1029
PANEL VI: WHAT ARE WE TO DO
ABOUT DYSFUNCTION?
CONSTITUTIONAL DISUSE OR DESUETUDE:
THE CASE OF ARTICLE V
RICHARD ALBERT
∗
I
NTRODUCTION ............................................................................................. 1030
I. THE DESIGN AND DISUSE OF ARTICLE V ........................................... 1032
A. The Design of Article V ............................................................. 1033
1. Formal Amendment Then and Now .................................... 1034
2. Formal Unamendability ....................................................... 1037
3. Constructive Unamendability .............................................. 1042
B. The Disuse of Article V .............................................................. 1045
1. The Difficulty of Article V .................................................. 1046
2. The Consequences of Formal Amendment Difficulty ......... 1051
3. The Parochial Uses of Article V .......................................... 1054
II. THE METHODS OF INFORMAL AMENDMENT ...................................... 1060
A. Formal and Informal Amendment ............................................. 1060
1. The Forms of Informal Amendment .................................... 1062
2. Conventional Forms of Informal Amendment .................... 1063
3. Unconventional Forms of Informal Amendment ................ 1067
B. Informal Amendment by Constitutional Desuetude ................... 1071
1. The Concept of Constitutional Desuetude ........................... 1072
2. A Framework for Constitutional Desuetude ........................ 1074
3. The Desuetude of Article V? ............................................... 1077
CONCLUSION ................................................................................................. 1079
Article V of the United States Constitution is in decline and disuse. Studies
of comparative formal amendment difficulty, the decelerating pace of Article V
amendments, and the relative infrequency of Article V amendments in the
∗
Assistant Professor, Boston College Law School; Yale University (J.D., B.A.); Oxford
University (B.C.L.); Harvard University (LL.M.). Email: richard.a[email protected]. I am
grateful to Jim Fleming, Hugh Baxter, and Jay Wexler for the opportunity to present this
Article at a symposium titled “America’s Political Dysfunction: Constitutional Connections,
Causes, and Cures,” where I received helpful comments from participants and attendees on
an earlier version of this Article and a related article on the theory of constitutional
desuetude. I thank the editors of the Boston University Law Review, particularly Articles
Editor Michelle Pascucci, for their assistance in preparing this Article for publication.
1030 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
modern era – the most recent having been ratified roughly one generation ago,
and the next-most recent a generation earlier – confirm the impression that
Article V’s federalist supermajority requirements make the United States
Constitution one of the world’s most difficult to amend formally. The
consequence of formal amendment difficulty has been to reroute political
actors pursuing constitutional change from formal to informal amendment.
The attendant decline and disuse of Article V as a vehicle for constitutional
amendment suggests that Article V may itself have changed informally. In this
Article, I explore whether Article V has been informally amended by
constitutional desuetude.
I
NTRODUCTION
It was once considered “settled” that valid constitutional change in the
United States occurs exclusively through Article V.
1
This formalist
interpretation of the United States Constitution insisted that a constitutional
amendment was possible only with the federalist supermajorities entrenched in
Article V, which authorizes four general formal amendment procedures.
2
Today, however, formalism has given way to a functionalist interpretation
recognizing that the Constitution may change informally without a textual
amendment through Article V.
3
Scholars have shown that “non-Article V
1
See Harry Pratt Judson, The Essentials of a Written Constitution, in IV THE DECENNIAL
PUBLICATIONS 313, 320 (1903). Bruce Ackerman argues that the decisive break with the
conventional process of formal amendment under Article V occurred in the 1860s when
political actors used unconventional strategies to amend the Constitution. Bruce A.
Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Y
ALE L.J. 1013, 1065-70
(1984). By 1950, a scholar could observe casually that “more constitutional change has
resulted from judicial and administrative interpretation, statutory elaboration, and custom
and usage than from formal constitutional amendment.” Paul J. Scheips, The Significance
and Adoption of Article V of the Constitution, 26
NOTRE DAME L. REV. 46, 66 (1950).
2
Article V provides:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall
propose Amendments to this Constitution, or, on the Application of the Legislatures of
two thirds of the several States, shall call a Convention for proposing Amendments,
which, in either Case, shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of the several States, or
by Conventions in three fourths thereof, as the one or the other Mode of Ratification
may be proposed by the Congress: Provided that no Amendment which may be made
prior to the Year One thousand eight hundred and eight shall in any Manner affect the
first and fourth Clauses in the Ninth Section of the first Article; and that no State,
without its Consent, shall be deprived of its equal Suffrage in the Senate.
U.S.
CONST. art. V.
3
See Clifton McCleskey, Along the Midway: Some Thoughts on Democratic
Constitution-Amending, 66
MICH. L. REV. 1001, 1012 (1968) (“Every schoolboy knows that
our Constitution is subject to change through informal processes as well as through formal
amendment.”). Yet whether a constitutional norm becomes entrenched formally or
functionally, its effectiveness in regulating behavior “depends on the success of an
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1031
means” may amend the Constitution informally with the same binding effect as
a formal constitutional amendment.
4
For example, informal amendments may
result from “constitutional moments” that spring from institutional conflict and
dialogue,
5
“super-statutes” upon which we confer quasi-constitutional status,
6
“constitutional workarounds,”
7
or “constitutional showdowns”
8
that amend the
Constitution without altering its text, new constitutional constructions,
9
or
authoritative legislative, executive, or judicial constitutional interpretations.
10
Informal amendment may also occur as a result of constitutional desuetude,
as I have recently theorized.
11
Constitutional desuetude occurs when an
entrenched constitutional provision loses its binding quality upon political
actors as a result of its conscious sustained disuse and public repudiation by
preceding political actors.
12
The phenomenon of constitutional desuetude is
limited to constitutional democracies with written constitutions, and it both
resembles and differs from other forms of informal amendment.
13
Constitutional desuetude is similar because it changes constitutional meaning
without altering the constitutional text. Yet it is different because it renders the
constitutional text politically invalid though it remains entrenched and
unchanged.
14
As I have illustrated with reference to a seven-part framework,
constitutional desuetude is distinguishable from other forms of constitutional
underlying sociopolitical commitment to play by the constitutional rules.” Daryl J.
Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124
HARV. L. REV. 657, 698 (2011).
4
Stephen M. Griffin, Constitutionalism in the United States: From Theory to Politics, in
RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL
AMENDMENT 37, 54 (Sanford Levinson ed., 1995). But see ROBERT JUSTIN LIPKIN,
CONSTITUTIONAL REVOLUTIONS 59-60 (2000) (challenging the view that informal
amendments are functionally equivalent to formal amendments).
5
2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 15-26, 409 (1998).
6
William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1230-31
(2001).
7
Mark Tushnet, Constitutional Workarounds, 87 TEX. L. REV. 1499, 1510 (2009).
8
ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE
MADISONIAN REPUBLIC 67 (2010).
9
KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND
CONSTITUTIONAL MEANING 3-17 (1999) (observing that constitutional construction seeks “to
elaborate a meaning somehow already present in the text, making constitutional meaning
more explicit without altering the terms of the text itself”).
10
Walter F. Murphy, Constitutions, Constitutionalism, and Democracy, in
CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 3, 13
(Douglas Greenberg et al. eds., 1993).
11
Richard Albert, Constitutional Amendment by Constitutional Desuetude, 62 AM. J.
COMP. L. (forthcoming 2014) (on file with author).
12
Id.
13
Id.
14
Id.
1032 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
obsolescence, namely atrophy, dormancy, supersession, judicial interpretation,
and amendment by convention.
15
In this article, I apply this seven-part framework for constitutional desuetude
to the United States Constitution. I suggest that Article V – which entrenches
the rules for formally amending the Constitution – may itself be at risk of
informal amendment by constitutional desuetude. I do not conclude that Article
V has in fact been informally amended by constitutional desuetude, but I
explore the circumstances under which such an amendment could conceivably
occur. I also suggest that we should distinguish between successful and
unsuccessful uses of Article V; the former are indeed rare and in decline, but
the latter now occur more frequently than ever before.
I begin, in Part I, by evaluating the design and disuse of Article V. I analyze
the architecture of Article V and explain how it structures formal amendment. I
also show why the conventional interpretation of the Equal Suffrage Clause –
that it is formally unamendable – appears to be mistaken. Part I also highlights
the declining successful uses of Article V but notes that Article V has indeed
remained in use, albeit mostly unsuccessfully, since the founding. I nonetheless
suggest that Article V is no longer used nor perceived as a vehicle for
constitutional change. In Part II, I explore how Article V may have reached its
current state of disuse, inquiring whether Article V has been informally
amended by any of the notable methods of informal amendment in the United
States. I subsequently apply the seven-part framework for constitutional
desuetude to Article V and ultimately conclude that Article V has not yet been,
though one day could become, informally amended by constitutional
desuetude. Part III offers observations about constitutional change in the
United States and suggests lines of future inquiry.
I. T
HE DESIGN AND DISUSE OF ARTICLE V
There have been thousands of Article V proposals since the coming into
force of the Constitution in 1789, yet only thirty-three have met its
congressional supermajority requirements.
16
Of those, only twenty-seven have
been ratified by the state supermajorities needed to entrench a formal
amendment textually.
17
The Constitution’s last formal amendment was ratified
over twenty years ago in 1992,
18
200 years after James Madison introduced it
19
15
Id.
16
Kathleen M. Sullivan, Constitutional Constancy: Why Congress Should Cure Itself of
Amendment Fever, 17 CARDOZO L. REV. 691, 692 (1996).
17
Id.
18
See U.S. CONST. amend. XXVII (“No law, varying the compensation for the services
of the Senators and Representatives, shall take effect, until an election of Representatives
shall have intervened.”).
19
1 ANNALS OF CONG. 434 (1789) (Joseph Gales ed., 1834) (statement of Rep. Madison)
(“But no law varying the compensation last ascertained shall operate before the next ensuing
election of Representatives.”).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1033
and Congress approved it.
20
The next most serious recent Article V effort was
the Equal Rights Amendment, proposed by Congress in 1972
21
but ultimately
rejected by the states prior to its expiration date in 1982.
22
At the time, Stephen
Carter observed that “[i]n the 1980’s, Article V is very nearly a dead letter.”
23
The defeat of the Equal Rights Amendment was interpreted as “a signal that
Article V will no longer play a meaningful role in the country’s constitutional
development.”
24
Transformative social changes were seen as possible, and
perhaps more viable, if pursued instead through channels of informal
amendment like judicial interpretation.
25
A. The Design of Article V
Written constitutions commonly entrench one or more formal amendment
procedures to modify their text.
26
For example, the German Basic Law
entrenches a rule that its text may be amended “only by a law expressly
20
S. JOURNAL, 1st Cong., 1st Sess. 88 (1789).
21
H.R.J. Res. 208, 92d Cong. (1972) (“Section 1. Equality of rights under the law shall
not be denied or abridged by the United States or by any State on account of sex. Sec. 2. The
Congress shall have the power to enforce, by appropriate legislation, the provisions of this
article. Sec. 3. This amendment shall take effect two years after the date of ratification.”
(internal quotation marks omitted)).
22
H.R.J. Res. 638, 95th Cong. (1978). The Equal Rights Amendment had originally been
subject to a seven-year expiration date, but Congress later extended the ratification deadline
by three years. The procedural steps to extending the Equal Rights Amendment’s
ratification deadline have been summarized and analyzed. See Orrin G. Hatch, The Equal
Rights Amendment Extension: A Critical Analysis, 2
HARV. J.L. & PUB. POL’Y 19, 19-22
(1979). Two other noteworthy Article V amendment efforts are the balanced budget
amendments proposed first in 1981 and next in 1995. See H.R.J. Res. 1, 104th Cong. (1995)
(adopted by the House of Representatives but rejected by the Senate); S.J. Res. 58, 97th
Cong. (1981) (adopted by the Senate but not in the House of Representatives).
23
Stephen L. Carter, Constitutional Adjudication and the Indeterminate Text: A
Preliminary Defense of an Imperfect Muddle, 94 YALE L.J. 821, 842 (1985).
24
Bruce Ackerman, Interpreting the Women’s Movement, 94 CALIF. L. REV. 1421, 1436
(2006); see also Serena Mayeri, A New E.R.A. or a New Era? Amendment Advocacy and the
Reconstitution of Feminism, 103
NW. U. L. REV. 1223, 1291 (2009) (“After the ERA’s
defeat, conventional wisdom held that Article V’s prescribed process was no longer a viable
path to constitutional change, except perhaps for very specific, technical alterations.”).
25
See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME
COURT 306-08 (illustrated reprt. 2005). Justice William Brennan favored issuing an opinion
that “would have the effect of enacting the Equal Rights Amendment, which had already
passed Congress and was pending before the state legislatures. But Brennan was
accustomed to having the Court out in front, leading any civil rights movement. There was
no reason to wait several years for the states to ratify the amendment.” Id.
26
Bjørn Erik Rasch & Roger D. Congleton, Amendment Procedures and Constitutional
Stability, in D
EMOCRATIC CONSTITUTIONAL DESIGN AND PUBLIC POLICY 319, 325 (Roger D.
Congleton & Birgitta Swedenborg eds., 2006) (“Almost all constitutions specify procedures
for rewriting or replacing the constitutional text . . . .”).
1034 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
amending or supplementing its text,”
27
and that an amendment may be made
only with supermajority approval in both houses of the national legislature.
28
The Basic Law was recently amended in 2009 pursuant to this formal
amendment rule when political actors passed a balanced-budget amendment
known as the “debt brake” to manage governmental borrowing and structural
government deficits.
29
This amendment is properly described as formal insofar
as it was made pursuant to entrenched textual amendment rules and ultimately
inscribed within the Basic Law as a new writing.
30
1. Formal Amendment Then and Now
The very idea of formal amendment has American roots: “Although many of
our political and legal institutions take their origin from English and
occasionally Continental conceptions, such is not the case in the fundamental
matter of altering the constitution,” writes Lester Orfield, emphasizing that
“[t]he idea of amending the organic instrument of a state is peculiarly
American.”
31
One of the earliest formal amendment rules in the modern era
appears in the Articles of Confederation, the predecessor to the United States
Constitution.
