convention process. Becausethe national convention method does notrequire the approval of Congress to proposeor ratify an amendment, Congress would belikely to oppose the amendments proposedunder this process. One way that Congresscan act against such amendments involvesthe state applications for conventions. If dif-ferent states apply for limited conventionscovering marginally different subjects, thenit is quite possible that Congress will use its
Search History:
Result 00 of 00
00 results for result for
p.
Renewing Federalism by Reforming Article V: Defects in the Constitutional Amendment Process, Cato Policy Analysis No. 691
The constitutional amendment procedure of Article V is defective because the national convention amendment method does not work. Because no amendment can be enacted without Congress's approval, limitations on the federal government that Congress opposes are…
(More)
503
Reads
1
Readcasts
5.5K
Embed Views
Recommended
More From This User
Notes
Load more
