Series: The Promise of an Amendable Constitution in an Uncertain Era

Introduction to series by Teddy Rube, JLPP Senior Online Editor

April 13, 2023

On February 16th, 2023, the Brennan Center for Justice convened scholars, activists, and policymakers at NYU Law for its its first in-person academic symposium in three years, entitled “Constitutional Amendments: Time to Rethink?” The symposium was in part a response to a powerful new book by John Kowal and Wilfred Codrington III, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union. Their book documents how in cyclical moments of social and economic uncertainty, social and political movements have spurred bursts of amendments throughout our history that have fundamentally changed the character of our democracy.

In our own time of polarization, inequality, and debate over the meaning and value of the Constitution—and the courts’ interpretation of it—the question of whether and how to amend the Constitution is more relevant than ever. Symposium panelists vigorously debated the legal and political mechanisms by which the Constitution can (and should) be updated; explored the perils and promises of embracing movements for Constitutional change through amendments (or conventions); and outlined possibilities for a realistic and viable path to updating our national charter, urging attendees to expand their Constitutional imagination.

The Journal of Legislation and Public Policy is excited to be partnering with the Brennan Center to publish a series of responses to the symposium’s content. Speakers who participated in the symposium will reflect and thoughtfully respond to the day’s discussions, grapple with unanswered questions, and react to each other’s contributions.

For this series, we are excited to announce a vibrant group of academics, practitioners, and leaders in the field of constitutional reform:

New posts will be added throughout April. You can find all of the posts in the series below.

Series: The Promise of an Amendable Constitution in an Uncertain Era

Foreword: The Democratic Meaning of the American Constitution
Representative Jamie Raskin
April 13, 2023
Representative Jamie Raskin kicks off our series on amending the Constitution by explaining how our history of Constitution amendments is a “thrilling chronicle” of the struggle to expand our democratic rights, and urges readers to consider the prospect of amending the Constitution not with fear, but with optimism given the amendment process’s potential to realize the Constitution’s democratic vision.

Bring On a New Constitutional Convention!
Sanford Levinson
April 14, 2023
Responding to liberal critics who oppose calls for a new constitutional convention, Professor Sanford Levinson lays out why progressives should embrace the idea of a convention as the only effective way to reimagine our 18th-century charter for 21st-century realities.

The Constructive Unamendability of the U.S. Constitution
Richard Albert
April 15, 2023
Professor Richard Albert explores the three ways a constitution can be unamendable—formally, interpretively, or constructively because of political realities—and explains that while a combination of structure and politics makes the U.S. Constitution impossible to amend today, it does not have to stay that way.

“We the People” Can Fix What’s Broken – If We Try
Caroline Fredrickson
April 16, 2023
In response to those who say that political polarization means the Constitution cannot be amended, Professor Caroline Fredrickson reflects on her experience participating in the National Constitution Center’s “Constitution Drafting Project,” and explains how divergent groups might find common ground through the amendment process.

Article V: A Still Viable Means of Exercising Tempered Popular Sovereignty
John R. Vile
April 17, 2023
Professor John Vile argues that the U.S. Constitution’s amendment process, although cumbersome, makes constitutional development possible while retaining procedural protections and consensus-building mechanisms that help guide the polity to well-considered changes.

Learning from State Constitutional Amendments
Alicia Bannon
April 18, 2023
Alicia Bannon explains how state constitutions’ amendment processes offer less burdensome alternatives for constitutional change, and reflects on how state constitutions should be in conversation with movements to amend the U.S. Constitution.

Move to Amend
Wilfred U. Codrington III
April 20, 2023
Drawing from a cyclical history of amendments to the Constitution, Wilfred U. Codrington III describes the conditions for social-movement driven constitutional change, and explains why we are in one of those moments of change right now.

Constitutional Amendments: Time to Rethink – and to Act
Jeff Clements
April 20, 2023
Jeff Clements argues that the Constitution is not unamendable by demonstrating just how close a bipartisan movement to add a constitutional amendment expanding the power to regulate money in politics has come to triggering the Article V process.

A Skeptic Asks: Is It Possible to Stop Worrying and Love the Article V Convention?
John F. Kowal
April 21, 2023
In response to skeptics and supporters of an Article V convention, John F. Kowal explores the recent history of conservative convention activism, and offers reasons that progressive constitutional reformers should cautiously embrace a constitutional convention movement—and poses questions such a movement would need to answer.

How to Improve the Federal Amendment Process Without Formally Amending the Constitution
Ethan Herenstein
April 24, 2023
While Article V sets high barriers for amending, Ethan Herenstein argues that these barriers are artificially high because of a poorly-reasoned Supreme Court precedent, Hawke v. Smith—and explains how overruling this case could make it easier to amend the Constitution and would let the people play a leading role.