32
Adopted in 1777, the Articles of Confederation entrenched an
onerous formal amendment rule requiring both approval from the unicameral
national legislature and unanimity among the thirteen states.
33
Formal
amendment under this unanimity rule was a “virtual impossibility.”
34
The
27
GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC
LAW], May 23, 1949, BGBI. I, art. 79(1) (Ger.).
28
Id. art. 79(2) (“Any such law shall be carried by two thirds of the Members of the
Bundestag and two thirds of the votes of the Bundesrat.”).
29
See Achim Truger & Henner Will, The German “Debt Brake”: A Shining Example for
European Fiscal Policy?, in DEBATES AND POLICIES: THE EURO AREA IN CRISIS/LA ZONE
EURO EN CRISE 155, 158-59 (Catherine Mathieu & Henri Sterdyniak eds., 2013).
30
See GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG]
[BASIC LAW] arts. 109-110, 104-105, 115, 129-130, 143d.
31
LESTER BERNHARDT ORFIELD, THE AMENDING OF THE FEDERAL CONSTITUTION 1
(1942).
32
Scholars debate whether the Articles of Confederation was a constitution or a treaty.
Compare SANFORD LEVINSON, CONSTITUTIONAL FAITH 130 (1988) (referring to the Articles
as “in effect, our first national constitution”), with Akhil Reed Amar, Of Sovereignty and
Federalism, 96
YALE L.J. 1425, 1446 (1987) (distinguishing the Articles as a confederacy or
league of sovereign states). I refer to the Articles of Confederation only to illustrate an early
example of a formal amendment rule.
33
ARTICLES OF CONFEDERATION of 1781, art. XIII (“And the articles of this
confederation shall be inviolably observed by every State, and the Union shall be perpetual;
nor shall any alteration at any time hereafter be made in any of them; unless such alteration
be agreed to in a Congress of the United States, and be afterward confirmed by the
legislatures of every State.”).
34
William A. Platz, Article Five of the Federal Constitution, 3 GEO. WASH. L. REV. 17,
18 (1934).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1035
Philadelphia Convention predictably rejected a similar unanimity rule for the
United States Constitution.
35
Rather than amending the Articles of
Confederation, the Philadelphia Convention chose to reconstitute the United
States with a new founding instrument of government in light of the relative
ease of adopting a new constitution compared to ratifying an amendment to the
Articles.
36
What resulted was a less demanding formal amendment rule in
Article V, designed as a response to the difficulty of formally amending the
Articles of Confederation.
37
The United States Constitution today entrenches very challenging formal
amendment rules in Article V.
38
Under Article V, the Constitution may be
amended in the following ways: (1) two-thirds of both Houses of Congress
may propose an amendment, and three-quarters of the states must ratify it in
either a legislative vote or a convention, the choice being up to Congress; or
(2) two-thirds of the states may call a convention to propose amendments, and
three-quarters of the states must ratify it either in a legislative vote or a
convention, and again the choice is up to Congress.
39
These procedures – two
mechanisms to propose amendments and two to ratify them – generate four
methods of formal amendment.
40
Any formal amendment proposal under
Article V must clear these procedural hurdles in order to become inscribed in
the constitutional text. The simplicity and clarity of Article V’s enabling clause
allow us to identify when the Constitution has been formally amended: when
the two-thirds and three-quarters majorities collaborate to approve and ratify
an amendment proposal, that proposal becomes “[v]alid to all Intents and
Purposes, as part of this Constitution.”
41
As David Dow has written, “Article V speaks simply.”
42
Article V tells us
that an amendment becomes valid only if it adheres to the procedures detailed
35
Douglas G. Smith, An Analysis of Two Federal Structures: The Articles of
Confederation and the Constitution, 34 SAN DIEGO L. REV. 249, 299-300 & n.159 (1997). At
the time of the Constitution’s adoption, eight state constitutions provided for their own
amendment. William Howard Taft, Can Ratification of an Amendment to the Constitution
Be Made to Depend on a Referendum?, 29
YALE L.J. 821, 824 (1920).
36
KEITH L. DOUGHERTY, COLLECTIVE ACTION UNDER THE ARTICLES OF CONFEDERATION
130-31 (2001).
37
Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic
Analysis of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111, 112-13 (1993)
(“In fact, the Founders conceived Article V as a remedy to the overly difficult amendment
process under the Articles of Confederation.”).
38
Article V is less demanding only insofar as it does not require unanimity. The United
States Constitution nonetheless remains one of the world’s most difficult constitutions to
amend. D
ONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN 171 (2006).
39
U.S. CONST. art. V.
40
See Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment
Outside Article V, 94
COLUM. L. REV. 457, 459 (1994).
41
Id.
42
David R. Dow, When Words Mean What We Believe They Say: The Case of Article V,
1036 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
in the text of Article V. Those rigid procedures are defined with a level of
specificity that distinguishes Article V’s language from some of the more
open-textured provisions in other parts of the United States Constitution.
43
Yet
there is a deeper purpose beneath the architecture of Article V. The Framers
brandished Article V to make the case that the Constitution was worth
ratifying, even in the face of criticisms that the Constitution as written was not
perfect. “‘Why,’ say they, ‘should we adopt an imperfect thing?’,” questioned
the critics.
44
In response to those objections, the Framers recalled some of the
objectives they had set for the United States Constitution: constitutional
flexibility and constitutional endurance. George Mason referenced both
constitutional flexibility and constitutional endurance at the Philadelphia
Convention, cautioning that since the constitutional text the Framers had
devised would not be perfect – defects would “probably appear in the new
System,”
45
according to Alexander Hamilton – the Framers should create a
process that would allow Americans to fix those imperfections.
46
One of the Framers’ objectives was to ensure the document’s flexibility and
its receptiveness to change. They recognized that they could not conceive of all
contingencies that might arise in the life of the Republic; future contingencies
were, in the Framers’ words, “illimitable in their nature.”
47
Elbridge Gerry
insisted that “accommodation is absolutely necessary,” adding that “defects
may be amended by a future convention.”
48
But the Framers did not intend
flexibility to correspond to extreme ease of amendment. They instead targeted
the compromise position between a statutory constitution, which can be revised
with ordinary majorities like a statute, and an absolutely entrenched
constitution, which cannot be amended: “The mode preferred by the
convention seems to be stamped with every mark of propriety. It guards
equally against that extreme facility which would render the Constitution too
mutable; and that extreme difficulty, which might perpetuate its discovered
76 IOWA L. REV. 1, 29 (1990).
43
See, e.g., U.S. CONST. amend. XIV, § 1 (“No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.”); id. amend. II (“A well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed.”); id. amend. I (“Congress shall make no law respecting an
establishment of religion . . . .”); id. art. I, § 8, cl. 3 (“The Congress shall have Power . . .
[t]o regulate Commerce with foreign Nations, and among the several States . . . .”).
44
THE FEDERALIST NO. 85, at 522 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
45
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 558 (Max Farrand rev. ed.,
1911).
46
1 id. at 202-03 (“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.”).
47
THE FEDERALIST NO. 34, supra note 44, at 203 (Alexander Hamilton).
48
1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 45, at 519.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1037
faults.”
49
The evolution of the United States Constitution has proven itself to
be flexible without the relative ease of statutory changeability.
Second, the flexibility of the Constitution also serves an instrumental
purpose: to secure its endurance. To a certain point, the more malleable the
document, the more likely its survival and continued appeal as the nation’s
compass in constitutional law and politics; in contrast, the more rigid the
document, the more likely it would invite its own defiance as an antiquated
relic unable to help resolve social and political conflict.
50
Worse yet, rigidity
would risk descending the nation into violence and instability. The threat of
violence continued to worry George Washington as he left the presidency. But
he saw in Article V the promise for channeling popular sentiment into a
structured, rather than unruly, response:
If in the opinion of the People, the distribution or modification of the
Constitutional powers be in any particular wrong, let it be corrected by an
amendment in the way which the Constitution designates.—But let there
be no change by usurpation; for though this, in one instance, may be the
instrument of good, it is the [customary] weapon by which free
governments are destroyed.
51
The design of Article V invites citizens to act through their legislators to
request a new constitutional convention, authorizes state legislators to petition
Congress for changes to the constitutional framework, and enables Congress
itself to propose amendments to the Constitution.
52
2. Formal Unamendability
Modern constitutions often establish at least two categories of constitutional
provisions: the first are amendable pursuant to the formal amendment
procedures written in the text of the constitution; the second are absolutely
unamendable and therefore impervious to the formal amendment procedures
that are otherwise necessary and sufficient to amend the constitutional
provisions in the first category. Modern constitutions entrench a variety of
49
THE FEDERALIST NO. 43, supra note 44, at 275 (James Madison).
50
See ZACHARY ELKINS ET AL., THE ENDURANCE OF NATIONAL CONSTITUTIONS 82 (2009)
(observing that “below some threshold, flexibility should clearly enhance constitutional
endurance,” and that “[f]lexibility can ameliorate pressures for change, forestalling more
radical overthrow of constitutional documents”).
51
WASHINGTON IRVING, THE LIFE AND TIMES OF WASHINGTON 780 (New York, G. P.
Putnam & Sons 1876) (alteration in original) (footnotes omitted) (quoting President George
Washington, Farewell Address (Sept. 19, 1796)).
52
U.S. CONST. art. V. The Constitution’s majoritarian presuppositions may confer upon
Americans an unwritten power of simple majoritarian constitutional amendment. See Akhil
Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U.
CHI. L. REV. 1043, 1060 (1988) (“The principles of popular sovereignty underlying our
Constitution require that a deliberate majority of the People must be able to amend the
Constitution if they so desire.”).
1038 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
constitutional amendment provisions against formal amendment, including
rights and liberties;
53
social, cultural, political, or religious principles;
54
national territory;
55
political procedures;
56
and institutional structures or
arrangements.
57
Their constitutional designers chose to insulate them against
the possibility of formal amendment.
Though a written constitution may entrench formally unamendable
provisions, there is reason to doubt whether a written constitution can ever
truly be unamendable. Constitutional designers and constitutional reformers
might approach the question differently. For constitutional reformers, an
53
See, e.g., CONSTITUTION OF THE PEOPLE’S DEMOCRATIC REPUBLIC OF ALGERIA 1989, tit.
IV, art. 178 (amended by the constitutional revision of 1996) (“No constitutional revision
may infringe on . . . the fundamental freedoms, on the rights of man and of the citizen.”);
USTAV BOSNE I HERCEGOVINE [CONSTITUTION] art. X(2) (1995) (Bosn. & Herz.)
(establishing that no law may abridge the freedoms enumerated in Article II); C
ONSTITUIÇÃO
FEDERAL [C.F.] [CONSTITUTION] art. 60 (Braz.) (prohibiting any amendments limiting
individual rights and guarantees); CONSTITUTION DE LA RÉPUBLIQUE DÉMOCRATIQUE DU
CONGO tit. XVIII, art. 185 (2006) (insisting that no law may alter the democratic structure of
the republic); CONSTITUTIA REPUBLICII MOLDOVA tit. VI, art. 142(2) (1994) (barring any
revisions restricting the fundamental rights and freedoms of citizens); Конституція
України [C
ONSTITUTION] June 28, 1996, tit. XIII, art. 157 (Ukr.) (prohibiting amendments
restricting rights and freedoms).
54
See, e.g., CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE CUBA ch. XV, art. 137
(codification of 1992) (making socialism unamendable); KONSTITUISAUN REPÚBLIKA
DEMOKÁTIKA TIMOR-LESTE [CONSTITUTION] pt. VI, tit. II, § 156(1) (2002) (East Timor)
(establishing national independence as unamendable); ISLAHAT VA TAQYYRATI VA
TATMIMAH QANUNI ASSASSI [AMENDMENT TO THE CONSTITUTION] art. 177, 1368 [1989]
(Iran) (entrenching official religion against amendment); T
ÜRKIYE CUMHURIYETI 1982
ANAYASASI [1982 CONSTITUTION] pt. I, art. 4 (1982) (Turk.) (making securalism
unamendable).
55
See, e.g., CONSTITUTION DU BURKINA FASO tit. XV, art. 165 (1991) (making national
territory unamendable); CONSTITUTION DU CAMEROON pt. XI, art. 64 (1972) (barring
amendment affecting the territorial integrity of the State); L
A CONSTITUCIÓN DE LA
REPÚBLICA DE GUINEA ECUATORIAL tit. V, art. 134 (2011) (Eq. Guinea) (same);
Конститутсияи (Сарқонуни) Ҷумҳурии Тоҷикистон [C
ONSTITUTION] pt. X, art. 100
(1994) (Taj.) (same).
56
See, e.g., CONSTITUCIÓN DE LA REPUBLICA DE EL SALVADOR tit. IX, art. 248 (1983)
(making presidential term unamendable); CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE
GUATEMALA tit. VII, art. 281 (1985) (same); CONSTITUIÇÃO DE REPÚBLICA PORTUGUESA pt.
IV, § II, art. 290(1)(i) (1976) (making political pluralism unamendable); C
ONSTITUTION DE
LA
VII RÉPUBLIQUE, Nov. 25, 2010, tit. XII, art. 175 (Niger) (2010) (same); CONSTITUTIA
ROMANIEI tit. VII, art. 152 (Rom.) (1991) (same).
57
See, e.g., 1975 SYNTAGMA [SYN.] [CONSTITUTION] 26, 110 (Greece) (making semi-
presidentialism unamendable); UUD
1945, ch. XVI, art. 37, § 5 (Indon.) (1945) (making
unitarism unamendable); Art. 139 Costituzione [Cost.] (It.) (making republicanism
unamendable); K
UWAITI CONST. pt. V, art. 175 (1962) (making the Amiri succession system
unamendable).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1039
unamendable constitution lacks the legitimacy of popular consent.
58
As Walter
Dellinger argues, “[a]n unamendable constitution, adopted by a generation
long since dead, could hardly be viewed as a manifestation of the consent of
the governed.”
59
Moreover, constitutional reformers would see naiveté in a
constitutional design that relies on the force of mere words to protect the
constitutional text from amendment or substitution.
60
Even an unamendable
constitution cannot survive revolution, observes Jeffrey Goldsworthy,
61
and the
rigidity of an unamendable constitution may in fact provoke it, suggests the
late Albert Venn Dicey.
