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Thursday, March 13, 2008

The Folly of the Article V Amendment Process

Simon asks for my views about Article V’s amendment process.  On his website, he notes that I disapproved of Article V at a recent Federalist Society conference.  By contrast, he approves of Article V, asserting that  “Article V is working terrifically well, however, and doing what it's designed to do: preventing the ratification of amendments that don't rest on a consensus enjoying genuinely broad-based and sustained support among the American people.”

How difficult ought it to be to amend a constitution?   Simon and I can agree on some simple truisms.   We both agree that constitutions ought to be more difficult to amend than an ordinary statute, because constitutional change ought (as Simon says) to rest on some broad-based and sustained popular consensus.  But presumably constitutions ought not to be absolutely unamendable:  If a very large majority of the people want constitutional change for a sustained period of time, then they ought to get such change.  In short, Simon and I agree that the right level of amendability lies somewhere between the two extremes of the amendability of an ordinary statute and total unamendability.

I suggest that (1)  these simple premises suggest that Article V makes the U.S. Constitution too difficult to amend and (2)  by formally barring amendments desired by an overwhelming majority of the people, Article V has rendered itself practically obsolete.  Following the maxim that the Constitution is not a suicide pact, the people have tacitly bypassed Article V in favor of informal amendment by judicial decision.  Since I dislike such a judicial amendment process, I dislike Article V.  It would be much wiser to make formal amendment easier – not too easy, mind you, but easy enough for, say, 90% of the population to get the constitutional change that they want if they repeatedly ask for it -- and thereby eliminate the necessity of lawless and non-deliberative judicial amendment. 

But let me elaborate on each of these two points.   

(1) The Article V process is so onerous that it prevents constitutional change even when an overwhelming majority of Americans desire such change. Under Article V, 14 states can veto an amendment. But the fourteen least-populous states have a combined population of less than 6% of the entire nation. Hence, an amendment supported by 94.5% of the people can be blocked by a tiny minority of thinly populated states. (The census figures are included at the end of this post). Moreover, this 5.5% of the population does not merely have suspensive veto that would require 95% of the population to approve an amendment repeatedly: The 5.5% have an absolute veto that they can deploy year after year, regardless of how sustained the level of support for an amendment desired by 94.5% of the population.

Simon says that, if an amendment enjoys sustained and broad-based popular support, it ought to be approved. By this premise, how can he approve of an amendment process that allows 5.5% of the population to bar absolutely an amendment regardless of how intensely or how long the overwhelming majority of the nation demands the amendment? Simon says that allowing amendment by 2/3 of each House of Congress is “appalling.” But this is an adjective, not an argument. I prefer the German Grundgesetz's method of bicameral amendment by super-majority to Article V, because the former allows regular and intelligent popular constitutional discussion of critical issues like federalism. Unlike Germany, we update our constitution through judicial decisions that lack transparency or popular participation. I find amendment by a 5-4 vote of justices to be "appalling."

(2) Simon is simply incorrect that Article V insures that constitutional change enjoys broad-based popular support. To the contrary, Article V insures that the nation will find some other method of amendment, and such informal amendment often fails to insure deliberative popular consensus. (For elaboration of the point, see Adrian Vermeule's working paper, "Constitutional Amendments and the Constitutional Common Law").(Link here)

The worry that Article V makes itself obsolete and thereby encourages judicial updating of the Constitution is not merely academic. In 1918, the U.S. Supreme Court, by 5-4 decision, struck down the 1916 Keating-Owen Act forbidding the interstate shipment of goods manufactured with child labor. This Act was enacted with the overwhelming support of both Houses of Congress. Every region of the nation, north and south, east and west, supported the statute. Predictably, a movement sprang up to amend the Constitution and authorize Congress to forbid child labor. But the anti-child labor amendment languished for more than a decade, because a handful of rural states opposed the amendment. As a result, when the voters overwhelmingly approved a New Deal presidency and New Deal Congress in 1936, no one wasted anytime trying to reverse judicial decisions by constitutional amendment. Instead, FDR simply changed the composition of the Court.

