Contemporary Questions Surrounding the Constitutional Amending Process

By John R. Vile | Go to book overview

Chapter 6
The Question of Exclusivity--The Arguments of Akil Reed Amar

The previous chapter has examined a number of theories about the legitimacy of constitutional changes effected outside the constitutional amending process. This focus on whether Article V is the exclusive means of amending the Constitution continues in this chapter with attention to the provocative thesis by Akil Reed Amar that the Constitution provides for popular sovereignty and that such sovereignty can be used as a means of proposing and ratifying amendments to the Constitution outside normal Article V processes.

Amar has argued that, while empowering and limiting the government, the Constitution "neither limits nor empowers the People themselves." 1 Specifically, Amar argues that amendments proposed by an Article V convention might, if a convention so specified, be ratified by a majority of the people. 2 Alternatively, he argues that two-thirds majorities in Congress could submit amendments to a direct popular vote and that Congress is "constitutionally obliged to convene a proposing convention," if petitioned to do so by "a bare majority of American voters." 3 Amar's thesis deserves particular attention because, like Ackerman's in the previous chapter, it is linked to basic questions involving the very philosophical basis of the American regime.

This writer will argue that Amar's view, provocative though it is, is fundamentally flawed. Specifically, Amar's theory conflates the traditional understanding between revolutionary actions and constitutional actions and cannot be justified by reference to the Founding Fathers or by the best interpretation of the Constitution. Moreover, by attempting to open another door to constitutional amendment, Amar's interpretation would unwisely

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