The function of Article V.

• Author: Huq, Aziz Z.
• Position: Abstract through II. The Function of Article V in the Early Republic A. The Constitution as a Long-Term Relational Contract 1. Two Views of Constitutions as Contracts, p. 1165-1196

What good is Article V? The Constitution's amendment rule renders the text inflexible, countermajoritarian, and insensitive to important contemporary constituencies. Comparative empirical studies, moreover, show that textual rigidity is not only rare in other countries' organic documents, but also highly correlated with constitutional failure. To promote our Constitution's survival and to counteract Article V's "dead hand" effect, commentators argue, Americans have turned to informal amendment through the courts or "super" statutes. Article V, the conventional wisdom goes, is a dead letter.

Against this pervasive skepticism, I propose instead that Article V may have played an important but hitherto unrecognized function in the early Republic. I hypothesize that Article V may have mitigated a "hold-up" dilemma that could have precluded the Constitution's ratification and undermined its stability in the early Republic era. By hindering strategic deployment of textual amendment, Article V-induced rigidity fostered a virtuous circle of investment in new institutions, such as political parties and financial infrastructure. Identification of Article V's potential role in the early Republic leads to a more nuanced view of the Constitution's amendatory regime. In effect, it raises the possibility that we have a two-speed. Constitution--with Article V-induced rigidity at the inception, supplemented gradually over time by informal judicial or statutory amendment protocols.

INTRODUCTION I. ARTICLE V IN CONSTITUTIONAL THEORY A. The Mechanics of Article V B. The Puzzle of Article V 1. Textual Rigidity and Constitutional Endurance 2. The Informal Amendment Solution C. The Normative Critique of Article V II. THE FUNCTION OF ARTICLE V IN THE EARLY REPUBLIC A. The Constitution as a Long-Term Relational Contract 1. Two Views of Constitutions as Contracts 2. The Hold-up Problem in Private Contracting B. The Role of Textual Rigidity in Promoting Constitutional Survival 1. The Preconditions for Constitutional No-Modification Rules 2. Textual Rigidity as a Response to the Strategic Threat of Amendment 3. Subconstitutional Investments and the Risk of Exit 4. Subconstitutional Institutions with Lock-In Effects in the Early Republic a. National Political Parties b. The Bank of the United States C. Anchoring a Constitution in Cooperative Institutions III. REVISITING THE PUZZLES OF ARTICLE V A. The Infrequency of Rigid Constitutions B. Revisiting and Revising the Normative Critiques of Article V C. Rethinking "Historical Gloss" CONCLUSION INTRODUCTION

What good is Article V? The amendment rule crafted in 1787 renders the Constitution "one of the most inflexible" ever written. (1) Commentators calumnify Article V for making the constitutional text obdurately unresponsive to changing public sentiment. (2) Other scholars depict the handful of amendments that have passed its gauntlet as excessively nationalist in orientation. (3) Worse, empirical studies of constitutions across the globe find that textual rigidity is highly correlated with early constitutional demise. In that light, the longevity of our federal Constitution "defies expectations." (4) Article V has thus "become the constitutional provision ... to hate." (5) Scholarly cottage industries have emerged to extol its irrelevance and desuetude. Commentators explain how Americans have seized upon alternative avenues for constitutional change, such as the Supreme Court, (6) framework statutes, (7) and populist "constitutional moments." (8) The conventional wisdom is that "our system would look the same today if Article V of the Constitution had never been adopted and the Constitution contained no provision for formal amendment." (9)

This Article questions the consensus view of Article V's irrelevance. Rather than having always been superfluous, I suggest a different possibility: Article V-induced rigidity may have played an important, if unacknowledged, role in promoting the Constitution's survival at a key moment in American history--the early decades of the Republic. In the antebellum period, textual rigidity might have mitigated a problem of strategic "holdup" by key interest groups. Strategic invocation of the amendment power, I suggest, could have precluded the Constitution's ratification, handicapped the development of essential elements of a functioning polity--such as an effectual financial infrastructure and a set of national political parties--and even precipitated secession. At the same time, the Constitution's rigidity may have deferred conflict over highly divisive questions, unresolved in the Constitution's text, until the Union could better withstand the shock of their resolution. Without Article V, therefore, there might today be eulogies rather than encomia for the constitutional text that was adopted in 1787.

