The Nominee Is ... Article V

By Griffin, Stephen M. | Constitutional Commentary, Summer 1995 | Go to article overview

The Nominee Is ... Article V


Griffin, Stephen M., Constitutional Commentary


In any list of least favorite constitutional provisions, we should not ignore the provisions protecting slavery, such as Article I [sections] 9 cl. 1 (providing that the slave trade could not be prohibited prior to 1808) and Article IV [sections] 2 cl. 3 (the fugitive slave clause). These provisions may have been superseded, but they have not been expunged from the text and they should not be forgotten.

That said, there are a number of constitutional provisions that have always struck me as questionable. Article I [sections] 4 leaves the procedures for holding federal elections in the hands of the states.(1) This has meant that there has never been a uniform law of voter registration (contributing to election fraud and lower turnout in the twentieth century) or a uniform federal ballot (leading to voter confusion in some states). The method of presidential election specified in Article II [sections] 1 was an unstable compromise, resulting in the need for the Twelfth Amendment only fourteen years after the Constitution was ratified. It would also have been better had the Framers tried to define at least a minimal conception of the "judicial power" in Article III [sections] 1 (or, for that matter, the "executive power" in Article II [sections] 1).

My nominee, however, is Article V, which has historically operated to make the Constitution very difficult to amend.(2) It is true that the question of how to provide for change poses difficult choices for those who create a constitution. If the constitution makes change too easy, there is a risk that the constitution will not structure politics, but will be hostage to it. But making change too difficult may cause political instability or force change to occur through a non-constitutional process. The procedure for change that the Framers provided in Article V appears to reflect a judgment that making change too easy is the greater danger.

The Framers were successful in making formal constitutional change very difficult. Since 1791, the Constitution has been amended only sixteen times (or seventeen, depending on your view of the validity of the Twenty-Seventh Amendment). The provisions of Article V have undoubtedly played a role in causing this low rate of amendment. The second round of approval by a supermajority of state legislatures or conventions seems especially daunting. By requiring the concurrence of both national and state legislatures, Article V comes close to requiring unanimity to approve any amendment as a practical matter.

An important study by Donald Lutz confirms what many commentators have long suspected--that the U.S. Constitution is one of the most difficult constitutions in the world to change.(3) This creates a serious problem for American constitutionalism. Since the Framers chose to err on the side of making amendment difficult, they ran the risk that Article V might make the Constitution irrelevant as circumstances changed. Most commentators would concede that the Constitution has changed a great deal through non-Article V means, primarily judicial interpretation. It must also be stressed, however, that the Constitution has changed through ordinary political means, that is, without formal amendment or a Supreme Court decision. …

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