Fixing Article V

This article was previously published as part of The Reconstruction Papers. The entire book is available in print and as a PDF.

Much of the work that is to be done, much of the reform proposed within these pages, can be done using subconstitutional means. Much of what is wrong with our political system can be fixed by legislation, by executive action, by overturning judicial precedents, even by changing the internal rules of Congress.

Much, but not all.

There are some reforms—needed, even indispensable reforms—that simply cannot be carried out except by constitutional amendment. Some of our problems—the composition of the Senate, say—just are in the Constitution itself, and cannot be fixed without fixing what the Constitution says.

Which is a problem, because the method for how to fix the Constitution is perhaps the single worst provision of the entire document. Article V outlines the process for proposing and adopting constitutional amendments. And it is simply not fit for purpose.

In order to fix the rest of the Constitution, therefore, we are going to have to start by fixing the amendment process itself.

There are, I think, three big questions about the task of reforming the amendment process. First: what’s so bad about Article V, anyway?

There are two steps to the Article V process. First, Congress proposes amendments by a two-thirds vote of both Houses. (Alternately, amendments can be proposed through a convention, to be called by Congress on the application of two-thirds of the states; this has never happened.) Once an amendment has been proposed, it is placed before the states for ratification. Once three-fourths of all the states in the Union have ratified the proposed amendment, it is adopted and becomes a part of the Constitution. The two major hurdles, then, are (1) two-thirds of each House of Congress; and (2) three-quarters of the states.

This is, notoriously, one of the most difficult amendment processes in the world. In many countries, the two-thirds vote of the national legislature would itself be sufficient to adopt an amendment. Not one of the fifty states has anything like as onerous a process to change their state constitutions. Unsurprisingly, then, no amendment has been proposed and ratified for over fifty years. The last newly proposed amendment was the Twenty-Sixth, adopted in 1971 to lower the voting age from 21 to 18 nationwide. (The Twenty-Seventh Amendment, ratified in 1992, was proposed in 1789 as part of what would become the Bill of Rights, but was not adopted for over two hundred years.) The degree of national consensus required by the Article V process is truly extraordinary.

I think that critics of Article V make a mistake, however, by framing their critique solely in these terms. The problem is not really that it is “too hard” to use the Article V process. The real problem is the inequality of the process. Article V is every bit as malapportioned as the Senate, for just like the Senate, it gives each state an equal share of political power. The practical effect of this is to subject citizens of California, the most populous state, to something like a 98% disenfranchisement compared to citizens of the smallest states. In some ways the situation is even worse with Article V than with the Senate because of the three-fourths requirement. If the fight over a proposed amendment were to line up along large state/small state lines, it is conceivable that thirteen states with a combined population of only 15 million could block an amendment favored by states with a population of over 300 million.

In some ways, though, the converse scenario is even scarier. Suppose an amendment were exclusively favored by all the smallest states. The thirty-eight smallest states have a combined population of about 133 million. The twelve largest states, though, have a population of nearly 200 million. That’s right: in theory an entire constitutional amendment amendment could be ratified with only the support of a minority of the American People. Now, it is not very likely that things would line up so precisely along these lines. And Congress would have some ability to gatekeep amendments with only minority support. But if the twin trends of urbanization and polarization of politics along urban/rural lines continue, it is not that hard to imagine a future where the rural minority could indeed seize for itself the power to rewrite the Constitution.

This is why I say the problem with Article V is not really that it is too difficult to use. It is too difficult for some, and much too easy for others. It is, in other words, unequal. It is undemocratic. A comparably demanding system that treated every American the same, that gave each and every citizen an equal say in the matter, would be far less objectionable. Also, the two critiques run together. It is not just that the threshold to pass an amendment is very high: it is that the system specifically gives the rural, conservative minority an absolute veto over the process. Liberals are, asymmetrically, made to beg permission from conservatives if we ever want to enact constitutional reforms. This is objectionable in principle, and also intolerable in practice.

The next question, then, is how to go about changing it. There are a handful of pathways, each with their virtues and their downsides.

