In 1913, the leading American Progressive and Wisconsin U.S. Senator Robert M. “Fighting Bob” La Follette introduced a proposed reform of Article V in Congress. Reflecting widespread discontent with state legislatures, La Follette’s reformed amendment mechanism aimed to democratize Constitutional change. His revision provided:
The Congress, whenever a majority of both Houses shall propose amendments to this Constitution, or on the application of the legislatures of ten states, or on the application of ten states through the vote of the majority of the electors of each, voting upon the question of such application, shall propose amendments to this Constitution, to be submitted for ratification in each of the several states to the electors qualified to vote for the election of Representatives. And the vote shall be taken at the next ensuing election of Representatives in such manner as the Congress may prescribe. And if in a majority of the states a majority of the electors voting thereon approve any proposed amendment, and if a majority of all the electors voting thereon also approve any proposed amendment, it shall be valid to all intents and purposes as part of this Constitution.
Excerpted from The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It, by Russ Feingold and Peter Prindiville. Copyright © 2022. Available from PublicAffairs, an imprint of Hachette Book Group, Inc.
La Follette’s draft was but one of many proposed amid the amendment fervor of the Progressive Era. Other reforms sought to allow voters to propose amendments by petition, require ratification in popularly elected conventions, and lower the threshold for legislative proposal. But these early proposals, including La Follette’s, died in committee. A decade later, the Senate approved a provision providing for ratification by popular referendum but then proceeded to quickly reject it. This about-face, combined with the Supreme Court’s 1920 ruling in Hawke v. Smith throwing out Ohio voters’ rejection of Prohibition in favor of the state legislature’s approval, chilled further attempts at reform.
Over the past century, calls to reform Article V have all but come to a halt. A small cadre of scholars have tended the fire of reform, proposing tweaks here and there. Professor Michael Rappaport at the University of San Diego, for example, has proposed allowing direct state legislative drafting of amendments, allowing legislators to circumvent Congress and the convention mechanism entirely. But none has sought the necessary democratic-minded reforms La Follette and his colleagues proposed in the first decades of the last century. That even discussion of such reform has waned is cause for a moment of serious reflection.
The road to reforming Article V is long and arduous, in no small part because such reform would require an amendment that itself satisfies the strictures of Article V—no easy task. But like the Senate reform debates during the Progressive Era a century ago, a time when most thought such reform was also impossible, the effort must be made.
Such a revision to Article V should be proposed through the Congressional route so as to avoid the runaway concerns posed by ill-formed procedure. To begin this process, we propose the creation of a Congressional bipartisan commission on reforming Article V. Such a commission would gather members of the public, Constitutional scholars, state legislative leaders, and members of Congress to discuss the future of formal Constitutional change. Among its guiding principles, the commission should aim to craft a reform proposal that implements, at the very least, the following:
1. Ratification of proposed amendments by popular referendum, requiring both a majority vote in a sufficient number of states and—as did La Follette’s proposal—a majority vote of all qualified voters nationwide. Provision could also be made, as Article V currently contemplates, that Congress can refer certain proposed amendments to state conventions for ratification. But such conventions should be regulated by Constitutional rules rather than state statute, providing a mechanism for popular delegate selection. Such rules could, for example, provide for legislature-selected delegates approved by the voters in a manner akin to judicial retention vote (e.g., “Shall the delegate represent the people of this state in convention assembled?”). This would allow the people at large an opportunity to express their intention on the specific Constitutional questions by direct proxy.
2. Lower vote thresholds for Congressional Constitutional amendment proposal, combined with other institutional safeguards—such as requiring approval in two separate Congresses, as do nine states, or a time-lock measure, as in Vermont.
3. Constitutional provision of general convention regulations, including rules regarding application counting, topic limitations, and an explicit grant of authority to Congress to set forth general regulations for a convention by statute. This would settle key procedural questions long before a convening, helping guide debate.
4. Requirement that convention applications under Article V must be referred by state legislatures to voters for approval by plebiscite at a general election at which federal officers are elected to be valid.
5. Requirement that Article V convention delegates be nominated by state legislatures or some other method yet receive their delegated authority through popular election, in a manner akin to a judicial retention vote (a yes-no vote) or by a contested race.
6. Explicit Constitutional requirement that a call is binding on a convention and that delegates cannot contravene topic limitations expressed in a call, thus providing Constitutional guarantees against a runaway convention.
Rather than a certain prescription, these proposals are intended to sketch a starting point for debate. Many essential components, such as proposal and ratification thresholds, are purposely undefined. These issues, the focus of considerable academic and political debate, require theoretical introspection, balancing often competing conceptions of popular sovereignty and federalism. They thus deserve more consideration than this short work can provide.
