The Volokh Conspiracy

Over at Prawfsblawg, University of Michigan [correction: NYU] lawprof Rick Hills has an excellent post discussing the shortcomings of Article V of the Constitution, which sets out the constitutional amendment process. As Rick points out, Article V's requirement that a constitutional amendment has to get the support of 2/3 of both houses of Congress, plus 3/4 of state legislatures makes it too difficult to amend the Constitution. Since every state but Nebraska has a bicameral legislature, that essentially means that an amendment needs to be ratified by 76 state legislative bodies (or 75 if Nebraska supports it), as well as broad supermajorities in Congress.

Rick and I both agree that there is much to be said for requiring a supermajority to amend the Constitution. However, Article V makes it almost impossible to enact any really significant amendment. Since the enactment of the Bill of Rights (which was part of the political deal by which the Constitution was ratified in the first place), there have been only a few major amendments. And the most important of these - the three post-Civil War amendments - were ratified only because the federal government essentially coerced the southern states into approving them by mandating that they would not be allowed to regain their House and Senate seats if they refused to ratify. The Constitution is, by and large, an excellent document. But it is not so infallible that major change should be nearly impossible.

As Rick suggests, the difficulty of promoting constitutional change through Article V has channeled demands for change into other, less desirable, avenues. One of the reasons why judicial confirmations are so hotly contested is that political movements have found that it is much easier to "change" the Constitution through creative interpretation by sympathetic judges than to go through the almost insuperable obstacle of the amendment process. Although it's difficult to prove, I suspect that constitutional change surreptitiously achieved through creative judicial interpretation is likely to be of lower average quality than change enacted through a supermajority amendment process that is somewhat easier to get through than Article V. In this 2003 article, I discussed some of the negative aspects of the massive constitutional changes imposed outside the amendment process during the New Deal period.

Readers who, like me, are sympathetic to textualism and originalism should also be aware that Article V is one of the reasons why these methodologies are not more widely accepted by judges than they are. Some judges inevitably fear that if they don't "adjust" the Constitution to take account of changing conditions, great disasters might occur because Article V makes it too difficult to enact the needed changes through the amendment process. On balance, I think that textualism and originalism are usually (though not always) superior to the available alternatives even with Article V. But that argument would be much easier to make if we had a less difficult amendment process.

What should Article V be changed to? It's difficult to formulate a definitive answer, especially in a blog post. But I would tentatively suggest that the requirement of ratification by 3/4 of the states be reduced to 2/3 and that congressional ratification require the support of 60% of each house of Congress rather than 2/3. These revised rules would still require an amendment to have broad bipartisan support at both the state and federal level. But they would eliminate the current logjam under which changing the Constitution through the amendment process is almost impossible.

UPDATE: Various commenters ask what amendments would I like to see enacted that haven't been because of Article V? There are actually a good many. Among those that had a good chance of passing under a less restrictive but still supermajoritarian process, I would note the balanced budget amendment and the Equal Rights Amendment (though I support the latter for reasons different from those emphasized by most of its other supporters). But far more important than the fate of particular amendment proposals is the fact that the near-impossibility of enacting change through Article V means that pressure for change is often channeled into other, less-desirable directions such as judicial manipulation of the Constitution. The average quality of constitutional change is likely to be higher if it goes through a supermajoritarian amendment process less restrictive than Article V than if it gets enacted through the back door.