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Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them

74 Pages Posted: 27 Jan 2011  

Michael B. Rappaport

University of San Diego School of Law

Date Written: January 26, 2011

Abstract

The amendment provisions of the United States Constitution have a serious defect. Although some commentators claim that the supermajority rules in these provisions are too strict, that is by no means clear. Rather, the clear defect in the amendment provisions is that the only effective way they provide of amending the Constitution requires Congress’s approval and therefore Congress enjoys a veto over all amendments. While the Constitution does formally allow the state legislatures to seek to amend the Constitution through a national convention, that amendment method is broken. Not only has the national convention method never been used to pass an amendment or even to call a convention, the state legislatures are unlikely to ever use this method, because of the state legislatures’ fear of a runaway convention that might seek to enact constitutional amendments that they strongly dislike.

This congressional veto over amendments has significant normative implications. It suggests that the Constitution cannot be amended in a way that will constrain congressional power. It also makes it unlikely that the Constitution can be amended to limit the federal government or to expand state authority, because Congress is unlikely to support these changes. While it has often been assumed that the increased nationalism of the Constitution and government over the course of American history reflects changes in technology and values, a significant portion of this nationalist movement may instead be the result of a biased amendment procedure.

In addition to exploring the normative implications of the broken amendment procedure, the article also proposes a new amendment method. Under this state drafting procedure, an amendment would be enacted when it was approved by two thirds of the state legislatures and was ratified by three quarters of the states through either state conventions or ballot measures. Finally, the article argues that this reform of the amendment procedure could actually be passed under the national convention method and proposes a strategy for enacting it.

Keywords: constitutional law, constitutional amendment, national convention, constitutional convention

JEL Classification: K10, K39

Suggested Citation

Rappaport, Michael B., Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them (January 26, 2011). Virginia Law Review, Vol. 96, No. 7, November 2010; San Diego Legal Studies Paper No. 11-049. Available at SSRN: https://ssrn.com/abstract=1748854

Michael B. Rappaport (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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