Article Five Explained: How the Constitution Can Be Amended

The discussion moves to the concluding articles of the original Constitution: Articles Five, Six, and Seven. These articles are relatively short and are unified by the theme of constitutional supremacy, explaining how and why the Constitution takes precedence over other laws.

Article Five: The Amendment Process

Article Five outlines the mechanisms for amending the Constitution, presenting four distinct pathways: two for proposing amendments and two for ratifying them.

Proposing Amendments

1. Congressional Proposal: An amendment can be proposed by a two-thirds vote in both the House of Representatives and the Senate. This method has been used for all amendments to date. The President has no role in this process, distinguishing it from ordinary legislation.
2. Convention of States: If two-thirds of the state legislatures request it, Congress is obligated to call a convention to propose amendments. This method has never been utilized.

Ratifying Amendments

1. State Legislatures: Three-quarters of the state legislatures must ratify a proposed amendment. All amendments except one (the 21st Amendment, repealing Prohibition) have been ratified this way.
2. State Conventions: Congress can specify that special state conventions, elected for the purpose, ratify an amendment. This method was used only once for the 21st Amendment.

In both ratification methods, three-quarters of the states must agree, with each state holding equal weight regardless of population.

Significance of Article Five

Article Five is arguably the most fundamental part of the Constitution, as it establishes the rules by which all other parts of the document can be changed. It operates on a higher, more fundamental level than other constitutional provisions.

Historically, Article Five stands out when compared to:

• Ancient Greek Democracies: Often lacked robust mechanisms for constitutional amendment.
• British Constitution: Unwritten and without express amendment provisions, relying on parliamentary sovereignty, which could allow ordinary legislation to alter fundamental rules.
• Articles of Confederation: Practically unamendable, requiring unanimous consent from all 13 states, which proved impossible (e.g., Rhode Island's refusal to attend the Philadelphia Convention). This unamendability was a major flaw that necessitated the creation of the new Constitution.

The framers of the Constitution presented its amendability as a key selling point to critics who had objections (e.g., lack of a Bill of Rights). They argued that the Constitution was "fixable" and could be improved through amendments once ratified.

Comparison with State Constitutions

Many early state constitutions either lacked amendment provisions, allowed amendment by ordinary legislative statute (undermining the idea of fundamental law), or restricted amendments to specific dates or legislative monopolies. The U.S. Constitution's Article Five, in contrast, offered a more flexible yet robust system.

Flaws and Criticisms of Article Five

While impressive for its time, Article Five is not without flaws:

• Lack of Detail for Proposing Conventions: It doesn't specify how a proposing convention (never used) would operate, including apportionment (e.g., one state, one vote vs. proportional representation), voting rules (simple majority, two-thirds), or how delegates would be chosen.
• High Bar for Amendment: Critics argue that the two-thirds and three-quarters supermajorities set the bar too high, making amendments difficult. However, the early adoption of 12 amendments (including the Bill of Rights) demonstrates its workability. The high bar has also been credited with filtering out many "bad" amendment proposals, ensuring that most successful amendments have improved the system (e.g., Reconstruction Amendments, Progressive Era amendments, 1960s amendments).

The Question of Extra-Constitutional Amendment

A significant theoretical question is whether the people could adopt an entirely new constitution outside the Article Five process, similar to how the current Constitution was adopted outside the Articles of Confederation. This remains a theoretical, rather than practical, concern today.

Specific Provisos in Article Five

Article Five includes two specific provisos:

1. Slave Importation Clause (now moot): It stipulated that the clause allowing the importation of slaves until 1808 could not be amended before that date. This is now irrelevant as slavery itself has been abolished.
2. Equal State Representation in the Senate: No state can be deprived of its equal suffrage in the Senate without its own consent. This means that any amendment seeking to alter the equal representation of states in the Senate would theoretically require the consent of every single state.

This proviso, added late in the Constitutional Convention, was not as thoroughly debated as the Great Compromise (which established the Senate's structure). While it appears to protect small states, an argument can be made that it only prevents direct modification of the Senate's apportionment rules. It might be possible, through an ordinary Article Five amendment, to create a new legislative body with powers similar to the Senate, thereby circumventing the proviso without directly altering the existing Senate's structure.

Even without such a maneuver, small states are significantly protected by the ordinary Article Five rules: * Any amendment must pass the Senate by a two-thirds vote, where each state has equal representation. * Three-quarters of the states must ratify an amendment, meaning a small number of states can block a proposal.

The discussion concludes with Article Five, setting the stage for the next lecture on Articles Six and Seven.