Amendment Process (Outside Article V)

• Author: Akhil Reed Amar
• Pages: 76-78

Page 76

Few constitutional rules are as important as those regarding amendment because these rules define the conditions

Page 77

under which all other constitutional norms may be displaced. It is commonly believed that the words of Article V specify with precision the necessary and sufficient conditions for legitimate constitutional change:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other Mode of RATIFICATION may be proposed by the Congress; Provided that ? no State, without its Consent, shall be deprived of its equal Suffrage in the SENATE.

Yet things are not so simple. First, the procedures seem far less precise than one might expect. Can Congress call for a CONSTITUTIONAL CONVENTION limited by subject matter? Does the President have any PRESENTMENT role? What voting rule must a convention follow? What apportionment ratio must it follow? Who sets the rules as to selection of delegates? The spare words of Article V are not very helpful in answering these and many other key questions. If determinate answers do exist, they lie outside of Article V: in other provisions of the Constitution, in the overall structure of the document, and in the history of its creation and amendment (and perhaps also the history of the creation and amendment of analogous legal documents, such as STATE CONSTITUTIONS).

Second, it is far from clear whether Article V lays down universally sufficient conditions for legitimate amendment. Could an amendment modify the rules of amendment themselves? (If so, the "equal suffrage" rules could easily be evaded by two successive "ordinary" amendments, the first of which repealed the "equal suffrage" rules of Article V and the second of which reapportioned the Senate.) Similarly, could a legitimate amendment generally purport to make itself (or any other random provision of the Constitution) immune from further amendment? But if not, what about an amendment that effectively entrenched itself from futher revision by, for instance, outlawing criticism of existing law? For...