Simon might respond that such informal amendments by judicial decision are simply lawless and do not disprove the wisdom of Article V. But stupid laws encourage lawlessness: Set the speed limit too low, and don't be surprised when everyone breaks it. Lawless or not, such informal judicial amendments surely enjoy the overwhelming support of the American people. If you doubt it, imagine the popular reaction to a proposal to, say, eliminate the federal Social Security Act’s old age insurance program, a program that likely was unconstitutional under the Court’s decision in United States v Butler, 297 U.S. 1 (1936). When one makes a constitution too difficult to change by lawful means, the people will find a way to change it unlawfully.

As an example, consider article 13 of the Articles of Confederation: It required the unanimous consent of all thirteen states for amendment of the Articles. Such an amendment process would have doomed the ratification of any comprehensive change of the Articles (Rhodes Island had not approved the Constitution when Washington was inaugurated). So the framers of the United States Constitution ignored article 13, instead lawlessly using article 7 of the U.S. Constitution as the rule for constitutional change.

Does Simon think that Madison, Hamilton, et al, were wrong to think that article 13 of the Articles of Confederation made constitutional change too difficult? If not, then what is Simon’s principled reason for distinguishing between a method of amendment that lets Rhodes Island hold the entire nation hostage and Article V’s method, which lets 5.5% of the population hold a nation hostage? Once one concedes that it is not always a good thing to allow tiny minorities to obstruct change, then one must come up with some reasonable theory for how much minority obstruction is desirable.

I submit that no one not hopelessly addicted to idolatry of our constitutional status quo would think that it is desirable to allow fourteen underpopulated states to extort bribes from the rest of the nation as the price for constitutional change even when that proposed change enjoys overwhelming popular national support. Donald Lutz has tried to measure formally the amendability of national and state constitutions, finding that the U.S. Constitution is the hardest to amend. (Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 Am. Pol. Sci. Rev. 355 (1994)). Perhaps we are uniquely wise in our embrace of Article V. But perhaps Simon ought to entertain the possibility that, if you are the only nation on the globe that adheres to a practice, then perhaps the practice is silly.

(For those who want to know which fourteen states could block an Article V amendment, here are some figures from the 2007 census estimates: New Mexico (1,969,915 or 0.64% of total population), West Virginia (1,812,035 or 0.59% of total population), Nebraska (1,774,571 or 0.58% of total population), Idaho (1,499,402 or 0.49% of total population), Maine (1,317,207 or 0.43% of total population), New Hampshire (1,315,828 or 0.43% of total population), Hawaii (1,283,388 or 0.42% of total population), Rhode Island (1,057,832 or 0.35% of total population), Montana (957,861 or 0.31% of total population), Delaware (864,764 or 0.28% of total population), South Dakota (796,214 or 0.26% of total population), Alaska 683,478 or 0.22% of total population), North Dakota (639,715 or 0.21% of total population), Vermont (621,254 or 0.20% of total population). If one adds up these states’ share of the national population, the total share comes to 5.41% of the total. Note that these fourteenth states could block change that is supported by a demographically diverse coalition of regions – rural places like Mississippi, Arkansas, Alabama, and Oklahoma; conservative places like Utah; and so forth. In short, there is no plausible argument that the opposition of these fourteenth states indicates that there is an absence of a broad-based consensus in favor of an amendment).

Posted by Rick Hills on March 13, 2008 at 11:16 AM in Constitutional thoughts | Permalink


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The very fact that it's taking so long to get an amendment that gets the money out of politics, proves the Constitution's amendment process is way too hard. Hell, money in politics is basically the world's worst problem yet there still isn't even a word about keeping money out of politics in the Constitution.

Posted by: Gene Silvers | Jul 28, 2014 5:06:43 PM

DM, quite aside from any other problems, that proposal ignores the fact that in some states (Texas and Montana, for example) - the legislature does not meet every year, while in many states (the above two again, or Indiana, for but three examples) the legislature doesn't meet in constant session, or anything remotely approaching it, but rather, for short sessions at pre-appointed times. So, here in Indiana, to simplify somewhat, the General Assembly meets in mid-January, has to adjourn by mid-March in even-numbered years, and has to adjourn by the end of April in odd-numbered years. See IC 2-2.1-1. I know, it's unbearably silly, but that's the way it's set up, and it's not going to change any time soon. With that in mind, imagine a Constitutional amendment that Congress sends to the states on May 1st in an odd-numbered year. The Indiana General Assembly won't even begin processing that amendment until the the middle of the following January, at which point it has not a year, but four months to take action. The part-time setup creates a traffic jam of business in optimal circumstances, let alone with a federal amendment dropped in that has to be responded to (in legislature time) all-but immediately. Meanwhile, the Montana legislature, which meets only in odd-numbered years, won't even convene again (emergency sessions aside) until months after the expiry of your one year clock. That's not to say that there aren't any other problems with the proposal, but that's the first one that springs to mind.

