Contemporary Questions Surrounding the Constitutional Amending Process

By John R. Vile | Go to book overview

consistent answers to questions which might otherwise be resolved by Congress in a partisan fashion from one amendment to another. 40 Moreover, it would be particularly foolish to overturn precedents on which most existing amendments were clearly predicated.

Thus, the accepted understanding that a governor's signature is not required for state petitions for ratifications of amendments should be perpetuated. 41 Similarly, there is no reason at this time in history to begin requiring presidential signatures on amendments, 42 or to overturn the Supreme Court's earlier judgment that the two-thirds majority of both houses of Congress required by Article V is, as Congress has itself previously determined, two-thirds of those present (assuming the presence of a quorum) rather than two-thirds of the entire membership. 43 The effects of all of the last three decisions, if indeed they can be measured, would be to facilitate constitutional changes, and, given the paucity of amendments ratified over the last 200-year period, it can hardly be argued that the result has been to make the process too easy. 44 This practical consideration thus confirms the argument above for adhering to precedent.


NOTES
1.
Grover Rees III, "The Amendment Process and Limited Constitutional Conventions," Benchmark 2 ( 1986), pp. 67-108.
2.
Ibid., pp. 70-72.
3.
There is further, albeit indirect, support for this model in Charles L. Black Jr. , "The Proposed Amendment of Article V: A Threatened Disaster," Yale Law Journal 72 ( 1963), pp. 959 and 961.
4.
256 U.S. 368 ( 1921).
5.
307 U.S. 433 ( 1939).
6.
Rees, "The Amendment Process," p. 70.
7.
Akil Reed Amar arguably undermines this emphasis in his proposal for ratifying amendments by referendum. See his "Philadelphia Revisited: Amending the Constitution Outside Article V," University of Chicago Law Review 55 (Fall 1988), pp. 1043-1104. This work is discussed at greater length in Chapter 6.
8.
For note of such arguments, see Martin Diamond, Winston M. Fisk, and Herbert Garfinkel, The Democratic Republic ( Chicago: Rand McNally, 1966), p. 98.
9.
Ibid., p. 99.
10.
Ibid.
11.
Walter Dellinger, "The Legitimacy of Constitutional Change: Rethinking the Amending Process," Harvard Law Review 97 ( December 1983), pp. 380-432. This author has previously analyzed Dellinger's views in "Judicial Review of the Amending Process: The Dellinger-Tribe Debate," The Journal of Law & Politics 3 (Winter 1986), pp. 21-50, but his views in this chapter are much more complete than in the earlier article.
12.
Dellinger, "The Legitimacy of Constitutional Change," pp. 388-89.
13.
Ibid., p. 417.
14.
Ibid., p. 417-18.
15.
Ibid., p. 418.

-52-

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