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(University of Michigan Journal of Law Reform, Fall 1973)

ARTICLE V: CHANGING DIMENSIONS IN
CONSTITUTIONAL CHANGE

Francis H. Heller*

To anyone raised under the Constitution of the United States. that document's declaration that it is "the supreme law of the land" may appear as a commonplace assertion. In some other nations the constitution is not viewed as law, but is seen as a primarily political document.2 In fact, some foreign constitutions are formally proclaimed to be "political constitutions." The writers of the American Constitution were well aware that they were engaged in fashioning an arrangement for the exercise of political functions and the peaceful adjustment of political conflict. And, however much validity there continues to be to de Tocqueville's famous dictum that in America every issue of policy is translated into constitutional terms and debated as a legal issue, it is also a historical fact that, by long-standing precedent of the Supreme Court, some issues arising under the Constitution are candidly designated "political questions," while others are often avoided by the selective application of judicially developed rules of caution."

A constitution, viewed as a political document, is a framework

* Roy A. Roberts Professor of Law and Political Science. University of Kansas School of Law. M.A., 1941. J.D., 1941. Ph.D., 1948. University of Virginia.

'U.S. CONST. art. VI.

C. FRIEDRICH, CONSTITUTIONAL GOVERNMENT AND DEMOCRACY, ch. 9 (4th ed. 1968).

See, eg., POLITICAL CONST. OF COLUMBIA. Preamble (1886). See also CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (A. Blaustein & G. Flantz eds. 1971), a comprehensive loose-leaf collection of current constitutional texts.

THE Records of the Federal Convention of 1787, passim (rev. ed. M. Farrand 1937); Roche. The Founding Fathers: A Reform Caucus in Action, 55 AM. POL. SCI. REV. 799, 815 (1961), also in J. ROCHE, SHADOW AND Substance 91-126 (1964).

$ I A. DE TOCqueville, DemOCRACY IN America 284 (H. Reeve transl. 1898). Note also Corwin's observation that "[m]any other countries have... constitutions, but 'the constitutional lawyer' is a unique product of our system...." E. Corwin, The Twilight OF THE SUPREME Court xxii (1934).

Baker v. Carr. 369 U.S. 186. 210-27 (1962); Luther v. Borden, 48 U.S. (7 How.) I (1849). Scharpf. Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517 (1966).

1Ashwander v. TVA. 297 U.S. 288, 346-48 (1936) (Brandeis. J.. concurring). A. BICKEL. THE LEAST DANGEROUS BRANCH 119-27 (1962); Corwin. Judicial Review in Action, 74 U. PA. L. REV. 639, 642-51 (1926).

for the exercise of power in the polity. Legal rules, by contrast, purport to determine the broad range of societal relationships.® When a constitution is treated as just another form of law, there results an ambiguity of thought that tends to overshadow significant functional differences.

What is properly a subject for inclusion in a constitution? Even the most superficial perusal of the Index Digest of State Constitutions reveals a bewildering array of topics, from Advertising to Zoning, which one would find difficult to characterize as directly related to the exercise of governmental powers. Many of these topics have come to be included as constitutional provisions because the process of constitutional change in the respective states made it relatively easy to clothe what would otherwise be statutory matters with the aura of constitutional dignity. Some state constitutions are clearly too easy to amend;1o elsewhere, the process is so resistant to change that recourse has been sought in the federal courts.11

10

How easy (or how difficult) should it be to amend a constitution? John Locke, in the fashion of his time, proclaimed that the "fundamental laws" he had drafted for the government of Carolina should "be and remain the sacred and unalterable form and rule of government . . . forever.”12 William Penn, by contrast, had observed in the preface to his Frame of Government of Pennsylvania that he did not “find a model in the world, that time, place, and some singular emergences have not necessarily altered" and then proceeded to provide a method of amendment by a qualified majority.13 But Penn acknowledged differences even within a frame of government. The Charter of Privileges which he approved in 1701 declares that

because the Happiness of Mankind depends so much upon
the Enjoying of Liberty of their Consciences. . . I do hereby
solemnly declare, promise and grant, for me, my Heirs and
Assigns. That the first Article of this Charter relating to

*See generally H. Hart. The Concept of Law (1961) and J. Stone, The ProvINCE AND FUNCTION Of Law (1946).

Index Digest of State Constitutions (2d ed. R. Edwards 1959).

10 Prior to 1971. California had amended its constitution 375 times; South Carolina. 398 times; Louisiana. 496 times; and Georgia. 691 times. 19 Book of the States 1972-73, al 21 (1972).

11 See Reynolds v. Sims. 377 U.S. 533 (1964); Baker v. Carr. 369 U.S. 186 (1962).

12 | Z. CHAFEE. Documents on Fundamental Human Rights 146. 153 (paperback ed. 1963); Cahn. An American Contribution, in Supreme Court and Supreme Law 1.6 (E. Cahn ed. 1954).

132 The Federal and State Constitutions. Colonial Charters, and OTHER Organic Laws of the United States 1518-20 (2d ed. B. Poore 1878). quoted by Cahn, supra note 12. at 9-10.