One option would be to go through the Article V process, to use Article V to destroy Article V, as it were. The advantage to this approach would be its unquestionable legitimacy. This is important for any constitutional reform, but especially for reform of the amendment process itself, because that new process will then be used to generate further amendments. If people do not accept the new amendment process as legitimate, then they will not accept its fruits, and we could see a splintering of consensus about what counts as part of the Constitution. That would be a disaster. And if the new amendment process were to be adopted through the old process, then it would be basically impossible to question its validity.

The flip side, however, is that this is quite unlikely to happen. If the new amendment process reduces the disproportionate power of the small states under the current system, why would those small states support it? But nothing can be adopted under the current system without the support of many of the smallest states. This is an instance of a broader dynamic that often impedes political reforms: it is hard to convince whatever institution currently holds power to give up that power.

Now, this is not to say that it couldn’t be done. But, viewed from another perspective, we might think it unreasonable even to ask this reform to go through Article V in the first place. After all, the whole point is that the Article V process itself is undemocratic. If it is morally wrong and politically illegitimate for a small minority to enjoy an asymmetric veto over the amendment process, why should changing that be subject to the same veto?

This brings us to the second option: amendment outside Article V. This may sound outlandish: there is, of course, no provision for such a thing anywhere in American law. But both the theory and the history of the American state can be seen as supporting the idea. The argument is rooted in the Declaration of Independence: “it is the Right of the People to alter or to abolish” their form of government when it no longer serves their interests. In Founding-era thought, this was seen as a natural and inalienable right of the People. As the Virginia Declaration of Rights, adopted a few weeks before the national Declaration, put it,

“When any government shall be found inadequate or contrary to [its] purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”

The idea, then, is that written law—i.e. the Constitution—simply cannot constrict or limit this natural right of the People. Article V provides for one way in which the right can be exercised, but it does not, it could not prescribe the only way. Law professor Akhil Amar has argued that the Constitution itself should be understood as recognizing this fact, that this right to “alter or abolish” the form of government is one of the rights “retained by the people” acknowledged by the Ninth Amendment.¹

Article V, then, is properly seen as a partial delegation of the People’s sovereign power to rewrite the Constitution, to one particular set of institutions. And it is the only delegation of that power to any representative body: no other organ of government has the power of amendment. Article V, then, is the exclusive means by which any of the People’s representatives can propose and adopt an amendment. But because it is only a partial delegation of this sovereign power, the residuum remains with the People, who are always free to act entirely outside of the existing constitutional forms.

Indeed, if they are to act, if the natural right articulated in the Declaration is to be invoked, it must be entirely outside the existing legal forms. Representative institutions derive their authority only from the Constitution, and the Constitution creates only one method of amendment through representative institutions. As amendment outside of Article V would not rest upon the authority of the existing Constitution, it could hardly proceed through any of the institutions created by that Constitution. This would all but require some kind of direct-democratic process, very likely involving a popular referendum of some sort. A vote by the People themselves has a self-authenticating democratic legitimacy in a way that virtually nothing else can.

Of course, all of this comes with a corresponding difficulty. Amendment outside Article V, as I have just said, necessarily takes place entirely without the sanction of any existing law. This may be philosophically justified. But it would, nonetheless, make it difficult to secure any kind of consensus that the process had been legitimate. Article V provides what legal theorists call a “rule of recognition.”² We can identify what counts as part of the Constitution by checking whether a certain provision was adopted through the rule of Article V. Whether or not we like this rule, or the provisions adopted under its terms, we can all agree that it is the rule, and therefore we can all agree on what is or is not a part of the constitutional text.

Amendment outside Article V, on the other hand, lacks an agreed-upon rule of recognition. Even if we could persuade most Americans that the idea itself is sound, that the principles of the Declaration do in fact support this kind of action outside positive law, people would not have any agreed-upon standard for determining which kinds of amendment outside Article V are or are not valid. Presumably the proponents of the reform would propose the process by which they intended their proposal to be adopted. Perhaps people might even agree that there had to be some kind of referendum on ratification, for the reasons sketched above. But the devil is in the details. What kind of referendum? Who would have responsibility for framing the terms of the proposal? When would the vote take place? Who would be eligible to vote? What would be the required threshold for adoption? Operating without the sanction of positive law, it would be difficult to coordinate around answers to any of these questions. Indeed, it is not even clear who has the right to supply those answers.