62
Constitutional designers would have to concede that an unamendable
constitution is defenseless in the face of popular will to the contrary.
63
Constitutional designers would likewise have to concede that unamendability
betrays the self-assurance they have in themselves and the distrust they bare
for others.
64
Yet they would defend unamendability as an important, if only
symbolic,
65
check on majoritarian democracy.
66
They would point to
58
Michael C. Dorf, Dynamic Incorporation of Foreign Law, 157 U. PA. L. REV. 103,
120-22 (2008) (“[A]s the degree of entrenchment of a constitutional provision (or its
authoritative interpretation by a constitutional court) increases, so too does the difficulty of
reconciling the provision (or its interpretation) with democratic principles.”); Frank I.
Michelman, Thirteen Easy Pieces, 93
MICH. L. REV. 1297, 1303 (1995) (“We would not feel
we had proper self-government if everything that mattered in our higher law were
irrevocably and permanently placed beyond the people’s sovereign reach.”).
59
Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the
Amendment Process, 97 HARV. L. REV. 386, 386-87 (1983).
60
Melissa Schwartzberg, Should Progressive Constitutionalism Embrace Popular
Constitutionalism?, 72 OHIO ST. L.J. 1295, 1308 n.55 (2011).
61
JEFFREY GOLDSWORTHY, PARLIAMENTARY SOVEREIGNTY 70 (2010) (“Of course, a
constitution prohibiting the amendment of some part of it could be overturned by revolution,
but the same is true of any constitution.”).
62
A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 66
(Macmillan 8th ed. 1915).
63
JOHN RAWLS, POLITICAL LIBERALISM 233 (expanded ed. 2005); Amar, supra note 40, at
496 n.154.
64
See Sanford Levinson, The Political Implications of Amending Clauses, 13 CONST.
COMMENT. 107, 112-13 (1996) (referring to proponents of unamendability as “persons who
had an inordinate confidence in their own political wisdom coupled perhaps with an equally
inordinate lack of confidence in successor generations”).
65
Jon Elster, Constitutionalism in Eastern Europe: An Introduction, 58 U. CHI. L. REV.
447, 471 (1991).
66
See Stephen Holmes & Cass R. Sunstein, The Politics of Constitutional Revision in
Eastern Europe, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF
CONSTITUTIONAL AMENDMENT, supra note 4, at 275, 276-79 (“Amendability suggests, to put
it crudely, that basic rights are ultimately at the mercy of interest-group politics, if some
arbitrary electoral threshold is surpassed and amenders play by the book.”); Samuel
Issacharoff, Constitutional Courts and Democratic Hedging, 99
GEO. L.J. 961, 1002 (2011)
(comparing unamendability with the Indian basic-structure doctrine, stating that both
1040 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
Germany’s postwar Basic Law, which makes human dignity protections
unamendable,
67
as well as France’s rejection of monarchy and its
corresponding absolute entrenchment of republicanism
68
to illustrate how
constitutional designers may deploy unamendability as a preemptive device to
prevent the reoccurrence of a problematic past. Yet it would remain an open
question whether unamendable provisions actually prevent political actors
from doing what their text proscribes.
69
The architecture of Article V consists of two forms of formal
unamendability. One is formal temporary unamendability and the other is
constructive unamendability. First, Article V makes two items formally
temporarily unamendable: the importation of slaves and census-based
taxation.
70
Both were entrenched as immune from formal amendment until the
“seek[] to remove critical features of a democracy from immediate majoritarian pressure”).
67
ERIN DALY, DIGNITY RIGHTS: COURTS, CONSTITUTIONS, AND THE WORTH OF THE
HUMAN PERSON 17-19 (2013) (pointing to the German Basic Law and several other
constitutions that make human dignity unamendable, and observing that such a provision
requires interpreting all other constitutional provisions with the purpose of protecting
dignity);
see also Matthias Mahlmann, The Basic Law at 60: Human Dignity and the
Culture of Republicanism, 11 GERMAN L.J. 9, 10 (2010) (“Nazism still legitimizes the
guarantee of human dignity today by the abominable, vivid barbarism of its negation.”). The
Basic Law holds that “[h]uman dignity shall be inviolable,” G
RUNDGESETZ FÜR DIE
BUNDESREPUBLIK DEUTSCHLAND
[GRUNDGESETZ] [GG] [BASIC LAW] pt. I, art. 1(1) (Ger.),
and expressly designates it as unamendable. Id. pt. VII, art. 79(3). One of the ironies of
German constitutional history is that one of unamendability’s most prominent advocates
was Carl Schmitt, see C
ARL SCHMITT, LEGALITY AND LEGITIMACY 51-58 (Jeffrey Seitzer ed.
& trans., 2004), a leading apologist for Nazi fascism. WILLIAM E. SCHEUERMAN, CARL
SCHMITT: THE END OF LAW 15 (1999).
68
Claude Klein & András Sajó, Constitution-Making: Process and Substance, in THE
OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW 419, 439 (Michel Rosenfeld &
András Sajó eds., 2012) (discussing the French approach to substantive limitations on
formal amendment). The French unamendable constitutional provision read as follows:
“The Republican form of the Government cannot be made the subject of a proposed
revision. Members of families that have reigned in France are ineligible to the presidency of
the Republic.” Law Partially Revising the Constitutional Laws, Aug. 14, 1884, in
C
ONSTITUTIONAL AND ORGANIC LAWS OF FRANCE 168, 168 (Charles F.A. Currier ed. &
trans., 1893). The provision was proposed by Jules Ferry, who opposed monarchy and
hoped instead to create a stable republic. Nathalie Droin, Retour sur la loi Constitutionnelle
de 1884: Contribution à une Histoire de la Limitation du Pouvoir Constituent Derive,
80
REVUE FRANÇAISE DU DROIT CONSTITUTIONNEL 725, 740 (2009) (Fr.).
69
See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 320 (1991) (“Constitutional
history is full of eloquent warnings against putting too much faith in legal rules limiting the
power of future Americans to redefine the popular will. Nonetheless, entrenching the Bill
[of Rights] might make the triumph of a Nazi-like movement more difficult.”).
70
Alongside the Three-Fifths Clause and the Fugitive Slave Clause, these two clauses
formed part of the Constitution’s institutional infrastructure protecting slavery. Jamal
Greene, Originalism’s Race Problem, 88
DENV. U. L. REV. 517, 518-19 (2011).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1041
year 1808. The relevant passage in Article V reads as follows: “Provided that
no Amendment which may be made prior to the Year One thousand eight
hundred and eight shall in any Manner affect the first and fourth Clauses in the
Ninth Section of the first Article . . . .”
71
Article I, Section 9, Clause 1 concerns
the importation of slaves, and states:
The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year one thousand eight hundred and eight, but a
tax or duty may be imposed on such Importation, not exceeding ten
dollars for each Person.
72
Article I, Section 9, Clause 4 concerns census-based taxation: “No
capitation, or other direct, Tax shall be laid, unless in Proportion to the Census
or Enumeration herein before directed to be taken.”
73
To immunize a constitutional provision against formal amendment is to
make a statement about its importance to the founding moment or the larger
polity. It may also be, as in the case of the Importation Clause, the result of a
grand bargain without which a constitution would be impossible.
74
By
expressly protecting the slave trade against amendment until the year 1808,
Article V entrenches the rule that the slave trade could not be amended “until
its own internal time limit ran its course.”
75
Article V prohibited restrictions on
the importation of slaves until that year, though it did permit a tax levied for
each slave imported into the United States.
76
Congress ultimately passed a law
prohibiting the slave trade; the law came into force on January 1, 1808, but it
did not affect the lawfulness of slavery itself within the United States.
77
The impetus for entrenching a rule on census-based taxation followed from
the Constitution’s protection for the slave trade. It was part of the larger
constitutional design to make the least possible disturbance for slavery: the
Three-Fifths Clause, the Fugitive Slave Clause, the Insurrection Clause, the
Domestic Violence Clause, and the Importation Clause making unamendable
the slave trade – all of these were specific constitutional protections for
slavery.
78
As Jack Balkin has written, “[a]lthough the Constitution made
71
U.S. CONST. art. V.
72
Id. art. I, § 9, cl. 1.
73
Id. art. I, § 9, cl. 4.
74
See Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism
Through the Thirteenth Amendment, 39 U.C. DAVIS L. REV. 1773, 1807 n.175 (2006).
75
Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. ILL. L. REV. 1,
19.
76
Sandra L. Rierson, The Thirteenth Amendment as a Model for Revolution, 35 VT. L.
REV. 765, 791-92 (2011).
77
Paul Finkelman, The American Suppression of the African Slave Trade: Lessons on
Legal Change, Social Policy, and Legislation, 42 AKRON L. REV. 431, 460-63 (2009)
(observing that the law did nothing to abolish slavery).
78
Alexander Tsesis, Undermining Inalienable Rights: From Dred Scott to the Rehnquist
1042 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
oblique references to slavery at several places, the protection of slavery was
very much built into its structure.”
79
The Census-Based Taxation Clause
sprang from the same family tree as the Three-Fifths Clause.
80
Bruce
Ackerman explains that the Three-Fifths Clause “grant[ed] the slave states a
representational bonus in the House in exchange for their paying an extra
three-fifths share of ‘direct taxes.’”
81
Census-based taxation and the slave trade
were therefore deeply interconnected.
By shielding the Importation and Census-Based Taxation Clauses from
formal amendment until the year 1808, Article V disabled itself as to those two
clauses for a defined period of time. These two clauses are similar to the
formally unamendable provisions we commonly see in modern constitutions,
the difference being that they are only temporarily unamendable. There is
another difference, explains Jim Fleming: Whereas modern constitutions may
entrench unamendable provisions to express their constitutive principles,
“Article V entrenched features of the Constitution that were vulnerable to
being repealed through democratic procedures, precisely because they
manifested such deep compromises with our constitutive principles and
ordained such an imperfect Constitution.”
82
In the case of the Importation
Clause, its temporary entrenchment reflected a compromise between the slave
trade and the equality principle.
83
3. Constructive Unamendability
Constructive unamendability is the second unique design feature of Article
V. In contrast to the formal temporary unamendability that characterizes the
Importation and Census-Based Taxation Clauses, constructive unamendability
refers to a provision that is unamendable despite not being textually entrenched
against formal amendment. In one of the leading studies on constitutional
unamendability, Melissa Schwartzberg calls this form of unamendability de
facto entrenchment and explains that it arises when “amendment is virtually
impossible because of exceptionally high procedural barriers to change.”
84
I
Court, 39 ARIZ. ST. L.J. 1179, 1198-99 (2007).
79
J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 FORDHAM L.
REV. 1703, 1707 (1997).
80
U.S. CONST. art. I, § 2, cl. 3 (“Representatives and direct Taxes shall be apportioned
among the several States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole Number of free
Persons, including those bound to Service for a Term of Years, and excluding Indians not
taxed, three fifths of all other persons.”).
81
Bruce Ackerman, Taxation and the Constitution, 99 COLUM. L. REV. 1, 12 (1999).
82
JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY 219 (2006).
83
Id. (observing that the Framers likely struck this balance to “‘form a more perfect
Union’ than the Articles of Confederation” and that this deep compromise was necessary to
that end).
84
MELISSA SCHWARTZBERG, DEMOCRACY AND LEGAL CHANGE 12 (2007).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1043
use the phrase constructive unamendability to stress both that a provision is
unamendable and that its unamendability derives not from a textual command,
but from a political climate that makes it practically unimaginable, though
always theoretically possible, to achieve the necessary combination of
approval and ratification.
The Equal Suffrage Clause in Article V is an example of a constructively
unamendable provision. It guarantees that “no State, without its Consent, shall
be deprived of its equal Suffrage in the Senate.”
85
Scholars have mistakenly
understood it as an example of a formally unamendable provision.
86
Yet the
Equal Suffrage Clause is not absolutely entrenched against formal amendment
because it does not disable the amendment rule.
87
The reason why appears in
the Equal Suffrage Clause’s own terms: “No State, without its Consent, shall
be deprived of its equal Suffrage in the Senate.”
88
Article V does not expressly
forbid a formal amendment to a state’s relative voting power in the Senate; on
the contrary, it contemplates that possibility when it declares that a state may
be deprived of its equal voting power in the Senate where that state waives its
right to equal suffrage.
89
The Equal Suffrage Clause therefore implies an
exception to itself: If a state grants its consent, that state may constitutionally
85
U.S. CONST. art. V.
86
See, e.g., Raoul Berger, New Theories of “Interpretation”: The Activist Flight from the
Constitution, 47 OHIO ST. L.J. 1, 6 (1986) (stating that the Equal Suffrage Clause was
“expressly excepted from the sweep of the amendment power”); Douglas H. Bryant,
Unorthodox and Paradox: Revisiting the Ratification of the Fourteenth Amendment, 53
ALA. L. REV. 555, 562 (2002) (concluding that it “may not be altered and is forever a part of
the Constitution”); Levinson, supra note 3, at 697 n.128 (describing it as “explicitly
unamendable”); Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A
Reappraisal, 111
YALE L.J. 1665, 1681 (2002) (characterizing it as “entrenched . . . against
subsequent amendment”).
87
The drafting history of the Equal Suffrage Clause at the Philadelphia Convention
reveals that Roger Sherman appears to have been the first to propose protecting the equality
of state suffrage in the Senate. On September 15, 1787, he proposed exempting both the
importation of slaves and equal state suffrage from the rules of Article V, effectively
making them formally unamendable. 2
THE RECORDS OF THE FEDERAL CONVENTION OF 1787,
supra note 45, at 629. When Sherman moved to vote on his proposal, it took the following
language: “[T]hat no State shall without its consent be affected in its internal police, or
deprived of its equal suffrage in the Senate.” Id. at 630. His proposal was defeated by a
margin of eight to three. Id. Gouverneur Morris later proposed a similar text without
reference to the “internal police” power of states, providing “that no State, without its
consent shall be deprived of its equal suffrage in the Senate.” Id. at 631. This formulation
was adopted without debate or opposition. Id. The Philadelphia Convention therefore
resisted conferring upon states the unamendable power to choose whether to import slaves
beyond 1808, but agreed to entrench against amendment a state’s choice to diminish its own
representation in the Senate.
