Article V

There are two important things to know about Article V, the part of the Constitution that spells out how to amend that document. The first is that it’s hard to amend the Constitution. The second is that amendments matter a lot less than most people think. Amendments change the text of the Constitution, but—the key point—very important changes happen even when the text of the Constitution stays the same. The Constitution, in practice, definitely changes, but amendments are not the main way that those changes happen.

These two things—how hard it is to amend the Constitution, and how so many changes happen without amendments—are opposite sides of the same coin. Because it is so hard to change the text, we have figured out other ways to make the kind of changes that you might expect to get from amending the text. A nation, like other living things, has to adapt if it is to survive. If one means of adaptation is closed off, it has to find another way. That is what the U.S. constitutional system has done. Our constitutional system—our actual system, in the way it actually works, as opposed to what’s written down on paper—is changed by Congress, the President, the courts, and often just by changed understandings among the people, even when the text stays the same.

Sometimes people say that while the words of the text of the Constitution haven’t changed, the “interpretation” of the Constitution has. There’s no harm in thinking of it that way. But however you explain it, the fact is that our understanding of what the Constitution means has changed enormously over time, in ways that don’t have a lot to do with constitutional amendments. 

Specifically, these four things are, I think, true: (1) There have been important changes in the basic nature of our government that took place without any change in the written Constitution. (2) Several amendments that seemed to change things were added to the Constitution after the change had already happened in most of the country. The amendment didn’t cause the change; it just confirmed it. (3) A couple of times, a proposal for a constitutional amendment was rejected—and things changed anyway, in the way the amendment would have changed them. The amendment was formally rejected—it’s not in the Constitution’s text—but, in practice, it might as well have been adopted. (4) Some amendments that were added to the text tried, but failed, to change things when they were adopted; but many years later, when the country was ready, it changed in the way the amendment had supposedly required long before.

Here are some examples of each.

(1) Changes that happen even though there’s no amendment. For a long time after the nation was founded, the federal government did not do a lot. State governments were much more important. That’s changed. Today, federal law affects every aspect of our lives. But you cannot trace that change to any constitutional amendment.  Some people will say that, all along, the Constitution gave the federal government the potential to play that important role; the federal government just chose not to. Other people might say that the federal government should not be so powerful. But there is no denying this enormous change in our system, and there’s no amendment that caused it.

(2) Amendments that just confirmed a change that already happened. There are many examples of this, but here is one that a lot of people overlook. When the Constitution was first adopted, the people did not vote for United States Senators; a state’s Senators were elected by that state’s legislature. The Seventeenth Amendment provided that Senators are elected by popular vote. Many people say that the Seventeenth Amendment made an important change in our system, because it took power away from state governments.

Having Senators elected by the people, instead of by state legislators, may have been a big change. But the Seventeenth Amendment did not have much to do with it. Before the Seventeenth Amendment was adopted, most states had already cleverly figured out ways to make sure that the people—not state legislators—elected Senators. For example, several states held a popular vote for the Senate and, while officially that vote didn’t count, any state legislator who did not pledge to follow the result of that vote would have a disparaging label next to his name on the ballot. So, as you can imagine, the legislators followed the people’s decision. All of that happened before the Constitution was amended.

You can compare this change to a change in the way we elect the President. Formally, the President is elected by electors, not by the voters directly. Originally, the idea was that electors would be people with good judgment who would make up their own minds about who should be President. Now, for practical purposes, the electors vote automatically for the candidate who won the vote in their state. No constitutional amendment authorized this major change.

(3) Constitutional amendments that were rejected—but in practice, might as well have been adopted. There are a couple of examples, but the clearest one is the Equal Rights Amendment (the “ERA”), which would have forbidden the federal and state governments from denying equal rights on the basis of sex. Congress approved the amendment, but not enough states did, so it never became part of the Constitution. But the Supreme Court interpreted other parts of the Constitution to prevent sex discrimination, and today it is hard to identify any way in which the law would be different if the ERA had been formally added to the Constitution.

(4) Amendments that became effective only when the country had changed for other reasons. The Fifteenth Amendment supposedly guaranteed that people could not be kept from voting because of their race. It was added to the Constitution in 1870. But well into the middle of the twentieth century, African-Americans in many parts of the United States were kept from voting by illegal means. It wasn’t until the Voting Rights Act of 1965 that the promise of the Fifteenth Amendment was finally kept. If you just picked up a copy of the Constitution and read it, you would be completely misled about this disgraceful history. The Fourteenth Amendment, adopted in 1865, had a similar fate. It was intended to prevent many forms of discrimination against minorities. But its promise was not realized until almost a century later, during the civil rights era.

A case can be made that the earliest constitutional amendments did matter. That would include the Bill of Rights, for example, and the Twelfth Amendment, which fixed a problem in the way the President and Vice President were originally chosen. And several amendments have been useful housekeeping measures, like the Twenty-Fifth Amendment, which says what happens if the President is disabled. But if you really want to understand how the United States Constitution changes—in practice, not just on paper—constitutional amendments are a small part of the story. The real action—in many ways, our real Constitution—is elsewhere, in the way the courts, Congress, the President, and the people in their daily lives have brought us the Constitution we have today.

