Editor's Notes: How to Amend the Constitution Like the Reconstruction Congress

The Reconstruction Amendments were ratified at the barrel of a gun.

Naturally, the northern states ratified them the usual way. But ratification was one of the conditions that rebel states had to meet in order to be allowed back into the union, in a period after they had lost a war and were under military occupation.

The Thirteenth, Fourteenth, and Fifteenth amendments were ratified under these conditions. We ended slavery, we established birthright citizenship, and we declared that no one will be denied "the equal protection of the laws" nor will the right to vote be abridged based on "race, color, or previous condition of servitude."

These amendments were ratified at the barrel of a gun, and they are completely legally legitimate, and indeed represent tremendous accomplishment, and important transformation of our founding document.

We can make significant amendments to the Constitution. Even easier still, we can make significant transformations of our system whether or not we amend the Constitution. Civil War and Reconstruction showed one very extreme path we should not seek to follow in its specifics. But as Robert Black wrote in The Reconstruction Papers, we can be creative in how we climb the very steep hill that Article V sets out for us.

Yesterday I discussed how a few panelists and ISMA's conference last week were horrified at the idea of expanding the Supreme Court. But in my mind that one-time expansion will be but a starting point, the opening of a path to the real actions required to get us through this crisis. And that path could very well include constitutional amendments.