Posted by: Simon Dodd | Mar 14, 2008 5:25:39 PM

I think a good change to the amendment process would be to give the states one year from the time an amendment passes both houses of Congress with supermajorities. After one year, the amendment goes into effect if 75% (or 67%, whatever) OF ONLY THOSE STATE LEGISLATURES THAT HAVE HELD AN UP-OR-DOWN VOTE ON THE AMENDMENT have passed it. E.g., if 32 of the state legislatures have voted on the amendment within the year, then the amendment would go into effect if 24 approved it and 8 rejected it. The purpose of this would be to reduce the substantial obstacles involved in getting an amendment on the radar screen of 50 different legislatures. There could be some kind of quorum requirement--e.g., at least 25 states must have held an up-or-down vote.

Posted by: DM | Mar 14, 2008 4:38:32 PM

Anyone that respects the Constitution should seriously examine our effort at www.foavc.org to get the nation's first Article V convention by making Congress obey the Constitution.

Posted by: Joel S. Hirschhorn | Mar 14, 2008 7:44:03 AM

Prof. Hills,

Thanks for indulging me, this is very helpful in clarifying your points last week. I should clarify for my own part you give me a little too much credit if you're implying I formed much of an argument in my post; that post served to offer notes about points made at the symposium that provoked a reaction, and with regard to the Article V points, to serve as a placeholder for subsequent writing - hence, adjectives rather than argument. As you point out, I think we start in the same place, to a great extent, but reach different outcomes. I don't want to try to develop a fully-fledged response off-the-cuff, so this is just to respond briefly to a few points that you bring up.

In view of your demographic math, I suppose that you would be similarly troubled that, just as fourteen states can block an amendment, thirty-four Senators representing the seventeen least populous states can, at least under present rules, block legislation favored by a majority (and constitutional amendments, under your proposal), even though they represent only 7.29% of the population.* Do you also submit that only someone who hopelessly fetishizes our constitutional status quo would think that it is desirable to allow the representatives of seventeen relatively underpopulated states to extort bribes from the rest of the nation as the price for legislation, even when that proposed law enjoys overwhelming popular national support?

One reply might be that a scenario where the Senate breaks along those lines is a little unrealistic; I'm hard pressed to imagine what overwhelmingly attractive legislation would unite Sens. Leahy, Enzi, Sanders and Barrasso in opposition while attracting the support of the big state delegations. But that same problem that bedevils the observation that Senators representing 7.29% of the population can torpedo legislation - or Constitutional amendments in your own proposal - also undercuts your observation that "Article V’s method ... lets 5.5% of the population hold a nation hostage." Theoretically - I mean, mathetically - that's a possibility. But if hypothetical concerns are insufficient basis for mere state law, as we're told by one side in the Indiana Voter ID cases this term, how can it support a radical change in the Constitution? If the fourteen smallest states formed a faction -- "a number of citizens ... who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens," Federalist No. 10 -- then that might be one thing. But those states are diverse in geography, politics and other interest. I find the hypothetical scenario where those fourteen are united in opposition to an opposition otherwise commanding unanimous support quite hard to envision.