Originalism—the view that we ought to follow the Constitution’s original meaning—holds that the constitutional amendment process should be the primary means for constitutional change. The amendment process, however, has been criticized for having two defects. One is that it is too strict and therefore makes it too difficult to enact amendments. The other is that it is biased in favor of the federal government and therefore does not allow amendments that would limit the national government. While these are important criticisms, these defects do not derive from the amendment process itself, but instead from the failure to employ the Constitution’s original meaning. If the original meaning were consistently followed, both of the defects would be eliminated. 

Some critics of originalism argue that the amendment process is too strict because it is difficult to secure approval by two-thirds of both Houses of Congress and three-quarters of the states. Therefore, these critics contend the Supreme Court should engage in nonoriginalist judicial interpretation to allow for modern circumstances and values to be incorporated into the Constitution.

The amendment process, however, is not too strict to allow for constitutional change. It is true that the process does require amendments to be supported by a consensus. But there are powerful reasons for requiring such support, such as preventing constitutional provisions that are strongly opposed by a substantial minority of the country from being enacted, which would undermine the nation’s allegiance toward the Constitution. See John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution (2013).    

Moreover, this strict amendment process has not excessively impeded constitutional change, as it has allowed for many significant constitutional amendments over the nation’s history, including the Bill of Rights and Amendments concerning the income tax, the direct election of senators, the two term presidency, and the right to vote of women and 18 year olds. 

The problem is not that the constitutional amendment process requires a consensus but that the Supreme Court often intervenes before a consensus can emerge. A consensus often takes a long time to develop. But if the Supreme Court believes it can “fix” the Constitution whenever a significant portion of the country believes the Constitution should be changed, then it will intervene before the amendment process has had a chance to operate. As a result, no amendment will be enacted, since the Court has already made a change. By contrast, if the original meaning were followed, the amendment process would have the opportunity to enact changes in the Constitution that are supported by a consensus.

This analysis helps to explain why so much constitutional change has occurred in the last three generations through judicial interpretation rather than the amendment process. For example, during the New Deal, the Roosevelt Administration did not attempt to pass constitutional amendments to give the federal government more regulatory power. Instead, it attempted to pack the Supreme Court. While Roosevelt’s Court packing plan was initially defeated, eventually he placed 8 of the 9 Justices on the Court and secured a radical change in constitutional doctrine. There seems little doubt that the nation would have supported an amendment that conferred additional regulatory powers, but there is a good chance that the consensus requirement would have meant the federal government would have received less power than the Court eventually granted it. 

A second problem with the amendment system is that its current operation is biased in favor of the federal government. The Constitution provides two methods for proposing amendments. While all of the existing amendments have been enacted through the congressional proposal method, in which two-thirds of each House of Congress proposes an amendment, no amendment has ever passed through the convention method. Under that method, two-thirds of the state legislatures can apply for Congress to call a convention that would then decide whether to propose an amendment.

The convention method was an essential part of the original Constitution. The drafters of the Constitution recognized that the congressional proposal method was controlled by the federal government. Consequently, it could not be relied upon to reform federal governmental abuses.  The drafters therefore placed the convention method into the Constitution, since this method largely bypasses the federal government. Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 28 Const. Commentary 53 (2012).  

Unfortunately, this amendment method is broken. Many people who favor constitutional amendments that would limit the federal government are nonetheless unwilling to use this method, because they fear what is called a runaway convention—a convention that is called to propose amendments on one subject but then proposes them on other matters. For example, state legislatures might apply for a convention to pass a balanced budget amendment, but the convention might then decide to propose an amendment allowing school prayer.

This fear of a runaway convention has hobbled the convention method. Over the last several decades, a number of amendments that would have limited the national government’s powers have had strong support in the country—such as amendments concerning a balanced budget, congressional term limits, and a line item veto. But since these amendments are generally opposed to Congress’s institutional interests, Congress is extremely unlikely to propose them. Some of these amendments, however, would probably have been enacted under a functioning convention method.

Significantly, the problem of the runaway convention is the result, once again, of not following the Constitution’s original meaning. Many constitutional commentators have argued that a runaway convention is constitutional. In their view, the Constitution does not allow the states to limit the convention to a particular subject and therefore the convention is free to make proposals on any subject of its choosing. 

But this argument is mistaken. The Constitution says that the states may apply for “a convention for proposing amendments.” Is a convention limited to a subject “a convention for proposing amendments?” Of course it is. Thus, a limited convention is one of the conventions for which the states can apply. See Rappaport, The Constitutionality of a Limited Convention, supra.

If the original meaning were widely accepted, states could feel free to apply for a limited convention without fear of a runaway convention. This arrangement would eliminate the national government bias in the current operation of the amendment process. Thus, both alleged problems with the constitutional amendment process—the bias in favor of the federal government and the excessive difficulty of enacting constitutional amendments—would be eliminated if the Constitution’s original meaning were followed.