8 Pages Posted: 8 Aug 2011 Last revised: 13 Aug 2011
Date Written: April 1, 2011
The thesis of this article is that the procedure for amending the American Constitution in Article V is defective and should be changed. The Constitution created a federal government of limited and enumerated powers. Unfortunately, the Constitution of 1787 is not working as it was designed to work. In many key areas, the charter has been reinterpreted so as to allow the federal government to expand beyond the limited powers in the original design. By making the Constitution difficult to amend, the framers thought they could preserve its integrity, but that plan has obviously failed. In light of the erosion of the original understanding of the Constitution, how can anyone be confident that other constitutional safeguards will not be lost? This article maintains that the difficult amendment procedure laid out in Article V is primarily responsible for our current predicament. An easier amendment process would help to bridge the gulf that presently exists between the constitutional text and the government we actually have. Instead of the two-thirds vote necessary for Congress to propose amendments or for the states to call a convention, we should consider lowering the threshold to a simple majority. And instead of the three-fourths vote necessary for the states to ratify an amendment, we should consider lowering that threshold to two-thirds.
Suggested Citation: Suggested Citation
Lynch, Timothy, Amending Article V (April 1, 2011). Tennessee Law Review, Vol. 78, No. 3, p. 823, Spring 2011. Available at SSRN: https://ssrn.com/abstract=1906696