Two other points. I don't know that I'd agree with the characterization of what happened in 1787 that seems to undergird your claim that "the framers of the United States Constitution ignored article 13, instead lawlessly using article 7 of the U.S. Constitution as the rule for constitutional change." I wouldn't say that the framers fond an alternative method to amend the articles of confederation; they created a new compact independent of and separate from the articles. Article XIII required unanimous consent for "alteration" of the articles, but the founders didn't alter the Articles: they decided to ignore them. It was the preceding clause - "the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual" that the Constitution obviated by plunging into disuse. The requirement for unanimous consent was obviously silly; you write that "[o]nce one concedes that it is not always a good thing to allow tiny minorities to obstruct change, then one must come up with some reasonable theory for how much minority obstruction is desirable," but I think that the Constitution and two hundred plus years of practice under it provide a fairly persuasive answer. With only two exceptions, prohibition and direct election of Senators, one of which has since been corrected, Article V has done us very well. I do concede, as I must, the force of your point that what the people won't do within the Constitution they may do without. Alas, unconstitutionality rarely dissuades the majority; as Prof. Althouse once pointed out, "[p]eople use the Constitution when they like what it says, but when it's in the way, they're not very respectful of it," (quoted 82 ABA J., Oct. 1996 at 79. And if you stayed for Saturday's panels, you may recall that I asked Prof. Clark whether one of the virtues of the initiative process might arguably be that it tames the instinctive desire to do an end-run around formal processes and thereby might serve as a safety valve preventing judicial activism. That seems to deal in similar concerns. I don't like legislation by courts any more than do you, but I think there are costs not worth paying even assuming it's a given.

Lastly, I certainly "entertain the possibility that, if you are the only nation on the globe that adheres to a practice, then perhaps the practice is silly." Sometimes the practice isn't silly. I don't know of any other country on the globe that follows the exclusionary rule (my recollection is that Prof. Kerr concluded the same thing a year or two ago), for example. Sometimes the outliers are the vanguard, and it certainly doesn't follow that because the rest of the world does things a different way we should follow them.


* Assuming Wikipedia's numbers are accurate - or at least accurate enough for presentpurposes - and my math is right, I count Utah, Nevada, New Mexico,West Virginia, Nebraska, Idaho, Maine, New Hampshire, Hawaii, Rhode Island, Montana, Delaware, South Dakota, Alaska, North Dakota, Vermont and Wyoming, with two Senators apiece, to account for 7.29% of the total population.

Posted by: Simon Dodd | Mar 13, 2008 11:11:15 PM

Here's a particularly egregious part of Article V:

"[N]o state, without its consent, shall be deprived of its equal suffrage in the Senate."

Why egregious? Because it essentially prevents any change to the structure of the Senate. An interesting question: would this proviso render an amendment eliminating the Senate unconstitional?

Posted by: Matt Bodie | Mar 13, 2008 5:08:08 PM

This will be getting a bit into sci-fi territory, but theoretically the 5.5% figure is actually an overstatement. All a state needs to defeat a constitutional amendment is either a majority of state legislators voting against the amendment or a majority of voting-age citizens voting against the amendment in state conventions. This means either that you need a bare majority of the voters in state conventions, which would be, at most, 6,195,557 (that's a bare majority of the total population of each of the smallest 14 states discounted by the 25% of the population that's under 18). That's only 2.2% of the population as of 2000, and that's without discounting for turnout, ineligible or unregistered voters, etc.

Using the numbers available here:
it looks like all you need to defeat a constitutional amendment through the state legislative process is 970 legislators (that's the aggregate of a bare majority of each of the 14 smallest states' legislative bodies), which, just for fun, is .0003% of the 2000 US population.

Posted by: Paul Killebrew | Mar 13, 2008 3:16:21 PM

As I have argued in "Our Constitution as Federal Treaty," 31 Hastings Const. L. Quart. 269 (2004), the Framers did not violate the Articles of Confederation when they adopted the nine-state convention ratification rule in Article VII of the U.S. Constitution. As many of the Framers had pointed out, several states had violated the Articles of Confederation; therefore, under treaty law, other states-parties to the Articles did not have to comply with their obligations under the Articles in regard to those states that had violated the Articles. Therefore, unanimity was not required for amending the Articles under the conventional law of nations.

The problem was determining which and how many states had violated their obligations under the Articles and who was going to make such a determination. (The states infrequently had used the federal courts under the Articles in inter-state disputes.) The practical and lawful solution was to employ the nine-state rule in Article IX of the Articles for ratifying treaties. In other words, the Constitution was a treaty supplanting most of the states' earlier obligations under the Articles.

Posted by: Francisco Forrest Martin | Mar 13, 2008 12:10:57 PM

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