88
U.S. CONST. art. V (emphasis added).
89
Timothy Zick, Are the States Sovereign?, 83 WASH. U. L.Q. 229, 291 (2005).
1044 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
be deprived of its equal voting power in the Senate.
90
Though it may be
theoretically possible to amend the Equal Suffrage Clause,
91
it is unamendable
as a matter of political reality because no state would consent to diminished
representation in the Senate, hence the constructive unamendability of the
Clause.
The Equal Suffrage Clause has federalist origins. Madison explained that it
was designed “as a palladium to the residuary sovereignty of the States,”
92
many of which were understandably wary of entering into a new compact that
would eviscerate the existing Articles of Confederation.
93
The States had been
dominant under the Articles, and the new United States Constitution would
shift the locus of power from the states to the new national government.
94
The
Senate was the answer proffered by the Convention to reassure the states. As
Bradford Clark writes, “under the compromise reached at the Constitutional
Convention, the states’ representatives agreed to the supremacy of federal law
(and the corresponding displacement of state law) only on the condition that
the Senate (structured to represent the states) would have the opportunity to
veto all forms of supreme federal law.”
95
The states’ power in this respect
manifests itself in the Senate’s status as the only national institution given a
role in promulgating all three forms of federal law identified in the Supremacy
Clause.
96
Douglas Smith describes the Equal Suffrage Clause as a
“constitutional essential,”
97
without which the Philadelphia Convention would
not have reached agreement on the new constitution.
90
Levinson, supra note 64, at 122.
91
Miriam Galston, Theocracy in America: Should Core First Amendment Values Be
Permanent?, 37 HASTINGS CONST. L.Q. 65, 107 (2009) (observing that Article V does not
contain any truly unamendable provisions).
92
THE FEDERALIST NO. 43, supra note 44, at 275 (James Madison).
93
See Richard C. Schragger, Decentralization and Development, 96 VA. L. REV. 1837,
1849-50 (2010) (“But to the Anti-Federalists the new Constitution was dramatically
centralizing. The new United States had overthrown a king . . . and its respective states were
jealous of their own prerogatives and worried about regional domination.”).
94
See Robert N. Clinton, A Brief History of the Adoption of the United States
Constitution, 75 IOWA L. REV. 891, 892 (1990) (“The government ultimately created by the
Articles of Confederation amounted to a loose confederation of states that derived its
authority from acceptance of the principles of the confederation by the state legislatures
through ratification.”); Calvin R. Massey, Federalism and Fundamental Rights: The Ninth
Amendment, 38
HASTINGS L.J. 305, 307-09 (1987) (“Opposition to the Constitution’s
adoption was rooted in a deep fear of national power.”).
95
Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573,
1605-06 (2007).
96
Bradford R. Clark, Federal Lawmaking and the Role of Structure in Constitutional
Interpretation, 96
CALIF. L. REV. 699, 702-03 (2008) (“The Senate is the only federal
institution that the Constitution requires to participate in the adoption of all three forms of
federal law recognized by the Supremacy Clause.”).
97
Douglas G. Smith, An Analysis of Two Federal Structures: The Articles of
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1045
Article V was designed in large part to protect states from the self-
aggrandizing designs of the federal government. Each of Article V’s
mechanisms for amending the Constitution ensures that states will have the
capacity to protect themselves and their interests against the national
government. In the first two methods of amendment – two-thirds of each
House of Congress proposes amendments for ratification by three-quarters of
the states – states are protected because they must grant their approval to a
congressional proposal to amend the Constitution. In the second pair of
methods of amendment – the convention-centric mode of amendment – states
are protected because they are the ones which not only initiate the process of
amendment but moreover give the amendment proposals final sanction or
disapproval.
Article V’s protection for states also takes the form of disabling Congress.
The language of Article V’s amendment mechanism is “peremptory,” argued
Alexander Hamilton, observing that it leaves Congress no discretion on
whether to convene a constitutional convention when so demanded by the
requisite number of state legislatures: “[T]he national rulers, whenever nine
states concur, will have no option upon the subject. . . . The words of this
article are peremptory. The congress ‘shall call a convention.’ Nothing in this
particular is left to the discretion of that body.”
98
Hamilton pointed to Article V
itself in order to assuage the concerns of states that their interests would be
overridden by the national government: “We may safely rely on the disposition
of the State legislatures to erect barriers against the encroachments of the
national authority.”
99
Article V was therefore meant to be what Brannon
Denning describes as a “federalism-reinforcing” barrier to constitutional
change.
100
This assured that no amendment would come to pass without
something close to consensus across the nation.
101
B. The Disuse of Article V
The pace of formal amendment in the United States is decelerating. Article
V remains invoked by political actors but its successful use has declined since
its entrenchment. Of the twenty-seven formal amendments inscribed in the text
of the Constitution since its ratification in 1789, fifteen were ratified from the
founding through 1870.
102
The first ten, the Bill of Rights, were ratified in the
Confederation and the Constitution, 34 SAN DIEGO L. REV. 249, 322 (1997).
98
THE FEDERALIST NO. 85, supra note 44, at 525 (Alexander Hamilton).
99
Id. at 525-26.
100
Brannon P. Denning, Means to Amend: Theories of Constitutional Change, 65 TENN.
L. REV. 155, 178 (1997).
101
RICHARD B. BERNSTEIN, AMENDING AMERICA 15 (1993).
102
See U.S. CONST. amend. XV (1870); id. amend. XIV (1868); id. amend. XIII (1865);
id. amend. XII (1804); id. amend. XI (1795); id. amend. X (1791); id. amend. IX (1791); id.
amend. VIII (1791); id. amend. VII (1791); id. amend. VI (1791); id. amend. V (1791); id.
amend. IV (1791); id. amend. III (1791); id. amend. II (1791); id. amend. I (1791).
1046 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
same year, 1791.
103
From 1871 through 1933, there were six formal
amendments.
104
From 1934 through 1967, there were four formal
amendments.
105
From 1968 through 1991, there was only one formal
amendment.
106
And since 1992, over twenty years ago, there has likewise been
only one formal amendment.
107
Article V has in fact become so infrequently
used that Article V amendments have even been described as irrelevant.
108
In addition to the decelerating pace of formal amendment, the content of
formal amendment has changed as well. As John Vile observes, “[m]ost
amendments ratified over the course of the last sixty years have dealt with
minor structural features of the Constitution or with voting rights.”
109
András
Sajó agrees, observing that since the Reconstruction Amendments,
“amendments have been concerned with the technique of government,” with
the exception of the Prohibition Amendment, which was an effort to entrench
morality.
110
The changing orientation of successful uses of Article V
compelled Robert Dixon, writing in 1968, to refer to Article V as the
“comatose article of our living constitution.”
111
Whether it is dead or comatose
can be answered by asking whether Article V has fallen into either disuse or
desuetude. But first let us recognize that the declining use of Article V is
attributable to its difficulty.
1. The Difficulty of Article V
“Nothing is ‘easy,’” writes Henry Paul Monaghan, “about the processes
prescribed by Article V.”
112
Scholars today describe the requirements of
103
The promise of a Bill of Rights was effectively a condition precedent to the
ratification of the United States Constitution. George D. Skinner, Intrinsic Limitations on
the Power of Constitutional Amendment, 18
MICH. L. REV. 213, 215 (1920). The declared
purpose of the Bill of Rights was to recognize and protect fundamental rights, both
enumerated and unenumerated. See Selden Bacon, How the Tenth Amendment Affected the
Fifth Article of the Constitution, 16
VA. L. REV. 771, 776 (1930).
104
See U.S. CONST. amend. XXI (1933); id. amend. XX (1933); id. amend. XIX (1920);
id. amend. XVIII (1919); id. amend. XVII (1913); id. amend. XVI (1913).
105
See id. amend. XXV (1967); id. amend. XXIV (1964); id. amend. XXIII (1961); id.
amend. XXII (1951).
106
Id. amend. XXVI (1971).
107
Id. amend. XXVII (1992).
108
David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV.
1457, 1459-60 (2001) (“It is only a slight exaggeration to say that [informal amendment
processes] are the only means of change we have.”).
109
JOHN R. VILE, REWRITING THE UNITED STATES CONSTITUTION: AN EXAMINATION OF
PROPOSALS FROM RECONSTRUCTION TO THE PRESENT 7 (1991).
110
ANDRÁS SAJÓ, LIMITING GOVERNMENT: AN INTRODUCTION TO CONSTITUTIONALISM 42
(1999).
111
Robert G. Dixon, Jr., Article V: The Comatose Article of Our Living Constitution?, 66
MICH. L. REV. 931, 931 (1968).
112
Henry Paul Monaghan, We the People[s], Original Understanding, and
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1047
Article V as practically impossible to meet.
113
For instance, Bruce Ackerman
views Article V as establishing a “formidable obstacle course.”
114
Sanford
Levinson argues that “Article V, practically speaking, brings us all too close to
the Lockean dream (or nightmare) of changeless stasis,”
115
and that it is “the
Constitutional Amendment, 96 COLUM. L. REV. 121, 144 (1996).
113
See, e.g., Jack M. Balkin, Sanford Levinson’s Second Thoughts About Our
Constitutional Faith, 48
TULSA L. REV. 169, 171 (2012) (stating that the amendment
procedures of Article V pose “almost insurmountable obstacles to constitutional revision”);
Steven G. Calabresi & Livia Fine, Two Cheers for Professor Balkin’s Originalism, 103
NW.
U. L. REV. 663, 682 (2009) (stating that Article V “makes it almost impossible to amend the
Constitution”); Joel I. Colón-Ríos, De-Constitutionalizing Democracy, 47
CAL. W. L. REV.
41, 48-49 n.31 (2010) (stating that the amendment procedure contained in Article V
“establishes requirements that are so difficult to meet . . . that it makes constitutional
amendments almost impossible” (citing S
ANFORD LEVINSON, OUR UNDEMOCRATIC
CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN
CORRECT IT) 95 (2006))); Joel Colón-Ríos & Allan C. Hutchinson, Democracy and
Revolution: An Enduring Relationship?, 89
DENV. U. L. REV. 593, 602 (2012) (describing
Article V as “one of the most demanding constitutional amendment processes in the
world”); Eric S. Fish, The Twenty-Sixth Amendment Enforcement Power, 121 YALE L.J.
1168, 1234 (2012) (“During the last century, the Article V amendment process has ceased to
be an engine of significant change.”); Sanford Levinson, How I Lost My Constitutional
Faith, 71 MD. L. REV. 956, 969 (2012) (“By making it functionally impossible to amend the
Constitution with regard to anything controversial, Article V stultifies, indeed infantilizes,
our policies both directly and indirectly.”); Sanford Levinson, How the United States
Constitution Contributes to the Democratic Deficit in America, 55
DRAKE L. REV. 859, 874
(2007) (stating that Article V makes amendment “almost impossible by the difficulties
placed in its path”); Sanford Levinson, Still Complacent After All These Years: Some
Rumination on the Continuing Need for a “New Political Science,” 89 B.U. L. REV. 409,
422 (2009) (“Article V makes amendment extraordinarily difficult if not functionally
impossible.”); Landon Wade Magnusson, Article V Versus Article 89: Why the U.S. Does
Not Overturn Supreme Court Rulings Through Amendment, 62
SYRACUSE L. REV. 75, 115
(2012) (referring to the difficulty of the Article V process); John F. Manning, Separation of
Powers as Ordinary Interpretation, 124
HARV. L. REV. 1939, 1975 (2011) (referring to the
academic notion that “the Constitution is very old and almost impossible to amend”); Justin
Pidot, Jurisdictional Procedure,
54 WM. & MARY L. REV. 1, 29 (2012) (“Article V imposes
such high hurdles to constitutional amendment that it places this approach beyond practical
reality.”); Richard A. Primus, When Should Original Meanings Matter?, 107 MICH. L. REV.
165, 211 (2008) (“My own inclination is to regard the possibility of formal constitutional
amendment as generally remote.”); Garrick B. Pursley, Defeasible Federalism, 63
ALA. L.
REV. 801, 865 (2012) (“There is fairly broad consensus today that Article V’s process is too
onerous to provide for sufficient adaptability.”); Ilya Somin & Sanford Levinson,
Democracy, Political Ignorance, and Constitutional Reform, 157
U. PA. L. REV. ONLINE
239, 243-44 (2008), http://www.pennlawreview.com/online/157-U-Pa-L-Rev-PENNumbra-
239.pdf, archived at http://perma.cc/5YSD-LWHC (stating that the requirements of Article
V make it “almost impossible to enact any major amendment”).
114
Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029, 1077 (2004).
115
LEVINSON, supra note 113, at 21.
1048 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
Constitution’s most truly egregious feature.”
116
Rosalind Dixon has described
the “virtual impossibility of formal amendment to the Constitution under
Article V.”
117
Jeffrey Goldsworthy observes that “the supermajoritarian
requirements of Article V are so onerous as to be arguably undemocratic, by
making it much too easy for minorities to veto constitutional amendments.”
118
Vik Amar explains that Article V establishes “particular and cumbersome
processes.”
119
And Richard Fallon laments that “[e]ven under the best of
circumstances, the requirement that three-fourths of the states must ratify
constitutional amendments makes it nearly impossible to achieve significant
change in our written Constitution through the Article V process.”
120
Article V,
in short, is seen as a dead end.
This is not a new perspective on the difficulty of successfully using Article
V. Writing in 1885, Woodrow Wilson decried the “cumbrous machinery of
formal amendment erected by Article Five.”
121
Even earlier, at the adoption of
the Constitution, John DeWitt doubted whether it would ever be possible to
amend the Constitution using Article V: “[W]ho is there to be found among us,
who can seriously assert, that this Constitution, after ratification and being
practiced upon, will be so easy of alteration?”
122
DeWitt believed states would
have views too different to meet Article V’s required supermajority threshold:
Where is the probability that three fourths of the States in that
Convention, or three fourths of the Legislatures of the different States,
whose interests differ scarcely in nothing short of every thing, will be so
very ready or willing materially to change any part of this System, which
shall be to the emolument of an individual State only?
123
The answer, he predicted, was that formal amendment would be rare.
