One of the distinctive features of the original U.S. Constitution was its capacity for lawful change. In George Washington’s words, the Constitution “contain[ed] within itself a provision for its own amendment.”
That provision was and is Article V, which instructs that an amendment shall become “Part of this Constitution” when “propose[d]” by “two thirds of both Houses” of Congress and “ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.”
The Supreme Court gave voice to the standard view of Article V when it wrote in 1956 that “[n]othing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process.”
Constitutional theorists have challenged or complicated this view in a variety of ways. Akhil Amar has suggested that the Constitution may be amended by a national popular referendum.
Some have proposed that norms without a foothold in the canonical document may nevertheless attain “constitutional” status.
And many have emphasized the extent to which new propositions of supreme law, including propositions that depart sharply from prior understandings, may emerge and become entrenched in the absence of formal amendment.
Virtually all constitutional lawyers, however, take as given that conformity with Article V’s “amendatory process” has determined ever since the Founding what is and is not “put into” the written Constitution, and therefore what its text does and does not say.
This paper questions Article V’s capacity to perform that function.
It is by now familiar that the perceived clarity of the constitutional text is “constructed” to a significant degree by norms of legal argument and other social practices.
We endeavor to show that what counts as the constitutional text in the first place is also constructed to a significant degree by such practices.
Part of the reason is that the ultimate rule of recognition in any system is a matter of official and popular acceptance, rather than constitutional design. Even an amending clause that looks itself like the system’s “supreme criterion of law”
owes its efficacy, and indeed its legality, to extratextual forces.
But another, more U.S.-specific part of the reason—and the one on which this paper focuses—is that neither the language of Article V nor subsequent constructions of Article V specify the amendatory process in enough detail to establish in many cases which amendments are valid and which are not. Article V continues to be shrouded in a remarkable amount of legal uncertainty, which further attenuates the link between its contents and the failure or success of any given amendment effort.
Leading scholars have characterized Article V as an unusually clear and constraining constitutional provision.
The 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.”
Yet, as we explain, the text of Article V leaves open numerous fundamental questions, from the time limits (if any) on an amendment’s pendency to the substantive limits (if any) on an amendment’s subject matter to the role (if any) of the President and state governors in the amendatory process to the respective roles (if any) of Congress and the courts in deciding whether an amendment has been validly adopted.
Debates during the drafting and ratification of the Constitution shed hardly any light on these questions.
More than two centuries later, post-ratification practice has done little to resolve them, or to establish much of anything concerning the never-used amendment-through-convention procedure. As a result, the overwhelming majority of amendments added to the Constitution since 1787 have faced credible challenges to their validity—challenges that were beaten back by proponents at the time but that in many respects have never been definitively dispelled—while other amendments have plausibly satisfied Article V’s formal criteria yet nevertheless failed to gain widespread acceptance.
Charles Black once advised Congress that “[f]undamental law should be not merely of arguable, but of clear legitimacy,” and that accordingly the “legitimization of constitutional amendments” is an area “where, perhaps more than anywhere else, square corners should be cut.”
The actual experience of constitutional amendment throughout U.S. history has been far messier. Article V contains so many ambiguities and lacunae that it can be expected to yield, and in fact has yielded, amendments of only “arguable” legal legitimacy at the time of their adoption.
Consider, in this regard, that no fewer than twenty-six of our twenty-seven recognized amendments failed to comply with a requirement of presidential approval that Black himself found “plain” on the face of the Constitution.
Recent controversies over the Twenty-Seventh Amendment and the Equal Rights Amendment (ERA) underscore just how many questions about Article V remain unsettled at this late date.
The Twenty-Seventh Amendment was “ratified” by the requisite number of states nearly 203 years after it was proposed by Congress alongside the amendments that became the Bill of Rights. As the Supreme Court opined in the 1921 case Dillon v. Gloss, there is a serious objection that this violates an implicit condition of Article V that ratification take place within a reasonable time frame.
The Dillon Court specifically stated that it was “quite untenable” to think that what is now the Twenty-Seventh Amendment could be revived “by some future generation.”
