The Question of Standards--What
Rules Are Most Appropriately
Applied to Procedural Issues
Surrounding the Amending
In the chapter which preceded, the question centered on which institution of government should oversee amending controversies; in this chapter, the focus is on the desirable standards themselves. There are a number of ways to proceed. One temptation is simply to identify and address important issues--should states be permitted to rescind ratifications of pending amendments, does Congress have power to extend the time limits for amendments and the like--individually. While this writer thinks it is important to provide plausible answers to these questions and does so later in this chapter, he thinks it is more profitable to begin the process by putting individual issues within a larger context by ascertaining if there is some overarching principle, or set of standards, under which specific issues can be addressed.
One of the participants in amendment debates, Grover Rees III, has delineated three models of the amending process which can serve as a useful starting point. 1 These models are the classical model emphasizing contemporaneous consensus; the political questions and plenary congressional power model; and what Rees calls the formalist model. 2
The second model should be familiar to readers of the previous chapter; this model makes Congress the sole judge of amending issues or gives almost complete deference to all such decisions. The argument in the previous chapter should have demonstrated that this view has the potential for undermining the legitimacy of the Constitution by leaving questions con