116
Sanford Levinson, Meliorism v. “Bomb-Throwing” as Techniques of Reform, 48
TULSA L. REV. 477, 491 (2013).
117
Rosalind Dixon, Updating Constitutional Rules, 2009 SUP. CT. REV. 319, 319.
118
Jeffrey Goldsworthy, Constitutional Cultures, Democracy, and Unwritten Principles,
2012
U. ILL. L. REV. 683, 694. As Henry Taft has written, however, Article V deliberately
“render[ed] the wishes of the one-fourth nugatory,” and was “based on high governmental
efficiency and embodies a concession made by all the states and their people in order to
secure the benefits of the union.” Henry W. Taft, Amendment of the Federal Constitution: Is
the Power Conferred by Article V Limited by the Tenth Amendment?, 16
VA. L. REV. 647,
649 (1930).
119
Vikram David Amar, The People Made Me Do It: Can the People of the States
Instruct and Coerce Their State Legislatures in the Article V Constitutional Amendment
Process?,
41 WM. & MARY L. REV. 1037, 1043 (2000).
120
Richard H. Fallon, Jr., American Constitutionalism, Almost (But Not Quite) Version
2.0, 65 ME. L. REV. 77, 92 (2012).
121
WOODROW WILSON, CONGRESSIONAL GOVERNMENT 242 (1901).
122
JOHN DEWITT, ESSAYS I AND II (1787), reprinted in THE ANTI-FEDERALIST PAPERS
AND THE
CONSTITUTIONAL CONVENTION DEBATES 189, 195 (Ralph Ketcham ed., 2003).
123
Id.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1049
The structure of Article V partly explains its difficulty. Yet the difficulty of
Article V is not the result of an intentional design to prevent democratic
corrections to the constitutional text. It derives instead from the desire of states
to protect their own provincial interests. As Charles Merriam writes, “[t]hat the
Constitution was made difficult to amend was not due to the desire to prevent
democratic change, but to the jealousy of the states, who feared the conditions
they had exacted in a series of painful compromises might be swept away by a
bare majority of their sister states, if unchecked by a requirement of an
extraordinary majority.”
124
For this reason, Patrick Henry saw Article V as
more rigid than flexible, calling it “miraculous” that a supermajority of states
would ever agree to ratify proposed amendments.
125
Henry, an opponent of
ratification,
126
made it clear how he felt about the prospect of ever using
Article V if the Constitution were ratified: “The way to amendment, is, in my
conception, shut.”
127
For him, the balance that Madison saw in Article V was
erroneous, illusory, imagined, or some combination of these.
Today, Article V’s state supermajority ratification threshold has become
functionally even more difficult to achieve as a result of the expansion of the
Union. As Rosalind Dixon explains, the increased number of states – from
thirteen in 1789 to fifty since 1967 – has changed the denominator for Article
V, which has increased the Constitution’s amendment difficulty.
128
Dixon
explains: “All else being equal, this change in the denominator for Article V
has implied a directly proportionate increase in the difficulty of ratifying
proposed amendments.”
129
Dixon furthermore observes that today’s fifty-state
denominator under Article V would be equivalent to a founding-era state
supermajority ratification threshold lower than two-thirds: “On one calculation,
if one were to try to adjust for this change in the denominator for Article V, the
functional equivalent to the 75% super-majority requirement adopted by the
framers would in fact now be as low as 62%.”
130
Thomas Jefferson predicted
this denominator problem, in 1823, when he wrote:
124
CHARLES EDWARD MERRIAM, THE WRITTEN CONSTITUTION AND THE UNWRITTEN
ATTITUDE 6-7 (1931).
125
Patrick Henry, Address at the Virginia Ratifying Convention (June 5, 1788), reprinted
in THE ANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL CONVENTION DEBATES, supra
note 122, at
199, 204.
126
Sanford Levinson, “Veneration” and Constitutional Change: James Madison
Confronts the Possibility of Constitutional Amendment, 21
TEX. TECH. L. REV. 2443, 2447
(1990) (stating that Patrick Henry was a “chief adversary of the new Constitution” and
focused on the “difficulty of amendment as a reason for rejecting the entire document”).
127
Henry, supra note 125, at 203.
128
Rosalind Dixon, Partial Constitutional Amendments, 13 U. PA. J. CONST. L. 643, 653
(2011).
129
Id.
130
Id.
1050 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
[T]he States are now so numerous that I despair of ever seeing another
amendment to the Constitution, although the innovations of time will
certainly call, and now already call, for some, and especially the smaller
States are so numerous as to render desperate every hope of obtaining a
sufficient number of them in favor of “Phocion’s” proposition.
131
The Constitution’s amendment difficulty therefore derives partly from
Article V’s structure.
Political parties and increased political polarization may have exacerbated
the difficulty of Article V. As American political parties have become nearly
evenly divided across both the federal and state governments over the last two
generations, writes David Kyvig, “divisions within society together with the
requirements of Article V frustrated every attempt to bring about fundamental
change.”
132
Kyvig adds that the close balance between political parties and
among the forces of federalism alongside the “centripetal power of the federal
government and the centrifugal strength of the states” have combined to inhibit
agreement on formal amendment.
133
Daryl Levinson and Rick Pildes observe
that political parties in the United States “today are both more internally
ideologically coherent and more sharply polarized than at any time since the
turn of the twentieth century.”
134
Rick Pildes connects the onset of today’s
hyperpolarized politics to the adoption of the Voting Rights Act of 1965:
[T]his polarization reflects the deep structural and historical
transformation in American democracy unleashed in 1965 by the
enactment of the VRA. That moment began the process of ideologically
realigning the political parties and of purifying them, so that both parties
are far more ideologically coherent, and differentiated from each other,
than at any time in many generations. The culmination of that historical
transformation – which can be seen as the maturation or full realization of
American democracy – is today’s hyperpolarized partisan politics.
135
Pildes concludes that “[t]he reality is that the era of highly polarized,
partisan politics will endure for some time to come.”
136
This only complicates
an already difficult formal amendment process that relies on strong
supermajorities across both the federal and state institutions. Nevertheless, as
Christopher Eisgruber cautions, measuring amendment difficulty is itself
difficult because amendment difficulty turns “upon a number of cultural
131
Letter from Thomas Jefferson to George Hay (Aug. 1823), in 1 THE JEFFERSON
CYCLOPEDIA 715 (John P. Foley ed., 1900).
132
DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION,
1776-1995, at 426 (1996).
133
Id.
134
Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119
HARV. L. REV. 2312, 2333 (2006).
135
Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized
Democracy in America, 99 C
ALIF. L. REV. 273, 332-33 (2011).
136
Id. at 333.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1051
considerations, such as the extent to which state politics differ from national
politics and the extent to which people are receptive to or skeptical about the
general idea of constitutional amendment.”
137
The difficulty of measuring
amendment difficulty has not discouraged scholars from comparing
amendment difficulty across nations. In such measures, the United States has
ranked among the most difficult to amend.
138
2. The Consequences of Formal Amendment Difficulty
The consequence of the difficulty of Article V has been to reroute political
actors pursuing constitutional change from formal to informal amendment.
Today, the battleground for constitutional change is what Bruce Ackerman
calls a “transformative appointment[] to the Supreme Court.”
139
Ackerman
explains that Article V’s formal model of dual federalism, requiring assent
from both national and state institutions, has been replaced by a new informal
method of constitutional change that relies on the assent of only national
institutions.
140
The Electoral College selects the President in a national
election, which in turn authorizes the President’s use of the appointment power
to trigger a “decisive break with the constitutional achievements of the past
generation.”
141
The United States Senate then debates the merits of the
President’s Supreme Court nominee.
142
And the Supreme Court subsequently
either adopts or rejects an informal constitutional amendment intended to
change the Constitution fundamentally.
143
This new model of informal
amendment codifies constitutional change in “transformative judicial opinions
that self-consciously repudiate preexisting doctrinal premises and announce
new principles that redefine the American people’s constitutional identity,”
144
rather than in a formal written change to the constitutional text.
The difficulty of formally amending the Constitution has accordingly
pushed “a significant amount of constitutional change off the books,”
145
and
forced political actors to update the Constitution informally through non-
137
CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 22 (2001).
138
See, e.g., AREND LIJPHART, PATTERNS OF DEMOCRACY 220-22 (1999) (demonstrating
that Article V makes the United States Constitution one of the world’s most difficult to
amend formally); L
UTZ, supra note 38, at 171.
139
Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164, 165
(1988).
140
Id. at 1171 (distinguishing formal amendment from transformative appointments on
the basis of the consent of only national institutions needed in the latter).
141
Id. at 1173.
142
Id. at 1172.
143
Id.
144
Id. at 1173.
145
Stephen M. Griffin, The Nominee Is . . . Article V, 12 CONST. COMMENT. 171, 172
(1995).
1052 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
Article V methods,
146
leaving the actual constitutional text unchanged. As
Lawrence Church observes, the amendment procedures under Article V are
“too cumbersome and erratic to serve as the sole vehicle for constitutional
development in a complex and rapidly changing society.”
147
There are several
other more flexible modes of constitutional change that do not rely on the
mechanistic procedures of Article V in order to keep the constitutional regime
current and reflective of new social and political equilibria. They result in
unwritten changes to the Constitution that may be as constraining as a formal
amendment.
That the United States Constitution is both written and unwritten is therefore
now uncontroversial.
148
The Constitution is “much more, and much richer, than
the written document.”
149
Though we cannot deny the importance of the
constitutional text, it “is only one component of the country’s actual
constitution.”
150
The written constitution cannot completely reduce to writing
the principles of natural rights that form our higher law and against which we
judge the moral legitimacy of our positive law.
151
Nor can it reflect the
political forces, democratic traditions, and judicial precedent that constitute the
Constitution.
152
Whether something is constitutional therefore depends less on
where or whether it is codified than whether political actors perceive it as
politically legitimate and conform their conduct to it.
153
146
Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108
COLUM. L. REV. 606, 618-19 (2008) (explaining that Article V’s stringency is a possible
explanation for “creative judicial ‘interpretation’ of the text” and other non–Article V
methods of establishing supreme law).
147
W. Lawrence Church, History and the Constitutional Role of Courts, 1990 WIS. L.
REV. 1071, 1078.
148
See, e.g., AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION: THE
PRECEDENTS AND PRINCIPLES WE LIVE BY (2012); LAURENCE H. TRIBE, THE INVISIBLE
CONSTITUTION (2008).
149
David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877,
934 (1996).
150
John Harrison, Enumerated Federal Power and the Necessary and Proper Clause, 78
U. CHI. L. REV. 1101, 1127 (2011).
151
Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703,
715-16 (1975) (observing that while an essential element of American constitutional law is
the reduction to written form of natural rights, the Framers generally recognized that
“written constitutions could not completely codify the higher law”).
152
Todd E. Pettys, The Myth of the Written Constitution, 84 NOTRE DAME L. REV. 991,
996 (2009) (asserting that the bulk of the nation’s constitutional law is established by
“political forces, tradition, and judicial precedent”).
153
John Gardner, Can There Be a Written Constitution?, in 1 OXFORD STUDIES IN
PHILOSOPHY OF LAW 162, 170 (Leslie Green et al. eds., 2011) (positing that whether a law is
part of the Constitution is determined by how it is received by its users, including the courts
and other law-applying officials).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1053
No single branch of government can make an informal amendment on its
own; other branches or institutions must either participate directly or
acquiesce.
154
We may therefore understand the concept of informal amendment
by judicial interpretation as an informal amendment initiated by the judiciary
and ratified by other branches through acquiescence or approval. For instance,
the ratification may occur when the other branches decide not to override the
judicial interpretation with a formal amendment to the Constitution. It may
also occur where an effort to amend formally the informal amendment fails to
achieve the necessary majorities. Bruce Ackerman’s study of informal
amendment demonstrates how informal amendment in the United States may
occur through sustained institutional interactions among the judiciary, the
legislature, the executive branch, and the public in a five-stage process in
which a constitutional impasse between political institutions is presented to the
people in recurring elections, after which one or more of the formerly resistant
institutions concedes defeat in the face of popular choice.
155
Yet that informal amendment occurs does not make it legitimate. Whether
informal amendment enjoys legitimacy is arguable,
156
and depends upon our
understanding of legitimacy, whether sociological, moral, or legal.
157
Informal
amendment may also entail risks, namely its capacity to undermine the
constitutional text, its overreliance on courts, as well as its potentially injurious
effect on constitutional dialogue.
158
Relatedly, although informal amendment
by judicial interpretation may be the least complicated method of amendment,
a constitutional community may be better off amending its constitution through
the formal amendment process, even if the court’s interpretation would lead to
the same result.
159
The public debate and participation that would follow from
154
WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A
JUST POLITICAL ORDER 18 n.51 (2007).
155
ACKERMAN, supra note 5, at 20-25. Scholars have critiqued Ackerman’s theory of
constitutional moments. See, e.g., James E. Fleming, We the Unconventional American
People, 65 U. CHI. L. REV. 1513, 1539 (1998) (“How is it possible that Ackerman could
believe it necessary to develop his theory of constitutional amendment and transformation
outside Article V in order to realize ‘the possibility of popular sovereignty’ and ‘the
possibility of interpretation’?”); Michael J. Klarman, Constitutional Fact/Constitutional
Fiction: A Critique of Bruce Ackerman’s Theory of Constitutional Moments, 44
STAN. L.
REV. 759, 797 (1992); Laurence H. Tribe, Taking Text and Structure Seriously: Reflections
on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1225
(1995).
156
See Jack Wade Nowlin, The Constitutional Illegitimacy of Expansive Judicial Power:
A Populist Structural Interpretive Analysis, 89
KY. L.J. 387, 407-10 (2001).
157
See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787,
1794-1801 (2005).
158
Denning, supra note 100, at 236-42 (describing the “vices” of non–Article V
amendments).
159
DENNIS C. MUELLER, CONSTITUTIONAL DEMOCRACY 324 (1996) (arguing that informal
judicial amendments suffer from two main defects: courts represent a “very small sample of
1054 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
formal amendment make it “more likely to maintain citizen consensus on the
provisions of the constitution and compliance with its provisions.”
