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03/19/2014

Aziz Z. Huq: The Function of Article V
Michael Ramsey

Aziz Z. Huq (University of Chicago Law School) has posted The Function of Article V (University of Pennsylvania Law Review, Vol. 162, 2014) on SSRN.  Here is the abstract:

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 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 that Article V instead played an important but hitherto unrecognized function in the early Republic. Article V mitigated a ‘hold up’ dilemma that could have precluded ratification and undermined the new Constitution’s stability. 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. Recognition of Article V’s role in the early Republic leads to a more nuanced view of the Constitution’s amendatory regime. In effect, 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.