Contemporary Questions Surrounding the Constitutional Amending Process

By John R. Vile | Go to book overview
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in Article V, why should legislating be exclusively specified in Articles I and II?

This author does not believe that Amar offers a satisfactory answer. Despite his savage, if purposely overdrawn, attack on the representativeness of republican institutions, 136 Amar ultimately gives this system a vote of confidence. 137 Citing a persuasive contemporary article, 138 Amar further points to the "great dangers" of direct initiative while arguing that, when it comes to amendments, "the dangers are smaller, the philosophic justifications stronger, the alternatives less palatable, and the possible rewards greater." 139 Amar offers to provide proof later in his paper.

This "proof" is, however, completely unresponsive to the constitutional issue, that is, why one process should textually be read as nonexclusive and not the other. Amar's argument is quite simply that, "ordinary lawmaking by the People enjoys neither the elaborate procedural protections of the ordinary legislative process nor the self-restraining solemnity of constitutional amendment." 140 This is surely a distinction that does not make a difference. Certainly, one strong argument against popular amendment is that it too will bypass existing procedural protections which protect minority rights against hasty or ill-advised majority actions. Moreover, the process of amending the Constitution may be solemn largely because this process is now so extraordinary and infrequent in nature. Amar's scheme may or may not keep it so, but to rely on the experience of one amending system to argue for another is simply again to try to have one's cake and eat it, too.

In the end, then, the arguments for the nonexclusivity of Article V mechanisms would seem to hinge on arguments for the nonexclusivity of the legislative process or any other specified in the Constitution. Perhaps Amar shies away from this tie for fear that it will undercut his constitutional argument. It certainly appears, to this author at least, that the arguments for both kinds of popular initiative should fall together in preference to more tried and limited forms.

Akil Reed Amar, "Philadelphia Revisited: Amending the Constitution Outside Article V," University of Chicago Law Review 55 (Fall 1988), p. 1055.
Ibid., p. 1057n and p. 1061.
Ibid., p. 1065. Underlining mine.
Amar does not cite the argument by William MacDonald that Congress can call a constitutional convention on its own authority because Article V should be viewed as "permissive and selective, not as exclusive." See William MacDonald, A New Constitution for a New America ( New York: B. W. Heubsch, 1922). This work is discussed in John R. Vile, Rewriting the United States Constitution: An Examination of Proposals from Reconstruction to the Present ( New York: Praeger, 1991), pp. 57-59.
Herman Ames, The Proposed Amendments to the Constitution of the UnitedStates during the First Century of its History


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