160
Even so,
that informal amendment may in some ways be problematic does not obviate
its incidence.
3. The Parochial Uses of Article V
Although the rise and comparative ease of informal amendment has reduced
the need to amend the Constitution formally, Article V has always remained in
frequent, albeit unsuccessful, use. There have been many failed amendment
proposals each decade from the founding through the 1990s: beginning with
196 in the 1780s, to a low of 22 in the 1850s, to a high of 2598 in the 1960s,
and settling now to just under 1000 proposals in each of the 1980s and
1990s.
161
When compared to the declining number of successful formal
amendments over the same period, the trend suggests that the number of failed
amendment proposals has increased as the number of successful formal
amendment has declined.
The latest twenty-year period during which Article V has remained
unsuccessfully used shows that political actors have nevertheless continued to
use Article V. Political actors have proposed formal amendments to such
matters of legal and moral disagreement as prayer in school,
162
campaign
finance,
163
flag desecration,
164
presidential term limits,
165
the definition of
marriage,
166
the national budget,
167
gun rights,
168
and abortion.
169
States also
the population,” and their judgments lack the same exposure that a referendum would
require).
160
Id.
161
JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED
AMENDMENTS, AND AMENDING ISSUES, 1789-2002, at 539 (2d ed. 2003). There were over
1900 amendment proposals in the Constitution’s first century through the year 1889, and
another 1600 in the subsequent thirty-four years. See Herman V. Ames, The Amending
Provision of the Federal Constitution in Practice, 63
PROC. AM. PHIL. SOC’Y 62, 63 (1924).
162
See H.R.J. Res. 42, 113th Cong. (2013) (proposing an amendment to clarify that the
Constitution neither prohibits nor requires voluntary prayer in schools).
163
See H.R.J. Res. 31, 113th Cong. (2013) (proposing an amendment relating to
congressional and state authority to regulate campaign contributions and expenditures).
164
See H.R.J. Res. 19, 113th Cong. (2013) (proposing an amendment to give Congress
power to prohibit the desecration of American flags).
165
See H.R.J. Res. 15, 113th Cong. (2013) (proposing an amendment to remove
presidential term limits).
166
See H.R.J. Res. 106, 108th Cong. (2004) (proposing an amendment that marriage
shall consist of a union between a man and a woman).
167
See S.J. Res. 1, 105th Cong. (1997) (proposing an amendment to require a balanced
budget).
168
See H.R.J. Res. 438, 102d Cong. (1992) (proposing an amendment repealing the
Second Amendment).
169
See H.R.J. Res. 155, 101st Cong. (1989) (proposing an amendment to protect unborn
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1055
continue to use Article V, albeit unsuccessfully. Political actors in states often
urge Congress to pass constitutional amendment proposals for their subsequent
ratification. Recent subjects of state efforts for formal amendment have
included similarly contentious subjects, namely campaign finance,
170
the
definition of marriage,
171
and judicial elections.
172
Therefore, although
constitutional scholars have criticized the design of Article V for its difficulty,
Article V has yet to be repudiated by political actors, who continue to use it.
Yet political actors may be using Article V for narrow parochial purposes.
Recognizing that the path to formal amendment may in fact be blocked due to
the design of Article V, the rise of political parties and increased political
polarization as well as the new denominator for state ratification, political
actors may nonetheless have strategic self-regarding and self-entrenching
reasons to exploit the signaling function that introducing an Article V
amendment proposal serves. A political actor may be driven to introduce a
formal amendment proposal to serve her interest in creating the impression for
constituents that she is an effective voice for them, though there may be no
prospect that her proposal will ever proceed past its introduction in Congress.
As Mark Tushnet explains, even where a congressperson can somehow gather
the required majorities to send an amendment proposal to the states, she is
more likely to pursue her desired change through ordinary congressional
legislation, which is a more direct, more straightforward, and much faster
process.
173
Once the congressional law is passed, she might then be more
inclined to bear the costs of pursuing a formal amendment through Article
V.
174
These parochial purposes may be defined in terms of what David Mayhew
identifies as three kinds of electorally oriented activities in which
children).
170
See S.J. Res., 88th Gen. Assemb., Jan. Sess. (R.I. 2012) (passing a Joint Resolution
urging Congress “to pass and send to the states a constitutional amendment permitting state
and federal regulation and restriction of independent political expenditures”); see also 158
C
ONG. REC. S7344-45 (daily ed. Dec. 3, 2012) (acknowledging the Joint Resolution).
171
See H.R.C. Memorial, 47th Leg., Reg. Sess. (Ariz. 2005) (passing the Concurrent
Memorial urging Congress to “propose an amendment to the Constitution of the United
States to acknowledge marriage as between one man and one woman”); see also 151 C
ONG.
REC. 13,146 (June 20, 2005) (acknowledging the Concurrent Memorial).
172
See H.R. Res. 120, 1997 Leg., Reg. Sess. (La. 1997) (passing a House Resolution
urging Congress to propose an amendment “to provide for election of members of the
federal judiciary”); see also 144 C
ONG. REC. 16,076 (July 17, 1998) (acknowledging the
House Resolution).
173
Mark V. Tushnet, Entrenching Good Government Reforms, 34 HARV. J.L. & PUB.
POL’Y 873, 874 (2011) (reasoning that if a politician has the congressional support necessary
to propose an amendment to the states, then she also has enough votes to enact this change
through ordinary legislation and will likely pursue this more straightforward method).
174
Id.
1056 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
congresspersons engage: position taking, credit claiming, and advertising.
175
At
a time when formal amendment is exceedingly difficult, the modern use of
Article V among both national and state political actors may reflect a
combination of all three of these activities: advertising, which Mayhew defines
as “any effort to disseminate one’s name among constituents in such a fashion
as to create a favorable image but in messages having little or no issue
content”;
176
credit claiming, defined as “acting so as to generate a belief in a
relevant political actor (or actors) that one is personally responsible for causing
the government, or some unit thereof, to do something that the actor (or actors)
considers desirable”;
177
and position taking, defined as “the public enunciation
of a judgmental statement on anything likely to be of interest to political
actors.”
178
Where a congressperson introduces a formal amendment to abolish
the income tax,
179
for instance, she may have these aims in mind.
Even the historically unused national convention procedure has been used in
this way. The national convention procedure – requiring two-thirds of states to
petition Congress to call a convention and three-quarters of states to ratify the
amendment proposals – has not once been used successfully since the
Constitution’s adoption.
180
It has therefore reached the longest possible period
of sustained disuse for a constitutional provision in the Constitution.
181
In light
of this Article V procedure’s disuse, Akhil Amar has asked, as an aside,
whether the disuse of the national convention process has rendered it obsolete:
“Does the [nonuse] of two of Article V’s four paths mean that they too have
somehow lapsed?”
182
Amar posed the question rhetorically, suggesting to
readers that the convention process had not lapsed into desuetude, much like
the as-yet unused right of the people to alter and abolish their government has
175
DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 73 (1974).
176
Id. at 49.
177
Id. at 52-53.
178
Id. at 61.
179
See H.R.J. Res. 16, 113th Cong. (2013).
180
See William B. Fisch, Constitutional Referendum in the United States of America, 54
AM. J. COMP. L. 485, 490 (2006). Scholars have explored its present viability as a method to
amend the Constitution formally. Compare Michael B. Rappaport, Reforming Article V: The
Problems Created by the National Convention Amendment Method and How to Fix Them,
96
VA. L. REV. 1509, 1535 (2010) (arguing that the process as currently understood “does
not work”), with Gerard N. Magliocca, State Calls for an Article Five Convention:
Mobilization and Interpretation, 2009
CARDOZO L. REV. DE NOVO 74, 75 (challenging the
view that the process is “not a practical device” for constitutional change).
181
Two modern efforts have come very close to securing the agreement of thirty-four
states to petition Congress to call a convention. In the 1980s and 1960s, states fell just short
of the two-thirds supermajority needed to petition Congress successfully to call a convention
to consider amendments to balance the budget and to override the Supreme Court’s one-
person one-vote decisions, respectively. See Ruth Bader Ginsburg, On Amending the
Constitution: A Plea for Patience, 12 U.
ARK. LITTLE ROCK L. REV. 677, 680-81 (1990).
182
Amar, supra note 40, at 499 n.164.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1057
not lapsed from disuse since 1789.
183
Though it has not been used successfully
for over 220 years, Article V’s convention process has not actually remained
unused.
Political actors continue to contemplate the use of the national convention
procedure despite the absence of any actionable precedent to structure its
use.
184
As early as 1789, states began petitioning Congress to call a convention,
with additional notable periods of active petitioning in the 1830s, the 1860s,
the 1890s, and into the 1920s.
185
Since then, states have often petitioned
Congress to call a convention,
186
apparently hundreds of times.
187
As of 1937,
at least thirty-six states had petitioned Congress to call a convention.
188
Three
more recent examples include a Colorado petition to Congress for a
constitutional convention to repeal the Patient Protection and Affordable Care
183
Id.
184
The lack of precedent raises important questions about how a convention would
actually proceed, including how states would be represented at a convention, how to
determine the scope of the convention’s agenda, how the time and place of the convention is
fixed, and how to tally state petitions. See, e.g., Arthur Earl Bonfield, The Dirksen
Amendment and the Article V Convention Process, 66
MICH. L. REV. 949, 951-99 (1968)
(exploring the role of the national legislature in the event of a constitutional convention);
James Kenneth Rogers, The Other Way to Amend the Constitution: The Article V
Constitutional Convention Amendment Process, 30
HARV. J.L. & PUB. POL’Y 1005, 1005
(2007) (interrogating the procedure of the constitutional convention and stating that “[m]any
questions exist about the use of this amendment process”); John R. Vile, American Views of
the Constitutional Amending Process: An Intellectual History of Article V, 35
J. AM. LEGAL
HIST. 44, 63-64 (1991) (remarking that constitutional conventions have sparked “lots of
scholarly speculation” as to convention procedure); Douglas G. Voegler, Amending the
Constitution by the Article V Convention Method, 55
N.D. L. REV. 355, 366-406 (1979)
(discussing the issues raised by the Article V convention method); Hugh Evander Willis,
The Doctrine of the Amendability of the United States Constitution, 7
IND. L.J. 457, 459
(1932) (exploring the procedure of a constitutional convention).
185
See Ralph R. Martig, Amending the Constitution – Article V: The Keystone of the
Arch, 35
MICH. L. REV. 1253, 1267-69 (1937).
186
See STAFF OF H. COMM. ON THE JUDICIARY, 87TH CONG., STATE APPLICATIONS ASKING
CONGRESS TO CALL A FEDERAL CONSTITUTIONAL CONVENTION III (Comm. Print 1961)
(“Since the Constitution’s adoption 171 years ago, there have been over 200 state
applications calling for conventions to amend the Constitution on a wide variety of subjects
. . . .”).
The petitioning process begins with a state passing a resolution or memorial. See
T
HOMAS H. NEALE, CONG. RESEARCH SERV., R42589, THE ARTICLE V CONVENTION TO
PROPOSE CONSTITUTIONAL AMENDMENTS: CONTEMPORARY ISSUES FOR CONGRESS 28-29
(2012). The resolution or memorial is then received and acknowledged by one of the Houses
of Congress. Id.
187
See Stewart Dalzell & Eric J. Beste, Is the Twenty-Seventh Amendment 200 Years Too
Late?, 62 G
EO. WASH. L. REV. 501, 510 (1994) (“[O]ver five thousand bills proposing
amendments and hundreds of state applications calling for a convention have been
introduced in Congress . . . .”).
188
Martig, supra note 185, at 1267.
1058 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
Act,
189
a North Dakota petition to Congress for a constitutional convention to
condition an increase in federal debt on the approval of state legislatures,
190
and an Idaho petition to Congress for a constitutional convention to draft a
right to life amendment.
191
Scholars consider a convention possible.
192
Recently on September 24 and
25, 2011, Lawrence Lessig and Mark Meckler co-chaired a conference at
Harvard Law School on holding a new Constitutional Convention.
193
That the
national convention process remains used despite little success is perhaps best
demonstrated when states rescind their Article V petitions to convene a
constitutional convention out of concern that a constitutional convention would
not limit itself to the narrow subject for which the convention was proposed
189
See H.R. Res. 12-1003, 68th Gen. Assemb., Reg. Sess. (Colo. 2012) (petitioning
Congress for an amendment repealing the Affordable Care Act); 252 C
ONG. REC. H5009
(daily ed. July 18, 2012) (acknowledging the Colorado House Resolution).
190
See S. Con. Res. 4007, 62d Leg. Assemb., Reg. Sess. (N.D. 2011) (petitioning
Congress for an amendment concerning the federal debt); 158 CONG. REC. S1459 (daily ed.
Mar. 7, 2012) (acknowledging the North Dakota Senate Concurrent Resolution).
191
See S. Con. Res. 132, 45th Leg., Reg. Sess. (Idaho 1980) (petitioning Congress for a
right-to-life amendment); 126 CONG. REC. 6172 (Mar. 21, 1980) (acknowledging the Idaho
Senate Concurrent Resolution).
192
See, e.g., RICHARD LABUNSKI, THE SECOND CONSTITUTIONAL CONVENTION: HOW THE
AMERICAN PEOPLE CAN TAKE BACK THEIR GOVERNMENT 6 (2000) (exploring how the
American people should use Article V to initiate a constitutional convention); L
EVINSON,
supra note 113, at 24 (asking readers to consider the idea of a new convention); Arthur Earl
Bonfield, Proposing Constitutional Amendments by Convention: Some Problems, 39 NOTRE
DAME L. REV. 659, 671 (1964) (“From [Article V’s] language alone it would seem clear that
Congress was to be under a firm and nondiscretionary obligation to call a Convention when
sufficient applications from two-thirds of the states are tendered.”); Sam J. Ervin, Jr.,
Proposed Legislation to Implement the Convention Method of Amending the Constitution,
66 MICH. L. REV. 875, 875 (1968) (stating that the misinformation and unknowns
surrounding the implementation of a constitutional convention prompted the author to
introduce a proposal designed to implement Article V’s convention amendment provision);
Gerald Gunther, The Convention Method of Amending the United States Constitution, 14
GA. L. REV. 1, 25 (1979) (suggesting that the path of a convention approach to amendment
may be taken today); Michael Stokes Paulsen, How to Count to Thirty-Four: The
Constitutional Case for a Constitutional Convention, 34 HARV. J.L. & PUB. POL’Y 837, 838
(2011) (remarking that once two-thirds of the states have asked for a constitutional
convention, Congress has no choice but to call the convention as it is a “nondiscretionary
ministerial duty”); Arthur H. Taylor, Fear of an Article V Convention, 20 BYU J. PUB. L.
