Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific 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.

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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.” 1 George Washington, Farewell Address (Sept. 17, 1796), in 1 A Compilation of the Messages and Papers of the Presidents, 1789–1907, at 213, 217 (James D. Richardson ed., 1908); see also Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America 138 (4th ed. 1968) (“[T]he clear recognition and deliber­ate organization of the amending power was an achievement of the American revolution.”); Sanford Levinson, Introduction: Imperfection and Amendability, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 3, 4 (Sanford Levinson ed., 1995) [hereinafter Responding to Imperfection] (“It was a fundamental breakthrough in American constitutional theory . . . that the ‘rules of government’ would be decidedly ‘alterable’ through a stipulated legal process.” (quoting Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 139–44 (1980))). 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.” 2 U.S. Const. art. V. Article V also permits “the Legislatures of two thirds of the sev­eral States” to apply to Congress to “call a Convention for proposing Amendments,” which then go to the states for ratification. Id. No such convention has yet been called. See infra section III.M. 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.” 3 Ullmann v. United States, 350 U.S. 422, 428 (1956); see also, e.g., Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457, 458 (1994) [hereinafter Amar, Consent of the Governed] (“The conventional reading of Article V sees it as the exclusive mechanism of lawful constitutional amend­ment . . . .”); Frederick Schauer, Amending the Presuppositions of a Constitution, in Responding to Imperfection, supra note 1, at 145, 147 [hereinafter Schauer, Amending the Presuppositions] (“Article V appears on its face to exhaust the possibilities for amending the Constitution consistent with the Constitution itself . . . .”).

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. 4 See Amar, Consent of the Governed, supra note 3, at 462–94; Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1044–76 (1988) [hereinafter Amar, Philadelphia Revisited]. Some have proposed that norms without a foothold in the canonical document may nevertheless attain “constitutional” status. 5 See, e.g., Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1129 (2013) [hereinafter Primus, Unbundling Constitutionality] (explaining that “small-c” constitutional theorists insist that “the text of the written Constitution” is not a necessary “basis for a rule’s constitutionality”); Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408, 410 (2007) (“[T]he American ‘constitution’ consists of a much wider range of legal materials than the document ratified in 1789 and its subsequent amendments.”). 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. 6 See, e.g., Richard S. Kay, Formal and Informal Amendment of the United States Constitution, 66 Am. J. Compar. L. 243, 260 (2018) [hereinafter Kay, Formal and Informal Amendment] (“It is fair to say that most of what now goes under the caption ‘constitutional law’ in the United States is attributable to extraconstitutional, ‘off-the-books’ develop­ments.”); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Calif. L. Rev. 1323, 1327 (2006) (arguing that social “movements regularly succeed in changing the Constitution without amending it”). 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. 7 Even the most radical Article V revisionists do not necessarily dispute this. Alt­hough Amar contends that the Constitution may lawfully be amended by a popular referen­dum or comparable mechanism, he never suggests that such an amendment has in fact occurred. See, e.g., Amar, Consent of the Governed, supra note 3, at 457–61. Likewise, alt­hough Bruce Ackerman advances an elaborate theory of constitutional change outside Article V, he never suggests that new words have been put into the Constitution’s text by a procedure that does not purport to follow Article V. See, e.g., 2 Bruce Ackerman, We the People: Transformations 15–31 (1998) [hereinafter Ackerman, We the People].

This paper questions Article V’s capacity to perform that function. 8 Although this piece is technically an “Article,” it will be referred to as a “paper” throughout to avoid confusion with references to Article V. 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. 9 See, e.g., Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, 64 Duke L.J. 1213, 1216 (2015) (“The perceived clarity of the text . . . is often partially constructed by [interpretive] practice.”); Peter Jeremy Smith, Commas, Constitutional Grammar, and the Straight-Face Test: What if Conan the Grammarian Were a Strict Textualist?, 16 Const. Comment. 7, 17 (1999) (discussing “all-too-common” situations in which “we are confronted by [constitutional] text that, according to established rules of grammar, does not actually say what we all know it to mean”). 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. 10 Amar has made a conceptually similar, but empirically narrower, point about the original Constitution. While most assume that the parchment Constitution in the National Archives is the authoritative document, a printed version with minor differences was trans­mitted to and ratified by the states. See Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 63–68 (2012) [hereinafter Amar, America’s Unwritten Constitution]. That latter version is probably the legally operative one. Id. But there would be no way to ascertain which version is legally operative simply by studying the documents themselves. Id.; cf. Laurence H. Tribe, The Invisible Constitution 6 (2008) [hereinafter Tribe, The Invisible Constitution] (“[N]othing in the visible text can tell us that what we are reading really is the Constitution . . . .”). 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” 11 Kent Greenawalt, The Rule of Recognition and the Constitution, 85 Mich. L. Rev. 621, 632 (1987) [hereinafter Greenawalt, Rule of Recognition]. owes its efficacy, and indeed its legality, to extratextual forces. 12 See infra Part I. 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. 13 A “successful” effort to enlist Article V, for purposes of this paper, is one that results in a new amendment widely understood to have become part of the written Constitution. In other words, we equate success with sociological legitimacy. And we contend that amend­ment success is not exclusively or even primarily a function of following the rules laid out in Article V.