Reclaiming “We the People”
Many across the political spectrum worry about giving the people direct Constitutional power. On the right, it has become fashionable for politicians to make the bold claim that the United States is not a democracy. The United States is a unique form of republic, they claim, one that legitimizes insulating institutions from the people in favor of partisan, anti-majoritarian chokeholds that empower insiders and elites. On the left, many likewise fear the whims of popular power. Like Alexander Hamilton in his own day, they believe that the federal order has been essential to national flourishing and human equality. Frequent, direct popular elaboration of Constitutional law might disrupt Hamilton’s delicate handiwork, many argue, and should be avoided.
Others would contest on theoretical grounds the argument that the Constitution should allow for more frequent and popular reform. It is a good thing that the document has not changed much, they argue. A tradition of limited change has inspired unparalleled stability, allowing the Constitution to endure as the oldest written national fundamental text in the world. A more democratic form of Constitutional politics would be undesirable, creating a troubling new future where the Constitution becomes destabilized by the whims of popular desire. Far from a fluke, its challenging, undemocratic amendment mechanism is a blessing. While the Constitution we have is not perfect—as George Washington himself believed—it is better than what we could have.
Constitutional change should be not so hard as to bind current generations without any reasonable ability for reform, but also not so easy as to empower passion and not reason.
These discussants might point to Alabama as a prime example of the trouble amendment-happy voters can make. With 977 amendments and 388,882 words (almost four times as long as Harper Lee’s To Kill a Mockingbird and just a tad longer than Leo Tolstoy’s Anna Karenina), Alabama’s 1901 constitution is not only the longest in the country; it is the longest in the world. The document provides particularly specific constitutional limitations. In 2020, for example, two separate amendments were approved by voters providing protection in two counties for anyone who kills another while defending church property (each passed with 72 percent of the vote). In 2011, Alabama chief justice Sue Bell Cobb reflected on the trouble the state constitution had made for her work: By “any reasonable test, it is high time for constitutional reform in Alabama.”
California, where the state constitution has been amended 516 times, also poses a thorny counterexample. There, a system for citizen-initiated constitutional amendment proposals crafted during the Progressive Era to guard against special interests has yielded a constant barrage of amendment ballot questions on complicated issues, often, perhaps ironically, funded by special interest groups. Sometimes such a citizen-empowered process can prove decisive in checking the state legislature. As discussed [elsewhere in this book], the contemporary conservative convention movement was itself born in California by Howard Jarvis’s citizen-initiated constitutional limitation on property taxes. But overall, many commentators argue that the California system has proved problematic. One proposal in 2018, funded by venture capitalist Tim Draper, sought to dissolve the state, erecting three new sovereign states in its stead. The state supreme court yanked the question from the ballot on procedural grounds.
Others too might point out the troubling history of voter-supported Constitutional amendments and referendums that explicitly aimed to discriminate against racial, religious, and sexual minorities. The federal Constitution has helped remedy these discriminatory acts, empowering a counter-majoritarian logic that supersedes even direct, popular sanction when the acts of the sovereign People are animated by animus or deny equal protection of the law. Might more popular, democratic Constitutional change infect this laudable component of our Constitutional tradition?
Determining whether Constitutional stability requires a certain degree of stagnancy was controversial even in the country’s earliest days. James Madison argued in Federalist No. 49 that a constitution should be entrenched from change, fixed in time and binding on future generations until rare moments for revision presented themselves. Were constitutions to undergo more frequent revision, he argued, “the PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government . . . . Occasional appeals to the people would be neither a proper nor an effectual provision.”
Thomas Jefferson disagreed, remarking that “the earth belongs in usufruct to the living.” Drawing from actuarial tables, he concluded that constitutions and laws should expire every nineteen to twenty years, the average duration of a generation. “If it is enforced longer, it is an act of force, and not of right.” Each successive generation should be empowered to craft the governing regime anew, he believed.
Perhaps both Madison and Jefferson were right. The ideal constitutional system should chart a course between the Scylla of populist fervor and the Charybdis of ossification, seeking a middle way in which amendment is legitimately feasible but infrequent. Constitutional change should be not so hard as to bind current generations without any reasonable ability for reform, but also not so easy as to empower passion and not reason.
George Washington expressed such a middle path in his farewell address. “The basis of our political systems is the right of the people to make and to alter their Constitutions of government,” Washington declared. Therefore “the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” Such an explicit and authentic act should not be undertaken lightly. But in certain circumstances, it is both proper and good. “If, in the opinion of the people, the distribution or modification of the Constitutional powers be in any particular wrong,” Washington continued, “let it be corrected by an amendment.”
Over the last half century, the country has been drifting from this Washingtonian middle way, venturing into uncharted waters where the Constitution could, over time, lose both its vitality and its claim to legitimacy. Yet Article V can provide sufficient procedure to allow balance between stability and change, should the country choose to allow it.