By John R. Vile
April 17, 2023
*This is the fifth article in our series The Promise of an Amendable Constitution in an Uncertain Era. You can view the rest of the pieces in the series here.*
Politicians of both the right and the left portray themselves as embodiments of popular will as measured by the latest electoral results or political polls. Although elections and political polls are thermometers of current popular sentiments, a more enduring source of American institutions and values is found in the U.S. Constitution, adopted in 1787, and subsequently supplemented with 27 amendments.
The delegates to the Constitutional Convention of 1787 ditched the Articles of Confederation for an alternative written document that would go beyond the system of British customs and usages, many of which were unwritten, in creating new institutions, providing checks and balances, and spelling out the rights of the American people. The Framers believed they were empowering future generations to continue their work, while binding them to work through institutions and processes that would guard their rights. After the delegates signed the document, they sent it to the states for “we the people” to ratify via conventions.
Realizing that the document they formulated was imperfect and would require change with time and circumstances, the Framers wisely drafted a formal amending process, embodied in Article V of the Constitution. They viewed peaceful constitutional change as an alternative to the violent revolution in which they had engaged. Opposing the British idea of parliamentary sovereignty, by which the constitution could be changed through ordinary legislative means, the Framers permitted both houses of Congress to propose amendments by a two-thirds majority, which required ratification by three-fourths of the states. Alternatively, a two-thirds majority of the states can petition Congress to call a convention to propose amendments, which would again require the consent (at congressional specification) of three-fourths of the state legislatures or by votes of special conventions.
When “We the People” desire to change the written Constitution, they do so through Article V, which thus instantiates popular sovereignty. Although numerous judicial decisions, executive orders, and congressional usages have affected the working of the document, the people have the right, acting through Article V, to alter such decisions. Unlike most elections that operate through simple majority rule, Article V requires supermajorities to engage in highly deliberative processes. By design, the mechanism is not as responsive to temporary changes in sentiment as an election or as the initiative, the referendum, and the recall, but, as a consequence, the Constitution retains a stability that other such documents often lack.
In proposing the Bill of Rights, the very first Congress decided to append amendments to the end of the document rather than integrating them into the 1787 text. Although James Madison made a cogent argument for the former approach, Roger Sherman’s advocacy of the latter has made it easier to plot constitutional history. Each amendment or set of amendments marks a specific date when supermajorities decided on constitutional alterations. Much as the stars on the U.S. flag record the addition of new states, amendments mark important political milestones. They are similar to the rings on a tree that mark new growth. They might be further likened to new stanzas of the national song, or new rooms of the constitutional house or temple. The first ten amendments reaffirmed the Framers’ commitment to fundamental rights. The post-bellum amendments signaled the inclusion of African Americans in the polity; the Nineteenth Amendment marked the inclusion of women into the political process; the Twenty-Sixth Amendment extended similar recognition to 18- to 21-year-olds.
In Federalist #43, Madison argued that Article V guarded equally “against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” The quick ratification of the first ten amendments (the Bill of Rights) in 1791 and the adoption of the Eleventh and Twelfth Amendments in 1795 and 1804 provided further confirmation of such faith.
It would be another 60 years before the nation began adopting the Thirteenth through Fifteenth Amendments in relatively quick succession from 1865 to 1870, followed by another period of formal amending drought before the adoption of the Sixteenth through Nineteenth amendments from 1913 through 1919 during the Progressive Era. The next major round of amendments, the Twenty-Third through the Twenty-Sixth , occurred from 1961 through 1971, with the Twenty-Seventh amendment—originally proposed as part of the Bill of Rights—belatedly ratified in 1992.
In an era accustomed to instant gratification, the relatively few number of amendments and the long gaps between clusters of significant amendments present questions as to whether the amending process remains functional. Moreover, the process of electing presidents and senators who appoint and confirm judges and justices to interpret the Constitution often appears to be an easier path toward constitutional change than formal amendments. There is reason to believe, however, that the amending process remains viable, and that it accurately reflects a variety of positive metaphors and analogies that its proponents have used throughout the years to describe it.