407, 428 (2006) (stating the an Article V convention can reshape the future course of our
nation and remains the only viable means to check judicial activism); Bruce M. Van Sickle
& Lynn M. Boughey, A Lawful and Peaceful Revolution: Article V and Congress’ Present
Duty to Call a Convention for Proposing Amendments, 14 HAMLINE L. REV. 1, 4 (1990)
(claiming that Congress is constitutionally obligated to call a convention at this time).
193
See Conference on the Constitutional Convention, CONF. CONST. CONVENTION, http://
www.conconcon.org (last visited Feb. 15, 2014), archived at http://perma.cc/KP5Z-ZMJ8.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1059
and could instead become a “runaway convention.”
194
While the Article V
convention procedure has yet to be invoked successfully, it has in fact been
used since the founding.
The modern use of Article V for parochial purposes reflects Stephen
Skowronek’s theory of constitutional evolution: when established
governmental processes appear to break down, political actors may redeploy
old institutions, like Article V, to operate in new ways and create new
procedures, like informal amendment, to preserve the whole and ensure
constitutional continuity.
195
The modern parochial use of Article V also aligns
with the tentative conclusions in Darren Latham’s study of the historical
amendability of the Constitution.
196
Explaining that the procedure for a
congressperson to introduce a bill for either a law or an amendment had
become virtually free and without barrier by the beginning of the twentieth
century, Latham explores the kind and frequency of bill introductions over the
course of the Constitution’s history.
197
Latham divides the last two centuries
into seven eras. During the first era, also known as the founding era (1791–
1812), congresspersons introduced serious bills and were optimistic about their
eventual success despite the difficulty of introducing them.
198
The Antebellum
era (1813–1858) saw a minor diminishment in the optimism for successful
passage; the Civil War era (1859–1868) was an exceptional period for
legislation.
199
It was during the Gilded Age era (1869–1886), suggests Latham, that we
began to witness the use of bill introductions for political grandstanding.
200
This period, as well as the subsequent Populist-Progressive era (1887–1916)
194
Several states have taken this action, including Idaho, S. Con. Res. 129, 55th Leg., 1st
Reg. Sess. (Idaho 1999) (withdrawing the petition and urging other states to do the same);
see also 146 CONG. REC. 1449 (Feb. 23, 2000) (acknowledging the Idaho Senate Concurrent
Resolution), North Dakota, S. Con. Res. 4028, 57th Leg. Assemb., Reg. Sess. (N.D. 2001)
(rescinding the petition and urging other states to take such action); see also 147 C
ONG. REC.
5905 (Apr. 6, 2001) (acknowledging the North Dakota Senate Concurrent Resolution), and
Utah, H.R.J. Res. 15, 54th Leg., Gen. Sess. (Utah 2001) (withdrawing the application to
Congress); see also 147 C
ONG. REC. 19,025 (Oct. 9, 2001) (acknowledging the Utah House
Joint Resolution). To read more on the possibility of a runaway convention, see Michael
Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-
Seventh Amendment, 103
YALE L.J. 677, 742 (1993).
195
See Stephen Skowronek, Twentieth-Century Remedies, 94 B.U. L. REV. 795, 796
(2014) (manuscript at 2) (explaining how “progressives responded to the crisis of
governability in their day by redeploying the institutions embedded in the constitutional
framework”).
196
Darren R. Latham, The Historical Amendability of the American Constitution:
Speculations on an Empirical Problematic, 55
AM. U. L. REV. 145 (2005).
197
Id. at 187-88.
198
Id. at 254.
199
Id.
200
Id.
1060 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
was characterized by pessimism about amendment success.
201
During the
Suffrage-Prohibition era (1917–1930), amendment optimism reached its peak,
given the recent and contemporaneous successful Article V efforts.
202
Today,
however, during the Modern era (1931–2004), there is a deep pessimism about
the prospect of successfully using Article V, and the increasing frequency of
amendment bill introductions is attributable to legislative credit seeking and
related parochial purposes.
203
Latham observes that “[a]mendability’s demise
is reflected not only in the careerism-dependent character of amendment
proposing activity, but also in the decline in number of already proposed
amendments making it out of Congress to be ratified by the states.”
204
He
stresses the point that “the amendment-passing rate during the Constitution’s
first eighty years was dramatically higher than the rate for the last 136.”
205
Constitutional change nonetheless still occurs in the United States, only not
using the procedures entrenched in Article V.
II. T
HE METHODS OF INFORMAL AMENDMENT
The decline and disuse of Article V as a vehicle for constitutional
amendment suggests that Article V may have itself changed informally since
its creation. The challenge, however, is to explain how Article V has changed,
if indeed it has changed at all. One possibility is that Article V has been
informally amended. Constitutions, and the provisions entrenched within them,
change in many ways. From alteration to replacement and from judicial
interpretation to legislative action, written constitutions are generally subject to
modification through both formal and informal amendment procedures.
206
Whereas formal amendment refers to textual constitutional change made in
conformity with the amendment rules entrenched in the text of the constitution,
informal amendment refers to a change in meaning without a corresponding
change in text, as Heather Gerken explains, “the alteration of constitutional
meaning in the absence of textual change.”
207
Has Article V been informally
amended such that it is no longer useable?
A. Formal and Informal Amendment
Both formal and informal amendment preserve continuity in the
constitutional regime and are therefore distinguishable from discontinuous
201
Id.
202
Id.
203
Id. at 255.
204
Id.
205
Id.
206
See Francesco Giovannoni, Amendment Rules in Constitutions, 115 PUB. CHOICE 37,
37 (2003).
207
Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response
to Our Undemocratic Constitution,
55 DRAKE L. REV. 925, 929 (2007).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1061
forms of constitutional change,
208
namely revision or revolution.
209
To borrow
from John Rawls’ definition of amendment, both formal and informal
amendment “adjust basic constitutional values to changing political and social
circumstances, or . . . incorporate into the constitution a broader and more
inclusive understanding of those values.”
210
Whether and when the constitution
208
See ANDREW ARATO, CIVIL SOCIETY, CONSTITUTION, AND LEGITIMACY 90 (2000)
(“[C]omplete legal discontinuity involving both a change of legal orders and the utilization
of another method of constitutional change . . . has political effects that are not present when
legal change is continuous. When an order is changed outside its own rules of change, there
is inevitably a legal hiatus . . . .”).
209
Scholars distinguish between constitutional amendment and constitutional revision.
The basic distinction holds that constitutional amendment conforms to the constitutional text
and existing framework of government whereas constitutional revision implicates more far-
reaching changes that depart from the presuppositions of the constitutional order. See
M
URPHY, supra note 154, at 498 n.4 (distinguishing “amendment” from “revision”); Mark
E. Brandon, The “Original” Thirteenth Amendment and the Limits to Formal Constitutional
Change, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL
AMENDMENT, supra note 4, at 215, 221-36 (exploring the limits of constitutional change,
including amendments and constitutional interpretation); Bruce E. Cain & Roger G. Noll,
Malleable Constitutions: Reflections on State Constitutional Reform, 87 TEX. L. REV. 1517,
1520 (2009) (distinguishing between constitutional amendments and constitutional
revisions); William L. Marbury, The Limitations upon the Amending Power, 33 HARV. L.
REV. 223, 225 (1919) (stating that an amendment is a change or addition within the “lines of
the original instrument”);
Howard Newcomb Morse, May an Amendment to the Constitution
Be Unconstitutional?, 53 DICK. L. REV. 199, 199 (1949) (suggesting that an informal
amendment would not be unconstitutional “for the reason that it had not been integrated into
the Constitution and, therefore, had not become an amendment”).
But see JOHN R. VILE,
CONSTITUTIONAL CHANGE IN THE UNITED STATES 73-76 (1994) (observing that the line
separating different forms of constitutional change is not always clear). Constitutional texts
may also distinguish amendment from revision. See, e.g., B
UNDES-VERFASSUNGSGESETZ [B-
VG] [CONSTITUTION] BGBI No. 1/1930, art. 144 (Austria) (distinguishing procedures for
amendment and revision); C.E., B.O.E. nn. 166-68, Dec. 29, 1978 (Spain) (establishing
different procedures for amendment and revision). Though the distinction appears nowhere
in the text of the United States Constitution, it is prominent in the text of state constitutions.
See Gerald Benjamin, Constitutional Amendment and Revision, in 3 S
TATE CONSTITUTIONS
FOR THE
TWENTY-FIRST CENTURY 177, 178 (G. Alan Tarr & Robert F. Williams eds., 2006)
(observing that twenty-three state constitutions expressly reference the term “revision”).
210
JOHN RAWLS, POLITICAL LIBERALISM 238 (1993). For Rawls, it is unconstitutional to
use Article V to do more than adjust, incorporate, or remedy. Id. at 238-39. Where a
constitutional amendment goes beyond these limitations, the Court could legitimately
declare that it “fundamentally contradicts” America’s constitutional tradition because “the
successful practice of its ideas and principles over two centuries place restrictions on what
can now count as an amendment, whatever was true at the beginning.” Id. at 239. Rawls’
paradigmatic illustration is an effort to repeal the First Amendment. Id. at 238-39. Rawls
explains, “Should that happen . . . that would be constitutional breakdown, or revolution in
the proper sense, and not a valid amendment of the constitution.” Id. at 239 (footnote
omitted).
1062 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
has been amended consequently reveals itself to be a complex inquiry not
easily answered by a quick tally of the intervening additions to the
constitutional text since the constitution’s original adoption.
211
The study of
constitutional amendment must therefore account for amendments made both
formally pursuant to formal amendment rules and informally by political
actors, social movements, and institutional dynamics often in response to the
difficulty of completing a formal amendment.
1. The Forms of Informal Amendment
There are many methods of informal amendment. We can understand
informal amendment as occurring when, as Tom Ginsburg and Eric Posner
define it, “political norms change, or courts (possibly responding to political
pressures) ‘interpret’ or construct the constitution so as to bring it in line with
policy preferences.”
212
Perhaps the best way to conceptualize informal
amendment is Heather Gerken’s hydraulics metaphor: Where the natural path
of formal amendment is difficult or blocked, alternative paths open to political
actors to achieve its functional equivalent.
213
As David Strauss has argued,
informal amendment has been more common and perhaps even more important
than formal amendment: “The most important changes to the Constitution –
many of them, at least – have not come about through changes to the text. They
have come about either through changes in judicial decisions, or through
deeper changes in politics or in society.”
214
The difference between formal and
informal amendment is not that one is law and the other is not; it is, as Stephen
Griffin suggests, that the former is textually entrenched law while the latter is
not.
215
Major methods of informal amendment include judicial interpretation,
national legislation, executive action, implication, and convention.
211
Sanford Levinson, How Many Times Has the United States Constitution Been
Amended? (A) <26; (B) 26; (C) 27; (D) >27: Accounting for Constitutional Change, in
R
ESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL
AMENDMENT, supra note 4, at 13, 25-32.
212
Tom Ginsburg & Eric A. Posner, Subconstitutionalism, 62 STAN. L. REV. 1583, 1600
(2010).
213
Gerken, supra note 207, at 927. But we should not assume that informal amendment
will not occur in democracies where formal amendment is not difficult. See Michael Besso,
Constitutional Amendment Procedures and the Informal Political Construction of
Constitutions, 67 J. POL. 69, 75 (2005) (explaining that informal political construction of
constitutions takes place in the states regardless of the “relative ease of state constitutional
amendment”).
214
Strauss, supra note 149, at 905.
215
STEPHEN M. GRIFFIN, LONG WARS AND THE CONSTITUTION 16 (2013).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1063
2. Conventional Forms of Informal Amendment
Informal amendment occurs most frequently by judicial interpretation.
216
When national courts of last resort in states with strong-form judicial review
interpret the constitution in new ways, they effectively “amend” it by changing
its meaning with binding effect.
217
Donald Lutz has found that informal
amendment by judicial interpretation is more likely to occur in countries with a
low rate of formal amendment and a long-established constitution. In his study
of over thirty constitutional states, Lutz concludes that the combination of
amendment rate and constitutional longevity in Australia, Finland, Ireland, and
the United States suggest frequent informal amendment by judicial
interpretation as a supplement to the formal amendment process.
218
His data
also suggest that Denmark, Germany, Iceland, Italy, and Japan are nearing the
point where they might see higher levels of activity in informal amendment by
judicial interpretation.
219
Article V has not been informally amended in this
way.
Informal amendment may also result from national legislation. In the United
States, the theory of superstatutes illustrates, with important limitations,
220
how
216
It is difficult, as Ruth Gavison suggests, to distinguish informal amendment from
interpretation. Ruth Gavison, Legislatures and the Phases and Components of
Constitutionalism, in T
HE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE
CONSTITUTIONAL STATE 198, 203 (Richard W. Bauman & Tsvi Kahana eds., 2006)
(suggesting that legal effect may stem as much from interpretation as from amendment
because “for all practical purposes, the law is what the authoritative interpreters say it is”).
All forms of constitutional interpretation would result in an informal amendment were they
treated as binding. One significant difference between informal amendment by judicial
interpretation and judicial interpretation itself may turn on the level at which the
interpretation occurs. Whereas judicial interpretation by the national court of last resort is
binding and may therefore be understood as an informal amendment, judicial interpretation
by other courts is generally not nationally binding and is therefore less identifiable as an
informal amendment.
217
See EDWARD SCHNEIER, CRAFTING CONSTITUTIONAL DEMOCRACIES 225-26 (2006)
(“The seemingly formidable powers of the courts to interpret the Constitution (and thus
‘amend’ it) has been the subject of considerable debate.”).
