« Scott Boykin: Original-Intent Originalism
Michael Ramsey
| Main | Josh Blackman & Seth Barrett Tillman: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?
Michael Ramsey »

05/01/2021

David Pozen & Thomas Schmidt: The Puzzles and Possibilities of Article V
Michael Ramsey

David Pozen (Columbia University - Law School) and Thomas P. Schmidt (Columbia University - Law School) have posted The Puzzles and Possibilities of Article V (Columbia Law Review, forthcoming) (62 pages) on SSRN.  Here is the abstract:

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly specific and stringent constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but at least in the text itself we assume we can find some objective common ground.

This paper calls into question each piece of this standard picture of Article V. Neither the language nor the law of Article V supplies a determinate answer to a long list of fundamental puzzles about the amendment process. Legally questionable amendments have not been the exception throughout U.S. history; they have been the norm. After detailing these descriptive claims, the paper explores their doctrinal and theoretical implications. Appreciating the full extent of Article V’s ongoing ambiguity, we suggest, counsels a new approach to judging the validity of contested amendments, undermines some of the premises of originalism and textualism, and helps us to see new possibilities for constitutional change. Because the success or failure of attempted amendments turns out not to be exclusively or even primarily a function of following the rules laid out in the canonical document, all constitutional amending in an important sense takes place “outside” Article V.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!"