The Tiered Article V

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.