Contemporary Questions Surrounding the Constitutional Amending Process

By John R. Vile | Go to book overview

ARE FURTHER REMEDIES NEEDED?

In concluding, it seems appropriate to consider possible remedies. As a guard against projected worst-case scenarios, one might propose that no amendment could be ratified by the states until first approved by two or three successive Congresses, or until states conducted hearings on the subject of ratification. 134 This, or some similar measure, would expose new amendments to increased publicity and reflection before they could be incorporated into the Constitution. Such worst-case scenarios seem far too unlikely, however, to justify such a change in an already difficult amending process. 135

It is even less likely that the popular conscience could be sufficiently aroused to ratify an amendment to prevent future unamendable amendments. The irony of such a proviso--which, to be effective, would have to be unamendable--would itself be enough to argue against such a change. Moreover, the need for such a change seems dubious, as unamendable amendments do not seem imminent and have never been adopted in more than 200 years of practice.

In the end, then, the arguments surrounding Article V do not so much point to the need for future constitutional reform, as illuminate the nature and wisdom of the existing constitutional document. The Constitution-- and, more specifically, the amending clause--wisely protects liberty by guarding against the transient whims of the majority, while placing its ultimate faith in the consent of the governed. To date, at least, this faith does not appear to have been misplaced.


NOTES
1.
Max Farrand, ed., The Records of the Federal Convention of 1787 ( New Haven, CT: Yale University Press, 1966), vol. 2, p. 557.
2.
Ibid., vol. 2, pp. 557-58.
3.
Ibid., vol. 2, p. 558.
4.
Ibid.
5.
Ibid., p. 559.
6.
Ibid.
7.
Ibid., pp. 629-33.
8.
Ibid., p. 629.
9.
Ibid.
10.
Ibid., p. 630.
11.
Ibid. These included a proposal to omit the three-fourths requirement for state ratification and leave this to the discretion of future conventions; the proposal "that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate"; and the proposal "to strike out art. V together."
12.
Ibid., p. 631.
13.
Ibid.
14.
The first two categories, to any meaningful extent, are indistinct. Clearly,

-146-

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