And the Justice Department’s Office of Legal Counsel disagreed with members of Congress over whether the Archivist of the United States was required to refer the amendment to Congress prior to its official certification.
Meanwhile, the ERA has not, at this writing, been accepted by the legal community as part of the Constitution because several state ratifications occurred after a deadline imposed by Congress, among other complications, even though the amendment seems to have checked all of the boxes for validity indicated on the face of Article V. In addition to the ERA, five amendments have been proposed by Congress but never ratified by a sufficient number of states.
Or, at least, so goes the conventional wisdom. A recent lawsuit contends that the other amendment proposed by Congress alongside the current Twenty-Seventh and the Bill of Rights, regarding congressional apportionment, did receive the requisite number of ratifications in the eighteenth century.
These unsuccessful amendments dwell in a kind of legal purgatory due to the apparent acceptance of the Twenty-Seventh Amendment after its long dormancy. Even more striking, there is a colorable argument that enough states have “applied” for a constitutional convention to obligate Congress to call one—even though few, if any, members of Congress appear to realize this.
Beyond its intrinsic interest, Article V’s ambiguity carries significant doctrinal and theoretical implications. On the doctrinal side, it points toward a new defense of, and twist on, the Supreme Court’s ruling in Coleman v. Miller that Congress has the power to “promulgate” or “proclaim” constitutional amendments after ratification.
Many commentators have criticized Coleman on textual and historical grounds, but the persistent controversy over the validity of amendments suggests a distinct prudential rationale for allowing one organ of government to resolve the status of a new amendment more quickly and democratically than the Court is capable of. Congress, we suggest, is the branch best suited for this task—and could further bolster its comparative competence through the use of subconstitutional mechanisms such as special commissions and advisory referenda.
On the jurisprudential side, our account informs multiple debates about constitutional change through and beyond Article V. Because the success or failure of an attempted amendment bottoms on social acceptance, which throughout U.S. history has not turned on punctilious adherence to a set of rules, all constitutional amending in an important sense takes place “outside” as well as “inside” Article V. Textual and extratextual considerations are entwined right from the start of the law-recognition process. Article V, in consequence, may have more play in the joints than is typically realized. Given the extreme antidemocratic potential of the double-supermajoritarian Article V formula, there is a strong case for what might be called Article V Thayerianism: an interpretive presumption favoring ease of amendability on those (many) questions that Article V does not clearly resolve. Vicki Jackson has warned that “sociocultural beliefs in the difficulty of amendment . . . may contribute to the difficulty of amendment today,” as claims about the impossibility of amendment “can become self-fulfilling.”
Our descriptive analysis of Article V bears out this warning, while our proposed adaptation of Thayerianism furnishes a practical tool for breaking out of the vicious cycle that Jackson identifies. At the same time, our showing of the constructedness of the constitutional text holds lessons for constitutional interpretation more generally, as it undermines some of the positivist premises of originalism and textualism.
The paper proceeds in five parts. Part I sets the general jurisprudential stage by explaining the inherent limits of Article V, or any constitution’s amending clause, to determine which efforts at constitutional change will be seen as legally valid. Part II catalogs the many questions about the amendment process that the text of Article V fails to answer, and it explains that these uncertainties are striking both from a comparative perspective and because of Article V’s unique function as the gateway to the constitutional text. Part III provides a historical review of amendment efforts, which reveals that legally plausible contestation over amendment validity is the norm in U.S. practice, not the exception, and that many important questions about the amendment process remain unsettled. Parts II and III are the empirical centerpiece of the paper. Taken together, they confound any notion that Article V is a clear
guide to amendment, even though there is arguably no more fundamental issue in U.S. law than what is or is not inscribed in the constitutional text. Moving from deconstruction to reconstruction, Part IV considers doctrinal implications of this account and argues, in particular, that it provides a stronger basis for Coleman than the reasons given by the Court. Finally, Part V explores broader implications for constitutional theory and interpretation.