The Tiered Article V

35 Pages Posted: 10 Oct 2013

See all articles by Michael Gentithes

Michael Gentithes

University of Akron School of Law; Chicago-Kent College of Law - Illinois Institute of Technology; New York University School of Law; Loyola University Chicago School of Law

Date Written: September 1, 2013

Abstract

When the authors of the United States Constitution drafted Article V, they intended to strike a balance between constancy and modernity. That balance would account for the authors’ fallibility while at the same time establishing an enduring constitutional regime that was the unquestionable source of the nation’s most deeply entrenched legal norms. Experience has shown that Article V fell short of that aim. Instead, it has handcuffed constitutional modernization, either precluding needed reforms or forcing constitutional changes to seep through alternative, informal pathways for the creation of new “constitutional” law. That pattern can and should be averted.

In this Article, I propose a unique, tiered scheme for constitutional change that would work alongside existing Article V procedures. That scheme can solve the modernization problem facing our constitutional regime without undermining its constancy or fundamental status. The new amendatory procedure would contain three steps for the easier proposal, initial passage, and final ratification of an amendment that is based upon existing language in a state constitution. It would lower the supermajority requirements of Article V, but would be supported by many of the same justifications levied in favor of those stringent supermajority requirements in the first place. Such a change to the way we change the Constitution is sorely needed.

Suggested Citation

Gentithes, Michael, The Tiered Article V (September 1, 2013). Whittier Law Review, Vol. 34, No. 3, 2013, Available at SSRN: https://ssrn.com/abstract=2337822

Michael Gentithes (Contact Author)

University of Akron School of Law ( email )

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Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
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New York University School of Law ( email )

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New York, NY 10012-1099
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Loyola University Chicago School of Law ( email )

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