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12/12/2017

James Lucas on Amending Article V
Michael Ramsey

At NRO, James Lucas: The Supreme Court versus the Constitution.  The most interesting point is the final one: 

An invigorated Article V should be central to the program of those who respect the Constitution. Professor Randy Barnett summarized originalism as the view that “the meaning of the Constitution must remain the same until it’s properly changed.” (My own preferred summary is that “the Constitution says what it means and means what it says,” but we’ll go with the professor for now.) Originalism arose as a response to the unrestrained judicial amendment of the Warren and Burger courts, so it is not surprising that it has emphasized the first part of the summary — the meaning of the Constitution must remain the same.

However, those who respect the Constitution need to recognize that its vitality depends on its ability to respond to changing circumstances. If we are to decisively rebut the arguments for judicial amendment, we need to attend to the second part of Professor Barnett’s summary — proper change. Article V is no longer fulfilling its function of providing a democratic, deliberative process of constitutional change. This has permitted the Supreme Court to usurp the rights of the people and their elected legislatures and has left us with a Constitution riddled with imprecise, complicated judicial amendments. A reformed, reinvigorated Article V will be the definitive and democratic response to the Supreme Court’s usurpation of that article’s vital functions and confirm the right of the American people to determine the meaning of their Constitution.

As to specific reforms: 

The most important reform would be to allow the states to initiate amendment proposals without having to go through a convention. Article V provides that amendments may be proposed by a convention called by Congress “upon the Application of the Legislatures of two-thirds of the several States.” Such a convention has never occurred, nor is one likely (despite the valiant ongoing efforts of some conservative activists). The fundamental impediment was pointed out by James Madison at the constitutional convention of 1787, when the convention mechanism was added on the second-to-last day in the rush to conclude. Madison noted that Article V does not provide any procedures for such a convention. Consequently, a host of critical issues are left unresolved, such as whether an Article V convention could be limited as to subject, how votes would be counted, how many votes would be required, what would constitute a quorum, who would pay for it, how long it would sit, and so forth.

Yet at the 1787 convention, all agreed that the states should have the same power as Congress to initiate amendments. As Madison wrote in Federalist No. 43, Article V was intended to “equally enable the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on the one side, or the other.” Eliminating the convention requirement and allowing a small group of states (I have proposed five) to initiate an amendment would empower the states and enable the people to consider many widely supported amendment proposals that are now hopelessly stuck in a dysfunctional Congress. Under this plan, if five states passed an amendment within a period of four months, the other states would have nine years to provide the necessary 29 additional approvals to reach two thirds and make the amendment part of the Constitution.

Another reform would be to slightly lower the approval thresholds, which, as noted above, are the highest in the world. There is no indication that the Framers wanted to make approval as difficult as it is. Since only 12 states attended the 1787 convention, the difference between two-thirds and three-fourths was very small (just one state, in fact). No one considered what the impact of a three-fourths threshold would be when there were 50 states. Most proposals to reform Article V reduce that requirement to two-thirds. Because of the great disparity in state populations, I have also proposed adding a requirement that the ratifying states must have a majority of the nation’s population.

Note: James Lucas is the author of Timely Renewed: Amendments to Restore the American Constitution (2010) and Are We The People? How We the People Can Take Charge of Our Constitution (2012).