By contrast, informal amendments of the sort lauded today provide no solution to the early Republic's "hold-up" problem. In the first decades of the new Republic, after all, neither the Court nor Congress played the expansive role that judges and legislators do today in crafting workarounds and constraints to nonfunctioning constitutional rules (even if they were extraordinarily creative when developing functional subconstitutional institutions to give life to the document's larger aspirations). The use of non-Article V mechanisms of constitutional amendment to explain the Constitution's early survival is therefore anachronistic. Instead, recognition of Article V's potential stabilizing function in the early Republic should lead to a more nuanced view of the Constitution's amendment regime. In effect, we have a "two-speed" Constitution. On the one hand, Article V-induced rigidity during the early Republic enabled the development of national institutions necessary to anchor the new nation. On the other hand, those very institutions, over time, created flexibility-generating judicial or statutory amendment alternatives in ways that facilitated adaption to changing socioeconomic circumstances and shifting democratic preferences. Both formal rigidity and informal flexibility, on this account, have contributed to constitutional survival, albeit at different times and in different ways.

That a constitution survives, of course, is no guarantee that its institutional contents or substantive direction are optimal in social welfare terms or desirable on alternative normative grounds. Indeed, it is important to note at the outset that my analysis is oriented toward accounting for the brute fact of the Constitution's survival. I do not intend to offer a normative or welfarist claim either to the effect that any specific feature of the federal Constitution is desirable, or that its continued survival in its observed form to the contemporary period is desirable. Most obviously, the Constitution as initially drafted fell far short of democratic and egalitarian ideals because it allowed for a limited franchise and accommodated the peculiar institution of slavery. Similarly, my argument is orthogonal to the oft-made contemporary claim that radical constitutional reform is desirable, say, on democratic grounds. (10) I am concerned with explaining the fact of constitutional survival, and not with justifying the specific contents of that persisting legal document.

The central task of this Article is to identify a potential causal mechanism linking textual rigidity to constitutional survival in the early Republic. At the outset, I should underscore that my limited aim is to identify a plausible causal story, and to present an array of evidence to support that story. Proving conclusively a connection between a specific legal technology and large-scale social and governmental effects demands the application of econometric tools to large-w samples, an analysis that lies beyond the remit of my project here. Rather, by developing an empirically supported (if counterintuitive) account of a potential connection between one feature of the original Constitution and historical developments, I hope to unsettle the current consensus on constitutional amendment processes, and to open another front in the debate on the diverse ways in which textual choices embedded in the 1787 Constitution may have influenced American political development. Although what I have to offer here is a possibility theorem rather than a conclusive proof, I develop my account in this Article without using the cumbersome conditional tense. This aura of lexical certainty donned for the sake of expository clarity, however, should not be mistaken for a strong causal claim.

To underwrite my account, I draw on a law-and-economics literature about the design of long-term, relational contracts in private law. Like a constitution, many such contracts between private individuals are necessarily "vague or silent on a number of key features." (11) The theoretical literature in economics identifies strategic breach and opportunistic renegotiation as central impediments to successful contracting. Recently, however, law-and-economics scholars have suggested that a written contract's internal resistance to change (for example, through what is often termed a nomodification clause) can promote efficient, after-the-fact investments by parties and can thereby increase the likelihood of the contract's survival. (12)

Mutatis mutandi, I posit that the same dynamic may have unfolded in the U.S. constitutional context during the early Republic. A constitution's text embodies a deal between powerful national-level interest groups, each of whom can threaten to exit from the deal (most obviously by secession). (13) The drafters, like parties to a private deal, are unable to detail fully in the text how all conceivable disputes should be resolved. (14) Hence, constitutions are inevitably incomplete. (15) Once ratified, a necessarily incomplete constitution will succeed only if interest groups invest in supplemental national...