LRTC: Amending the constitution
/Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
I read this in 0:58.
Article V is one the more controversial parts of the constitution. Defenders call it brilliant and insist that by including a provision for changing the constitution, the founders ensured it would always stay up to date. But if the method of amending is unreasonable, the prescribed process might be just another way of preventing change.
Consider this cartoon from Gary Larson’s The Far Side
The father agrees to buy the bicycle. But then he adds a requirement that the boy can’t possibly meet. Was the father’s offer sincere? Or was his “Yes, if. . .” just another way of saying “No?”
It’s the same with the constitutional provision for amendments. Requiring three quarters of the states, and two-thirds of both houses to approve is almost like saying No to begin with. It allows a reluctant or recalcitrant minority to overrule the majority.
It’s true that 27 times in the nation’s history, amendments have passed. But that’s 27 times in 240 years. And it was in the past. Twenty-seven time out of thousands of proposals, many of which were popular with the clear majority of Americans.
This notion that the Article V amendment process is bad governance is explored at length in Sanford Levinson’s “Our Undemocratic Constitution,” (2006) and in “Tyranny of the Minority” by Ziblatt and Levitsky (2023). Historian Jill Lepore has written extensively that the constitutional amendment process has become not just incrementally difficult, but impossible.
In short, Article V is anti-majoritarian and hard to justify on any principle of good government. It imposes a reluctance to change from the status quo, giving past actors a veto power over the desires of the living.