Liberty of Conscience, and every Part and Clause therein. according to the true Intent and Meaning thereof, shall be kept and remain, without an Alteration, inviolably for ever. 14 Liberty of conscience was to be permanently enshrined because it was essential to "the happiness of mankind." Natural law principles were widely accepted in the decades preceding the American Declaration of Independence.15 Since the principles were considered to be immutable (and "inalienable"), the written constitution which embodied them-or to the extent that it embodied them - also acquired the character of immutability.16 Thus the language of the Articles of Confederation ("and Perpetual Union") was entirely in keeping with the spirit of the times in its assumptions that nothing in the Articles would need change, and that certainly nothing should be changed except by unanimous consent of all the member states.17

A number of the framers apparently maintained the view that there was no need to provide machinery for constitutional change. The Virginia Plan had called for the inclusion of an amendment provision in the new instrument of governance, but, when the matter came up in the Committee of the Whole, a majority voted to postpone its consideration.18 When the matter was brought up again, "several members," so James Madison recorded, "did not see the necessity of the resolution at all."19 But George Mason, supported by Edmund Randolph, reminded the delegates that they were in Philadelphia precisely because the Articles of Confederation had been found wanting and it stood to reason that the new document would also have defects. "Amendments, therefore, will be necessary; and it will be better to provide for them in an easy, regular and constitutional way than to trust to chance and violence."20 The argument must have been persuasive: there were no negative votes as the proposition to provide for orderly amend

14 | Z. CHAFEE. supra note 12. at 166.

15 R. POUND. The Formative Period OF AMERICAN LAW. ch. 1 (1938); Cohen. A Critical Sketch of Legal Philosophy in America, in 2 Law: A CENTURY of Progress 266. 269-80 (A. Reppy ed. 1937).

16 Cahn, supra note 12. at 8.

17 NATIONAL Archives and Records Service, General Services AdministRATION. THE FORMATION OF THE Union 37 (1970).

18 A. PRESCOTt. Drafting the Federal CONSTITUTION 685-86 (1941). This is a most convenient rearrangement by topics of Madison's notes. The most comprehensive documentation of the proceedings of the Philadelphia Convention is THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. ed. M. Farrand 1937); Scheips. The Significance and Adoption of Article V of the Constitution, 26 Notre Dame Lawyer 46 (1950). 19 A. PRESCOTT, supra note 18, at 685.

20 Id. at 686.

ment was approved, first in the Committee of the Whole and then by the Convention.21

The debate that followed the report of the Committee on Detail is significant because, if one believes Madison's notes, the Convention never returned to the issue of immutability versus flexibility. The focus was entirely on the role the states should play in future changes of the Constitution. The proviso accepting equal representation in the Senate was added to quiet the fears of the small states, as was the alternative method for proposing amendments by the states through a convention.22 The late Professor Edmond Cahn speculated that

the statesmen of 1787 would be astonished to learn that at
this remote date the Constitution remains in force at all....
Could we consult them today. I think the framers would
inquire why we have not exercised the power of amendment
more frequently and more extensively.23

Indeed, one recent author has described the formal amendment process as "comatose."24 One would assume that the adjective is used in a very loose sense; the definition of “coma” is “a state of deep unconsciousness caused by disease, injury, or poison. "25 While one may validly assert that article V has not been overworked, it is arguable whether this relative inaction can be attributed to factors so deleterious as to be compared to "disease, injury, or poison."

How inactive the amending process has been, can perhaps easiest be shown in tabular form.

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23 Cahn, supra note 12, at 10-11; Bates. Foreword to L. ORFIELD. THE AMENDING OF THE FEDERAL Constitution at vii-viii (1942).

24 Dixon, Article V: The Comatose Article of our Living Constitution, 66 MICH. L. REV. 931 (1968).

25 THE NEW MERRIAM-WEBSTER POCKET DICTIONARY 97 (1971).

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If one accepts the propositions that the first ten amendments are really part of the initial constitution-writing effort and amendments eleven and twelve correct technical deficiencies of the original document,26 then this tabular presentation suggests not that the amendment process is dormant (perhaps a better word than comatose), but that it appears to have shown more life in the last twenty-five years than at any other time in the nation's history.

It must also be asked whether this numerical showing reflects qualitative significance. Have the really important changes been accomplished by the article V amendment process or have they come about by judicial review? It would be idle to argue the point: the landmark decisions of the Supreme Court have done more to adapt the nation to change than has any amendment.27

Is there, then, something in the amending process that saps it of its potential vitality? Why have we not used it more extensively in the past? As a corollary, why, in recent decades, has there been so much interest in the convention method of constitutional amendment?

If one compares the amending process in the United States with provisions for constitutional change in other countries having a federal system of government,28 it is evident that the process in the United States is more complex and potentially more timeconsuming than it is elsewhere. Indeed, ours is the only constitution to involve the legislative bodies of the states constituting the Union in this process.29 In some otherwise ostensibly federal

28 Dixon, supra note 24, at 931-32.

27 A SUTHERLAnd, ConstituTIONALISM IN America 203 (1965); Kauper. The Alternative Amendment Process: Some Observations, 66 MICH. L. Rev. 903, 917 (1968).

28 McWhinney. Amendment of the Constitution, in STUDies in Federalism 790-815 (1954). See also W. Livingston, Federalism and Constitutional Change (1956). 29 McWhinney, supra note 28, at 792.

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