Renewing Federalism by Reforming Article V: Defects in the Constitutional Amendment Process and a Reform Proposal

Cato Institute Policy Analysis, No. 691, January 2012

20 Pages Posted: 3 Apr 2012  

Michael B. Rappaport

University of San Diego School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: January 18, 2012

Abstract

The constitutional amendment procedure of Article V is defective because the national convention amendment method does not work. Because no amendment can be enacted without Congress's approval, limitations on the federal government that Congress opposes are virtually impossible to pass. This defect may have prevented the enactment of several constitutional amendments that would have constrained Congress, such as amendments establishing a balanced budget limitation, a line-item veto, or congressional term limits. The increasingly nationalist character of our constitutional charter may not be the result of modern values or circumstances, but an artifact of a distorted amendment procedure. Article V should be reformed to allow two-thirds of the state legislatures to propose a constitutional amendment which would then be ratified or rejected by the states, acting through state conventions or state ballot measures. Such a return of power to the states would militate against our overly centralized government by helping to restore the federalist character of our Constitution. Moreover, a strategy exists that would allow this reform to be enacted.

Suggested Citation

Rappaport, Michael B., Renewing Federalism by Reforming Article V: Defects in the Constitutional Amendment Process and a Reform Proposal (January 18, 2012). Cato Institute Policy Analysis, No. 691, January 2012. Available at SSRN: https://ssrn.com/abstract=2033376

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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