The Case for Presidential Illegality in Constitutional Amendment U of Texas Law, Public Law Research Paper 705
21 Pages Posted: 17 May 2019 Last revised: 13 May 2020
Date Written: May 2, 2019
The current amendment stasis in the United States raises a serious question with potentially grave consequences for the American project of constitutional democracy: has the Constitution seen its last amendment? The answer is quite likely yes — if the extraordinary level of political disagreement in the country remains as high as it is now. But this affirmative answer presupposes that reformers will continue to consider themselves bound by the codified rules in Article V. What if instead reformers come to believe the political climate makes it necessary to pursue unconventional methods to break through the barriers standing in the way of a constitutional amendment? Freed from their strict fidelity to the rigid rules in Article V, reformers might ultimately innovate a new path to formal constitutional change. This strategy would of course invite the powerful claim that reformers were acting illegally. But could their breach of Article V be simultaneously illegal yet legitimate? In this invited contribution for a symposium held at Drake Law School on the topic “Is it Time to Amend the Constitution?,” I suggest the answer is yes, provided reformers justify their violation of Article V as both a return to the popular sovereigntist beginnings of modern American constitutional democracy and an essential step to ensure the Constitution remains responsive to the needs of the country and reflective of the people’s values.
Keywords: Constitutional Amendment, United States Constitution, Articles of Confederation, Article V, Formal Amendment, Constitutional Design, Amendment Procedure, French Constitution, Charles de Gaulle, Philadelphia Convention, Referendum
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