Popular Sovereign Versus Government Institution Generated Constitutional Norms: When Does A Constitutional Amendment Not Amend the Constitution?

Abstract:     
An elementary principle of constitutional law holds that a constitutional amendment alters or nullifies preexisting and conflicting constitutional provisions. Can we imagine a scenario in which ratification of a new constitutional amendment would leave preexisting conflicting constitutional provisions fully intact, unaltered, and undisturbed? This Article argues that the best understanding of fundamental adjudicatory principles compels us to recognize just such a possibility.

The linchpin of the argument lies in the idea that constitutional provisions emanate from two distinct sources, and therefore are of two distinct classes, with one class hierarchically superior to the other. Under the extant constitutional orthodoxy, all constitutional provisions emanate from a single source -- We the People -- either via Article VII, the Constitution's ratification provision, or Article V, the Constitution's amendment provision. A major portion of this Article is dedicated to debunking the orthodox vision. An accurate description must admit that constitutional provisions emanate from two separate and distinct sources -- We the People and ordinary legislatures.

Constitutional amendments are especially vulnerable to the charge that they emanate not only from We the People, but also from ordinary legislatures. Rather than directly consulting the popular sovereign, Article V employs state legislative bodies as agents through which We the People purportedly act to ratify new constitutional provisions. When Article V's principal-agent mechanism operates well, the state legislatures ratify amendments reflecting and embodying the popular sovereign's deliberated consensus sanctioning the creation of new higher law principles. In such cases, passage via Article V signals and formalizes We the People's act of constitutional textual norm generation. Principal-agent relationships, however, are always subject to agency problems. When Article V's principal-agent mechanism breaks down the state legislatures ratify amendments over which the popular sovereign has not reached a deliberated consensus, or even ratify amendments contrary to a deliberated popular consensus. In such cases, the formal satisfaction of Article V requirements does not signal an act of We the People. It instead signals the creation of a new constitutional provision by ordinary government institutions -- state legislatures -- which malfunction as agents through which We the People act. For this reason, at least some constitutional amendments are bound to lack a legitimate popular sovereignty pedigree.

Once courts acknowledge that constitutional provisions spring from two separate and distinct sources -- both We the People and ordinary government institutions -- straightforward application of the adjudicatory meta-norms that govern all cases in which legal norms conflict leads to three related conclusions: Popular sovereign-generated and legislature-generated constitutional provisions (1) are different in kind, (2) are hierarchically ordered, and (3) when in irreconcilable conflict, the former must always and unconditionally trump the latter, regardless of which norm is of more recent vintage. As such, a preexisting constitutional provision bearing a true popular sovereignty pedigree should trump a conflicting newly ratified constitutional provision which lacks a true popular sovereignty pedigree.

Keywords: constitution, popular sovereignty, amendments, Article V

JEL Classifications: K1, K3, K4

Accepted Paper Series