consistent answers to questions which might otherwise be resolved by Congress in a partisan fashion from one amendment to another.
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.
Grover Rees III, "The Amendment Process and Limited Constitutional Conventions," Benchmark 2 ( 1986), pp. 67-108.
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.
Rees, "The Amendment Process," p. 70.
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.
For note of such arguments, see
Winston M. Fisk, and Herbert Garfinkel, The Democratic Republic ( Chicago: Rand McNally, 1966), p. 98.
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
Dellinger, "The Legitimacy of Constitutional Change," pp. 388-89.