Binding Authority: Unamendability in the United States Constitution — A Textual and Historical Analysis

52 Pages Posted: 15 Feb 2016 Last revised: 15 Aug 2017

See all articles by George Mader

George Mader

William H. Bowen School of Law -- University of Arkansas at Little Rock

Date Written: February 28, 2015

Abstract

Through an examination of the text of the original Constitution and the history of its framing, this article demonstrates the framers understood the difficulties — logical, syntactic, and political — involved in creating unamendable constitutional provisions, yet did create two such provisions. One provision expired by its own terms in 1808, but while it was in force it barred amendment of several other provisions. The other is the ban on religious tests in Article VI, which is permanent — it may never, ever be removed. Additionally, this article demonstrates it is possible for a present-day amendment to be permanently unalterable and for such an amendment to make a part of the existing Constitution similarly unalterable. In the past, the possibility of such unalterable amendments was accepted. Indeed, an amendment proposal sent by Congress to the states for ratification in 1861 was an attempt to avoid the Civil War by prohibiting forever any federal interference with slavery in the states. Each of these permanent limitations (or attempted limitation) on amendment was aimed at compromise to avert a serious national crisis. Despite its usefulness as a tool for binding compromises, unamendability is a dangerous device, so the article also addresses whether the power to create permanent provisions should be permanently removed, and how that may be accomplished.

Keywords: constitutional amendment, Article V, constitution, amendment, religion, religious test, equal suffrage, unamendable, unamendability, Article VI, Three-Fifths clause, Corwin amendment, Crittenden proposals, constitutional law

Suggested Citation

Mader, George, Binding Authority: Unamendability in the United States Constitution — A Textual and Historical Analysis (February 28, 2015). 99 Marquette Law Review 841 (2016). Available at SSRN: https://ssrn.com/abstract=2729527

George Mader (Contact Author)

William H. Bowen School of Law -- University of Arkansas at Little Rock ( email )

1201 McMath Street
Little Rock, AR 72202
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
99
Abstract Views
557
rank
263,556
PlumX Metrics