At a time when the U.S. Constitution was often likened to a machine, Justice Joseph Story referred to the amending process as a “safety valve.” Critics, especially those who were used to English customs and usages, were inclined to regard the U.S. Constitution as too “rigid” compared to its more “flexible” unwritten British counterpart. Some even worried that the Constitution had become an “iron cage,” or that the safety-value had been clogged and the machine would explode.
Although the amending process did not stop a Civil War that tested two rival theories of the document, it incorporated its results, and ended slavery and began recognition of African American rights. So too, later amendments evidenced continuing democratic progress. New amendments seemed to confirm Woodrow Wilson’s idea that politics owed less to Isaac Newton’s system of checks and balances than to Charles Darwin’s idea of progress. Organic analogies began to prevail over earlier mechanistic analogies. Thomas Jefferson, who had favored adopting a new constitution every 19 years, had remarked that it was foolish to expect a man to continue wearing the clothes from his youth. So too, amendments accommodated national growth and expansion. Some amendments have been truly transformative, while others have evoked modest images of constitutional patching, tinkering, or mending.
It remains common to identify the Constitution and its amendments as an unfolding commitment to democracy, to equality, to human rights, and to due process. Like a human body, which continually replenishes itself while retaining and perfecting its identity, or a ship that retains its name as its various parts are repaired and replaced, it is common to understand the Constitution as a whole that is greater than the sum of its parts. Americans still venerate the Constitution even though a third of its content has been added since 1787, just as they venerate a flag that now displays fifty stars rather than thirteen.
Consistent with the idea that Article V embodies the sovereign power of the people, some have referred to the amending process as a sleeping giant. Although all current amendments have been proposed by Congress, and twenty-six of twenty-seven (the Twenty-First excluded) have been ratified by state legislatures rather than state conventions, much discussion of the amending process centers on the fear of a “runaway” Article V convention. In reality, calls for such a convention are far more likely to stimulate Congress to take preemptive action (as it did in proposing the Seventeenth Amendment, which provided for direct election of U.S. Senators, or as it did in adopting child labor laws), by initiating its own amendments than to result in a runaway convention. Moreover, Congress can mitigate considerable uncertainty by adopting legislation guiding any Article V convention.
Discouraged by the long period since the last constitutional amendment was adopted, and frightened by the prospect that the people might exercise their sovereignty in highly improbable ways, too many Americans lamely rail against the latest Supreme Court decisions with which they disagree or resign themselves to perceived flaws in the document. They can also press for “a more perfect Union” by advocating constitutional amendments.
In Federalist #1, Alexander Hamilton lauded a constitution enacted through “reflection and choice.” In a similar fashion, the sleeping giant of the amending process is not some foreign monarch or adversary but consists of supermajorities of elected representatives with similar power to perfect the document. Edward S. Corwin observed that the Constitution serves both as an instrument and as a symbol. Article V provides appropriate mechanisms for the consideration and winnowing of a variety of proposed amendments before settling on those with the most promise. Through this process, the nation can further the noblest goals, and patch the most obvious flaws, of the present document while retaining the Constitution not only as an effective instrument for further self-government but also as a living symbol of the nation’s highest aspirations.
John R. Vile is a Professor of Political Science and Dean of the Honors College at Middle Tennessee State University. He is the author of numerous books and articles on the U.S. Constitution, the amending process, and related topics including the Encyclopedia of Constitutional Amendments, Proposed Amendments and Amending Issues (soon to be in its 5th edition); Re-Framers; Conventional Wisdom; The Constitutional Convention of 1787; A Companion to the United States Constitution and Its Amendments; and Essential Supreme Court Decisions.
Suggested Citation: John R. Vile, Article V: A Still Viable Means of Exercising Tempered Popular Sovereignty, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).