Using the Tools We Have: What we can do about the hushed effort to radically change our Constitution.

AuthorFeingold, Russ

Excerpted from The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It, by Russ Feingold and Peter Prindiville. Copyright [c] 2022. Available from PublicAffairs, an imprint of Hachette Book Group, Inc.

Rethinking Article V: Some Thoughts on Reform

In 1913, the leading American Progressive and Wisconsin U.S. Senator Robert M. "Fighting Bob" La Follette introduced a proposed reform of Article V in Congress. Reflecting widespread discontent with state legislatures, La Follette's reformed amendment mechanism aimed to democratize Constitutional change. His revision provided:

The Congress, whenever a majority of both Houses shall propose amendments to this Constitution, or on the application of the legislatures often states, or on the application often states through the vote of the majority of the electors of each, voting upon the question of such application, shall propose amendments to this Constitution, to be submitted for ratification in each of the several states to the electors qualified to vote for the election of Representatives. And the vote shall be taken at the next ensuing election of Representatives in such manner as the Congress may prescribe. And if in a majority of the states a majority of the electors voting thereon approve any proposed amendment, and if a majority of all the electors voting thereon also approve any proposed amendment, it shall be valid to all intents and purposes as part of this Constitution. La Follette's draft was but one of many proposed amid the amendment fervor of the Progressive Era. Other reforms sought to allow voters to propose amendments by petition, require ratification in popularly elected conventions, and lower the threshold for legislative proposal. But these early proposals, including La Follette's, died in committee. A decade later, the Senate approved a provision providing for ratification by popular referendum but then proceeded to quickly reject it. This about-face, combined with the Supreme Courts 1920 ruling in Hawke v. Smith throwing out Ohio voters' rejection of Prohibition in favor of the state legislature's approval, chilled further attempts at reform.

Over the past century, calls to reform Article V have all but come to a halt. A small cadre of scholars have tended the fire of reform, proposing tweaks here and there. Professor Michael Rappaport at the University of San Diego, for example, has proposed allowing direct state legislative drafting of amendments, allowing legislators to circumvent Congress and the convention mechanism entirely. But none has sought the necessary democratic-minded reforms La Follette and his colleagues proposed in the first decades of the last century. That even discussion of such reform has waned is cause for a moment of serious...

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