May 16, 2011 – Article V of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School
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 Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Article V, which provides the methods for formal amendment is, arguably, the most important provision in the Constitution outside the creation of the structure of government. That article embodies a compromise over a very contentious issue that was grounded in conflicting doctrines of republicanism and higher law theory swirling during the Revolutionary War period.
On the one hand, 17th and 18th century republican theory called for decisions by majority vote, albeit under a restricted franchise. This was a proposition that manifested itself in the post-Glorious Revolution English constitutional system in which a majority of the Parliament (effectively, the House of Commons) not only enacted “ordinary” legislation but controlled constitutional change, as well. Under the English system, there was no categorical distinction between ordinary laws and those of a foundational, i.e., constitutional, nature. For example, the Charter of Rights did not become politically binding until passed in 1689 as a parliamentary bill. This was a manifestation of a “constitution” that, being unwritten, was considered solely a fundamental political ordering, rather than also a fundamental law. Hence, there was no formal constitutional amendment process outside an appeal to Parliament to pass or repeal laws that were “constitutional” in the operative sense.
This English Whig republicanism had many adherents in the United States among leaders of the Revolution. For them, the problem was not the theory but the practitioners. Not surprising, then, some early state constitutions, too, placed the amending power with the legislatures. Even if a state constitution contained a bill of rights that was immune from legislative tinkering, any violation of that command was to be resolved through political action. Moreover, anything outside that bill of rights was left to legislative change.
Yet, by the 1780s, an entirely different conception became dominant. To be sure, reaction against the entrenched constitutional order arose from the experience of Americans with the militant republicanism of the day embodied in legislative majorities that, in too many states, contributed to political and economic turmoil exacerbated by class warfare rumblings and the trampling of rights in property. Experience may have sufficed to cause disenchantment with the existing constitutional structure, but it was not enough to explain the emergence of the alternative.
Enter the “higher law” conception of constitutions. Americans had lived in colonies governed, directly or indirectly, by royal charters. By their thinking, Americans were in a contractual, and therefore “legal,” relationship with their proprietors and the Crown through these charters and patents, and Parliament simply had no control over them. Local laws were valid, as long as they conformed to the charter.
This emergent “higher law” constitutionalism also had religious and political roots. Focusing on the latter, it was a component of social contract theory. The republican version of the legitimacy of governmental action under the social contract focused on the political mechanism to be used after the commonwealth was formed, namely, legislative majorities. The higher law doctrine focused on the relationship of the majority’s act to the qualitatively superior action of creating the commonwealth. In a strict version of that view, unanimous consent was required to form the social contract. In the American experience, the Mayflower Compact provided one such example. At the same time, looking at disparate social contract theorists, such as Thomas Hobbes and John Locke, one finds much ambiguity and question-begging assumptions about how exactly the social contract’s obligations arise.
The colonial experience with royal charters fairly early suggested that such documents were first, law; second, fundamental; and third, not amendable as ordinary legislation. They were law because written and, being in the nature of contracts, binding on all signatories (and, perhaps, their successors). They were fundamental because they dealt with matters that went to the very organization of the political commonwealth. They were not amendable as ordinary laws because each free person had to consent to the changing of the deal that created the basis of political obligation and made the acts of government different from those of a brigand. If unanimity was impractical, at least a supermajority ought to be required. Thus, the charter for Pennsylvania as early as 1701 called for amendments to be adopted only upon 6/7 vote of the assembly.
A pure form of this approach was found in the Articles of Confederation. As the Articles can be considered the formal basis for the formation of a political commonwealth, the United States of America, and in light of the fact that the document repeatedly refers to that commonwealth as a “perpetual union,” it is a social contract. As such, it could only be amended by the consent of all signatories to the compact, though, of course, a state might provide that a majority within its legislature sufficed to bind the state.
That unanimity requirement was quickly perceived as a parlyzing defect of the Articles. When the Framers of the Constitution considered the matter, they believed that they had to find a way that avoided the potential for constitutional turbulence from radical republican majoritarianism as well as for constitutional sclerosis from rigid social contract-based unanimity. They urged that the supermajority requirements of Article V appropriately split the difference. This is not a matter readily settled. The procedure has only been invoked successfully 18 times (the original ten amendments having been adopted at one time). What is clear, though, is that the relative difficulty of the procedure has allowed the unelected judiciary to take on the role of de facto constitutional amendment to a much greater extent than the Framers likely anticipated and than what is consistent with classic republican ideals.
Judging by early state experimentation, constitutional change was to occur, if anything, more directly through the people than Article V allows. Constitutions were typically the job of special conventions whose work would be ratified by popular vote. Actions by such special bodies and by the people themselves were more immediate realizations of popular sovereignty than actions by legislatures, even by legislative supermajorities. George Washington characterized them as “explicit and authentic acts of the whole people.” It was impractical, however, at the national level, to have all people gather at town halls. Nor was it deemed practical — or wise — to have a national vote on amendments.
In Article V, the mechanism of popular participation is the convention. That mechanism is available for the proposal of amendments emanating from the states and the adoption of the amendments by the states. It is interesting, and perhaps disappointing from the republican perspective, that the first has never been used and the second has been used only to repeal another constitutional amendment, regarding alcohol prohibition. Instead, Congress typically proposes, and state legislatures dispose.
There is, however, an institutional reason why no constitutional convention has been called to draft amendments. Plainly put, Congress and the political elites fear that a convention could ignore any specific charge from Congress and draft a whole new constitution. That is, after all, what happened in Philadelphia in 1787. If a matter came close to receiving the requisite number of petitions from states, it is likely that the Congress would itself adopt an amendment and submit it to the states. That is precisely how Congress got around to proposing the 17th Amendment for the direct election of Senators after enough states submitted petitions to put them one short of the required 2/3. Currently, the proposed balanced budget amendment is just two states short.
More troubling to some is whether the people could go outside Article V to form a convention. That was an issue raised, but not resolved, before the Supreme Court in 1849 in a case involving an insurrection in Rhode Island under the guise of adoption of a “popular constitution.” Traditionalists point to Article V as providing the means the people have chosen to limit themselves, lest constitutional instability be the order of the day. In response, republicans assert that American bedrock principles of popular sovereignty (found, among other places in the Federalist Papers) do not admit of so limiting the people’s power. The people ultimately control their constitution, not vice versa. James Wilson, no wide-eyed radical, speaking in the Pennsylvania ratifying convention, defended the Framers’ alleged departure from their charge by the Confederation Congress by declaring what was a self-evident truth to most Americans at the time, that “the people may change the constitutions whenever and however they please.”
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.