Leading scholars have characterized Article V as an unusually clear and constraining constitutional provision. 14 See, e.g., Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 270 (2006) [hereinafter Vermeule, Judging Under Uncertainty] (listing the “rules governing . . . constitutional amendment” as an example of “clear and specific constitutional text[]”); Richard Albert, Constitutional Disuse or Desuetude: The Case of Article V, 94 B.U. L. Rev. 1029, 1035 (2014) [hereinafter Albert, Constitutional Disuse or Desuetude] (“The simplicity and clarity of Article V’s enabling clause allow us to identify when the Constitution has been formally amended . . . .”); David R. Dow, The Plain Meaning of Article V, in Responding to Imperfection, supra note 1, at 117, 117 (“The mean­ing of Article V . . . is an example of yet another text the meaning of which is essentially clear.”); John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L. Rev. 375, 457–61 (2001) (depicting Article V as privileging “clarity” and “certainty” over other values). 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.” 15 United States v. Sprague, 282 U.S. 716, 730 (1931). 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. 16 See infra section II.A. This is by no means the first work to observe that Article V is vague or underspecified in certain respects. See, e.g., Richard B. Bernstein with Jerome Agel, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? 248 (1993) (“The procedures outlined in Article V pose a host of unresolved difficulties.”); Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386, 432 (1983) [hereinafter Dellinger, Legitimacy of Constitutional Change] (acknowledging that “[t]he spare language of article V leaves open critical questions,” yet contrasting Article V with “open-textured provisions of the Constitution”). And “some scholars have cited difficulties arising out of the ratification of a handful of constitutional amendments.” Saikrishna Bangalore Prakash, Of Synchronicity and Supreme Law, 132 Harv. L. Rev. 1220, 1270 n.267 (2019) [hereinafter Prakash, Of Synchronicity]. So far as we are aware, however, this is the first work to document all of the major unresolved legal questions raised by Article V and to explore their collective signifi­cance for constitutional law, politics, and theory. Debates during the drafting  and  ratification  of  the  Constitution  shed  hardly  any  light  on  these questions. 17 See Thornton Anderson, Creating the Constitution: The Convention of 1787 and the First Congress 161 (1993) (explaining that “the consideration of amending procedures was one of the least adequate of the Convention debates”); Carlos A. González, Representational Structures Through Which We the People Ratify Constitutions: The Troubling Original Understanding of the Constitution’s Ratification Clauses, 38 U.C. Davis L. Rev. 1373, 1444 (2005) (“To the extent that Article V was discussed during the Philadelphia drafting convention and in the subsequent ratification process, only Article V’s federalism and entrenchment [implications]—whether Article V made amendment too difficult—were mentioned.”). 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. 18 See infra Part III.

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.” 19 Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189, 190, 209 (1972). 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. 20 Cf. Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–801 (2005) [hereinafter Fallon, Legitimacy and the Constitution] (defining legal legitimacy and contrasting it with sociological and moral legitimacy). As this paper uses the term, an amendment enjoys “legal legitimacy” at the time of its adoption if the amend­ment’s proposal and ratification complied with Article V. A constitutional amendment, or for that matter an entire constitution, may come to be accepted as authoritative notwith­standing defects under then-existing law in the process by which it was created. See id. at 1803–06. 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. 21 Article I, Section 7, Clause 3 of the Constitution states that “[e]very Order, Resolution, or Vote” of Congress “shall be presented to the President” and must be approved by the President before it “take[s] Effect.” According to Black, this instruction would seem to mean, “if plain words can have plain meaning,” that once passed by Congress a proposed amendment must be approved by the President. Charles L. Black, Jr., On Article I, Section 7, Clause 3—And the Amendment of the Constitution, 87 Yale L.J. 896, 899 (1978) [hereinafter Black, On Article I]. Only one amendment has ever received a presidential signature prior to state ratification: President Abraham Lincoln’s on the Thirteenth. See Harrison, supra note 14, at 389 n.79; infra note 130. The so-called Corwin Amendment, proposed by Congress in 1861 but never ratified, was “inadvertently presented” to and then signed by President James Buchanan. Cong. Globe, 38th Cong., 2d Sess. 630 (1865) (state­ment of Sen. Trumbull); see also Bernstein with Agel, supra note 16, at 91. The presentment issue is discussed in detail infra section III.B.

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. 22 For more extensive discussion of both amendments, see infra sections III.K, III.L.3. 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. 23 256 U.S. 368, 375 (1921) (“We conclude that the fair inference or implication from Article V is that the ratification must be within some reasonable time after the proposal.”). 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.” 24 Id. 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. 25 See Cong. Pay Amendment, 16 Op. O.L.C. 85, 99–105 (1992); Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 540–41 (1992).

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. 26 See H.R. Doc. No. 110-50, at 29–31 (2007) (listing unratified amendments). 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. 27 See LaVergne v. U.S. House of Representatives, 392 F. Supp. 3d 108, 114 (D.D.C. 2019) (three-judge court). The dispute hinges on whether Connecticut validly ratified the amendment when each house of its legislature approved the amendment seven months apart, during different legislative sessions. See infra notes 280–288 and accompanying text. 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. 28 See infra section III.M.

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. 29 307 U.S. 433, 450 (1939); see infra section IV.B. 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.” 30 Vicki C. Jackson, The (Myth of Un)Amendability of the US Constitution and the Democratic Component of Constitutionalism, 13 Int’l J. Const. L. 575, 576–77 (2015) [hereinafter Jackson, The (Myth of Un)Amendability] (emphasis omitted). 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. 31 On all points previewed in this paragraph, see infra Part V.

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 32 See supra notes 14–15 and accompanying text. or “straightforward” 33 See, e.g., Paul M. Schwartz, Constitutional Change and Constitutional Legitimation: The Example of German Unification, 31 Hous. L. Rev. 1027, 1088 (1994) (“Article V sets out a relatively straightforward process for changing the Constitution.”). 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.