As so often in our system, we might turn to Congress. Something like this, after all, is what the Founders did in 1787. The new Constitution, as the Preamble proclaims, was created by the People of the United States. The Continental Congress was, on the other hand, a creation of the states, first informally during the War for Independence and then formalized in the Articles of Confederation. The entire theory of the new Constitution was that the Articles did not, could not, preclude the People from creating something new. (Sound familiar?) This is why the provision in the Articles requiring unanimous consent among all thirteen states for any amendment did not prevent the Constitution from being adopted with only nine of the thirteen states on board. By the same token, the Continental Congress should have had no authority over the process.

Nevertheless, the proposed Constitution was sent from the Philadelphia Convention to Congress, which then forwarded it to the states for ratification. Similarly, then, our Congress might be able to play a coordinating role for amendment outside of Article V. Suppose there were a movement toward such an amendment, with polls showing, at a minimum, a solid majority of the country in favor. (That degree of support is, after all, necessary for the amendment ultimately to be adopted.) Then might not Congress pass legislation, or even just a joint resolution, spelling out the details of how the process should unfold? It could set the date for the ratification referendum, and also the threshold needed for passage. It could set the language of the proposal itself, or perhaps call a convention for that purpose.

Of course Congress has no legal authority to do any of this. It would not have legal authority even if it were to act by the two-thirds majority necessary to propose an amendment under Article V. The only lawful power Congress has over that process is the choice between ratification by state legislatures or by state conventions. But amendment outside Article V is not really a matter of legal authority anyhow. The authority of the new amendment would come not from any act of Congress but from the sovereignty of the People, expressed directly through the vote on ratification. Congress’s role as coordinating agent would be merely informal. It is a convenient forum, really the only convenient forum, for making the kinds of decisions that would have to be made before the whole process could even get underway. And if the People are to act outside any established form, there is no reason why they should not act on the day that Congress has suggested.

Having Congress involved in the process would be helpful for another reason. As I mentioned a moment ago, back in 1787, the Constitution was sent first to the Continental Congress, and thence to the states for ratification. One reason that this was important is that Congress had a chance to contest the propriety of the entire business, and did not do so. This was an important moment of the old order acquiescing in the creation of the new. Congress itself recognized that, yes, the People do indeed have the right to act outside the terms of the Articles of Confederation. Similarly, for Congress to be involved in coordinating an amendment outside of Article V would be for Congress to accept, in word and deed, that the People do in fact have the right to amend the Constitution outside of Article V. This would hopefully obviate any kind of crisis of legitimacy, any dispute over the validity of the amendment adopted that way.

For the same reason, it would be helpful to have the involvement, in some way, shape, or form, of the state governments. They are, after all, the most important power center in the existing amendment process. They are, therefore, the ones being kicked to the curb by reform. For a state government to participate in administering the ratification referendum, then, would be a similarly powerful moment of the old order acquiescing in the birth of the new. Of course the whole point of going outside Article V is to deny the states the power to block the reform. Their involvement, then, could not be any more than a courtesy. But we should offer them that courtesy, and hope indeed that they accept it.

Okay, so we know why to change Article V, and we have an idea as to how. What I haven’t yet discussed is the what: what should the new amendment process look like?

Naturally, my answer to this question is informed by everything I have said so far. The big problem with Article V is its undemocratic character. The new system, then, must be democratic. We can develop the point further: because it is undemocratic, Article V fails to vindicate the natural right of the People, as recognized in the Declaration, to alter or abolish their form of government when it becomes destructive of their interests. This was clear even at the Founding: one of Patrick Henry’s central charges against the new Constitution was precisely that it did not respect the right of the majority to alter the form of government.³

If we want to fix this, if we want the amendment process to be a realization of this natural right of the community, that would presumably imply some sort of nationwide popular referendum. This involves the People directly; it also allows each person’s vote to count for exactly the same as everyone else’s. For these reasons, any attempt to see an amendment adopted outside of the Article V process would almost certainly have to involve some kind of amendment. That is really the only way to access the primal sovereignty of the People, outside of any established legal forms. An action taken by the People, Themselves is self-authenticating, in a way: it has an authority of its own, that need not rest on positive law.

However, the intervening centuries have made people cautious about this kind of plebiscite, and for good reason. Many states employ something like this method of amending their constitutions, and the result is that amendment becomes just another path for getting people’s preferred policies enacted. California in particular is notorious for having dozens of proposed amendments on the ballot at each election. If Article V creates too high a barrier to amendment, the referendum-based systems in the states seem to go too far in the other direction: they make it too easy. Moreover, there is some fear that popular referenda would be too susceptible to populist demagoguery. Many would-be autocrats, like Türkiye’s Recep Erdoğan, have used popular referenda to reshape their nations’ constitutions and sweep away obstacles to their rule. And, notoriously, the 2016 Brexit referendum, on whether the United Kingdom should leave the European Union, set that country on a path of national immiseration.

Fortunately, there are some alternatives to referendum that also comport with the basic democratic criterion of political equality. In many countries, as I mentioned above, amendments are adopted solely through a vote in the national legislature. Now, in order for this to be properly democratic in our country, the structure of the Senate would need to change. But if Congress itself were not malapportioned, then one perfectly plausible option would be to allow it to adopt amendments by a two-thirds vote of each chamber, with no further step of ratification required. Alternately, the ratification step could be done through some kind of national convention, chosen for the purpose. There is even the possibility that the states could remain a part of the process, if they were not all given an equal vote. Suppose, for instance, that the threshold for adoption were not a fixed number of states, but states whose populations added up to some set percentage of the national total. That would seem to solve the democratic problem with Article V as it stands.

There is, in other words, no shortage of good answers to the question “what should we replace Article V with?” Precisely because the current system is so uniquely terrible, just about any system that anyone might devise would be a big improvement. Choosing among the available options is hardly unimportant, for the new amendment process will be a key part of our social contract going forward. The truly important thing, however, is to replace Article V with something. Accordingly, the most important quality for the new amendment system might just be its broad acceptability. We need something that can get everyone on board with a single reform proposal, not bogged down in endless debate among a dozen different proposals. Personally, I am inclined to think that there should be some direct democratic element. But I would happily accept a different approach, if it meant a realistic chance of getting something over the finish line.

Article V is not the flashiest problem with our Constitution. It is passive in a way that the other malformed institutions—the Senate, the Electoral College, the Supreme Court—are not. But I think it has an incredibly toxic effect on our political life. The Constitution is meant to be a creation of the People. It is the terms on which we live together as a nation, and the very premise of democracy is that we write those terms for ourselves. But because Article V so poorly realizes our founding principles of popular sovereignty, we have no efficacious means, as the People, of rewriting our social contract. The Constitution has become something alien to the People of today. It is something we have inherited from the ancient past, like the constitution that Solon bequeathed to the people of Athens.

This was never what the Founders intended, and it has, I think, a number of baleful effects—even aside from the way it insulates the other flaws in the Constitution from needful reforms. The Constitution is meant to be the register of our fundamental commitments as a nation. But we, who live under the Constitution today, are not in any sense the people who made those commitments. This cannot help but weaken the vitality of those commitments. Moreover, to the extent that people are dissatisfied with the constitutional system, there is no real outlet for that discontent. I do not think this is unconnected to Donald Trump’s political success, for he promises, in his own twisted way, a constitutional revolution, supplanting our Madisonian system with one rooted in the theories of Nazi legal philosopher Carl Schmitt. This is not, of course, a healthy outlet for frustration with the Constitution, nor even a legitimate one. But there is no healthy, legitimate outlet for those frustrations, and it is not surprising that they have sought an unhealthy one.

Fixing the amendment process, then, is not merely a technical matter. The point is not just to enable other needful amendments to be adopted; it is to fix, to reconstruct the terms on which the American People are constituted as a political community.

1. Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chic. L. Rev. 1043 (1988).
2. H. L. A. Hart, The Concept of Law (Oxford University Press, 1961).
3. “Patrick Henry Speech Before Virginia Ratifying Convention.” Teaching American History (teachingamericanhistory.org).