218
LUTZ, supra note 38, at 178. Interestingly, however, in Finland informal amendment
by interpretation has occurred more as a result of executive and legislative interpretation
than judicial interpretation. See JAAKKO HUSA, THE CONSTITUTION OF FINLAND: A
CONTEXTUAL ANALYSIS 221 (2011).
219
LUTZ, supra note 38, at 178.
220
The theory of superstatutes is limited insofar as we may identify a superstatute only
retrospectively, not prospectively. For example, assume Congress passes a statute by a
simple majority at Time 1. At Time 2, the statute has achieved status as a superstatute as a
result of its public salience. Further assume that, at Time 3, Congress passes another statute
by a simple majority, amending either expressly or by implication a provision in the
superstatute passed at Time 1. On these facts, the theory of superstatutes cannot tell us
whether the latter-passed statutory amendment is valid, whether the superstatute will be
judged impervious to the latter-passed amendment, or whether courts would ignore the
1064 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
national legislation may informally amend a constitution. William Eskridge, Jr.
and John Ferejohn have shown that certain statutes, passed in the normal
course of the legislative process, achieve quasi-constitutional status as a result
of four criteria: first, they introduce a new principle or policy whose effect is
substantial; second, the new principle or policy becomes foundational or
axiomatic to political actors; third, they result from long and deliberative
public discussions and substantial reflection by political actors; and fourth,
they require some elaboration from bureaucrats and judges in order to achieve
their intended effect.
221
Superstatutes, write Eskridge and Ferejohn, “acquire
their normative force through a series of public confrontations and debates
over time and not through a single stylized dramatic confrontation.”
222
Superstatutes shape and are themselves influenced by social norms.
223
Superstatutes, as Eskridge and Ferejohn argue, may occasionally change
constitutional meaning.
224
They do so by trumping ordinary legislation and by
establishing “foundational principles against which people presume their
obligations and rights are set, and through which interpreters apply ordinary
law.”
225
Superstatutes remain inferior to constitutional law and may be
repealed by simple legislation, but their public salience induces legislators and
judges to afford them special solicitude.
226
Eskridge and Ferejohn suggest that
the Sherman Antitrust Act of 1890, the Civil Rights Act of 1964, and the
Endangered Species Act of 1973 are examples of superstatutes.
227
Beyond the
United States, superstatutes may include the Canada Health Act,
228
the
Canadian Bill of Rights of 1960,
229
and the United Kingdom Human Rights
Act of 1998.
230
Article V has not been informally amended in this way, either.
statutory amendment. The theory of superstatutes, moreover, could not have predicted
whether the statute passed at Time 1 would earn the status of superstatute at Time 2, or
whether the statute passed at Time 3 would itself become a superstatute. Nonetheless, the
theory of superstatutes is helpful to conceptualize how national legislation may informally
amend the written constitution.
221
Eskridge, Jr. & Ferejohn, supra note 6, at 1230-31.
222
Id. at 1270.
223
Id. at 1276.
224
Id. at 1216.
225
Id.
226
Id. at 1216-17 & n.3 (“Although they do not exhibit the super-majoritarian features of
Article V constitutional amendments and are not formally ratified by the states, the laws we
are calling super-statutes are both principled and deliberative and, for those reasons, have
attracted special deference and respect.”).
227
Id. at 1231-46.
228
Canada Health Act, R.S.C., 1985, c. C-6.
229
Canadian Bill of Rights, S.C. 1960, c. 44.
230
United Kingdom Human Rights Act of 1998, c. 42; see also Eskridge, Jr. & Ferejohn,
supra note 6, at 1265 (“The pre-Charter Bill of Rights in Canada, the Human Rights Act of
1977 in the District of Columbia, and the new Bill of Rights adopted in the United Kingdom
are examples of [superstatutes].”).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1065
Informal amendment may also follow from executive action.
231
One
prominent example in the United States concerns the treaty-making power,
which has been amended informally as a result of presidential action.
232
The
treaty-making power is entrenched in the Constitution and confers upon the
President the “power, by and with the Advice and Consent of the Senate, to
make Treaties, provided two thirds of the Senators present concur.”
233
It
therefore requires the Senate to confirm the President’s execution of a treaty.
Yet it has recently become common practice for the President to bypass Senate
confirmation by entering into sole-executive agreements that achieve the same
functional ends as treaties.
234
The President typically invokes his independent
constitutional powers, the scope of which is undefined in the United States
Constitution.
235
In 1945, Myres McDougal and Asher Lans argued that sole-executive
agreements had become “interchangeable” with treaties ratified under the
treaty-making power.
236
Freed of the need for Senate ratification, Presidents
have increasingly exploited the power to enter into sole-executive agreements.
231
For instance, it has been argued that Canada could grant Quebec its independence as
an Associate State informally, without a formal amendment, using the executive actions of
delegation and treatymaking. See R.A. Mayer, Legal Aspects of Secession, 3
MANITOBA L.J.
61, 65-66 (1968-1969) (“Though formal constitutional amendment must be rejected as a
practical method of achieving secession, it may be possible for Quebec to achieve the same
result by informal methods.”).
232
GRIFFIN, supra note 215, at 30 (suggesting that the evolution of the President’s treaty-
making powers constituted “an amendment-level change to the constitutional order outside
the Article V amendment process”).
233
U.S. CONST. art. II, § 2.
234
See Joseph P. Tomain, Executive Agreements and the Bypassing of Congress, 8 J.
INT’L L. & ECON. 129, 129-32 (1973) (“The use of executive agreements, through which the
President may conclude international accords without consideration by the Senate, has
proved increasingly troublesome for the Congress.”).
235
See Hanna Chang, International Executive Agreements on Climate Change, 35
C
OLUM. J. ENVTL. L. 337, 341-42 (2010) (“The key unknown with respect to sole executive
agreements is the precise scope of the President’s independent power in foreign affairs.”);
Brannon P. Denning & Michael D. Ramsey, American Insurance Association v. Garamendi
and Executive Preemption in Foreign Affairs, 46 W
M. & MARY L. REV. 825, 916-19 (2004)
(“[S]ome executive agreements are within the constitutional power of the President.”);
Kevin C. Kennedy, Congressional-Executive Tensions in Managing the Arms Control
Agenda – Who’s in Charge?, 16 N.C.
J. INT’L L. & COM. REG. 15, 18-23 (1991) (“Other
authorities have suggested just . . . that the President possesses the independent
constitutional power to conclude an international agreement on any subject touching upon
foreign relations with another country.”). See generally Anne E. Nelson, From Muddled to
Medellin, A Legal History of Sole Executive Agreements, 51 A
RIZ. L. REV. 1035 (2009)
(tracing and evaluating the history of sole-executive agreements).
236
Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or
Presidential Agreements: Interchangeable Instruments of National Policy: I, 54 YALE L.J.
181, 187-88 (1945).
1066 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
By one count, Presidents entered into roughly thirty international agreements
without Senate confirmation in the Constitution’s first fifty years,
237
but in the
last fifty years they have entered into approximately 15,000 sole-executive
agreements.
238
The Supreme Court has generally approved this presidential
practice, rejecting arguments that sole-executive agreements circumvent the
constitutional requirement of Senate consent.
239
We can therefore understand
the rise of sole-executive agreements as an informal amendment to the
treatymaking power.
War powers have also been amended informally by executive action. The
President’s modern powers as Commander-in-Chief exceed what the founding
generation anticipated, perhaps most notably with respect to the President’s
power to engage the United States in war without seeking a congressional
declaration of war or even congressional approval,
240
even though the
constitutional text authorizes only Congress to declare war.
241
In a detailed
analysis published in 1987 using congressional and State Department reports,
one estimate concluded that the President had sent troops or arms abroad 137
times without congressional approval – and often in the face of congressional
disapproval – from the adoption of the Constitution through 1970.
242
237
WALLACE MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS 4 (1941).
238
Michael P. Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54
UCLA L. REV. 309, 319 (2006).
239
See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (“At a more specific
level, our cases have recognized that the President has authority to make ‘executive
agreements’ with other countries, requiring no ratification by the Senate or approval by
Congress, this power having been exercised since the early years of the Republic.”); Dames
& Moore v. Regan, 453 U.S. 654, 682-87 (1981) (finding that the President has “some
measure of power to enter into executive agreements without obtaining the advice and
consent of the Senate”); United States v. Pink, 315 U.S. 203, 229-30 (1942); United States
v. Belmont, 301 U.S. 324, 330-31 (1937). Bradford Clark has argued that constitutional
history and structure contradict the Supreme Court’s modern view of sole-executive
agreements. Bradford R. Clark, Domesticating Sole Executive Agreements, 93 V
A. L. REV.
1573, 1654 (2007).
240
LEVINSON, supra note 113, at 22.
241
U.S. CONST. art. I, § 8, cl. 11 (authorizing Congress to “declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures on Land and Water”). The
Constitution is not without ambiguity about whether any single institution over another
possesses the warmaking power. Although it confers upon Congress the power to declare
war, to “raise and support Armies,” id. art. I, § 8, cl. 12, to “provide and maintain a Navy,”
id. art. I, § 8, cl. 13, and to “make Rules for the Government and Regulation of the land and
naval Forces,” id. art. I, § 8, cl. 14, the Constitution also states that “[t]he President shall be
commander in chief of the Army and Navy of the United States,” id. art. II, § 2. The
Supreme Court has acknowledged that the Constitution entrenches several provisions
“implementing the Congress and President with powers to meet the varied demands of war,”
notably the provisions above. See Lichter v. United States, 334 U.S. 742, 755 (1948).
242
See L. Gordon Crovitz, Presidents Have a History of Unilateral Moves, WALL ST. J.,
Jan. 15, 1987, at 22.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1067
Presidential practice has therefore created a precedent for executive action.
Courts and Congress have both been involved in creating this informal
amendment: courts have reinforced these broad presidential powers in foreign
affairs and Congress has often failed to object in a meaningful way to these
assertions and actions of presidential power.
243
These changes amount to “an
amendment-level change to the constitutional order outside the Article V
amendment process,”
244
argues Stephen Griffin, who points to President Harry
Truman’s decision to commit troops to the 1950 Korean War as the key marker
in the new presidential power to initiate war.
245
Article V has not been
informally amended by executive action.
3. Unconventional Forms of Informal Amendment
Written constitutions may alternatively be amended informally by
implication. Informal amendment by implication occurs when a latter-passed
constitutional provision or amendment supersedes a provision or amendment
without expressly overturning it. Paul Clark frames this concept in terms of
“practical incompatibility,” where “the basic principles underlying two
provisions are incompatible” and when “although the language of both
243
DAVID A. STRAUSS, THE LIVING CONSTITUTION 121 (2010) (explaining that these
expansions of presidential authority have been established “by the evolution of traditions
and practices outside the courts: presidents exercised more and more power, and Congress,
and the society generally, did not object”). Arthur Schlesinger has traced the history of the
rise of presidential war powers and the corresponding decline of congressional war powers.
See A
RTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 35-204 (2004). In the face of
presidential ascendancy in war powers, Congress passed the War Powers Resolution in
1973, over President Richard Nixon’s veto, to try to reassert its role in war making. See War
Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified as amended at 50
U.S.C. §§ 1541-1548 (2012)). Many have questioned the effectiveness of the War Powers
Resolution. See, e.g., J. Brian Atwood, The War Powers Resolution in the Age of Terrorism,
52 S
T. LOUIS U. L.J. 57, 60-74 (2007) (suggesting that Congress may be “politically
intimidated in times of crisis” and unable to examine the case for war carefully); Geoffrey S.
Corn, Clinton, Kosovo, and the Final Destruction of the War Powers Resolution, 42 W
M. &
MARY L. REV. 1149, 1174-82 (2001) (arguing that the War Powers Resolution “has not had
the impact the enacting Congress intended”); Edward Keynes, The War Powers Resolution:
A Bad Idea Whose Time Has Come and Gone, 23 U.
TOL. L. REV. 343, 356 (1992)
(explaining that Presidents have found ways to circumvent the War Powers Resolution);
John Patera, War Powers Resolution in the Age of Drone Warfare: How Drone Technology
Has Dramatically Reduced the Resolution’s Effectiveness as a Curb on Executive Power, 33
H
AMLINE J. PUB. L. & POL’Y 387, 403-17 (2012) (observing that an analysis of the War
Powers Resolution “tells a story of consistent technical violations by the executive branch”);
John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under
the Constitution After Desert Storm, 40 N
AVAL L. REV. 85, 91-100 (1992) (“Five procedural
flaws central to the proper functioning of the Resolution account for its being circumvented
or ignored with impunity by the executive branch.”).
244
GRIFFIN, supra note 215, at 30.
245
Id. at 70-77.
1068 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
provisions would permit each to exist without contradiction, one would limit
the other so much that for all practical purposes they are regarded as
incompatible.”
246
Writing in 1930, Selden Bacon developed the thesis that the
Tenth Amendment had informally amended Article V by implication in that its
reservation of undelegated powers to the states or the people
247
divested
Congress of the power to select the method by which states ratify formal
amendment proposals.
248
As Bacon argues:
The Tenth Amendment, in short, said: If the Federal Government wants
added direct powers over the people or the individuals rights of the
people, it must go to the people to get them; the power to confer any such
added direct powers over the people and their individual rights is reserved
to the people; and the right, at the option of Congress, to get such added
powers from any other source, is wiped out.
249
The Supreme Court of the United States has itself recognized that the
Constitution may be informally amended by implication. In a case concerning
state sovereign immunity, the Court held that Fourteenth Amendment
informally amended the Eleventh Amendment by implication: “We think that
the Eleventh Amendment, and the principle of state sovereignty which it
embodies . . . are necessarily limited by the enforcement provisions of Section
5 of the Fourteenth Amendment.”
250
The Court continued:
In that section Congress is expressly granted authority to enforce “by
appropriate legislation” the substantive provisions of the Fourteenth
Amendment, which themselves embody significant limitations on state
authority. When Congress acts pursuant to § 5, not only is it exercising
legislative authority that is plenary within the terms of the constitutional
grant, it is exercising that authority under one section of a constitutional
Amendment whose other sections by their own terms embody limitations
on state authority.
251
The case concerned whether a class action against a State could recover
retroactive retirement benefits as compensation for that State’s employment
discrimination on the basis of gender.
252
The Court weighed the relationship
between the Eleventh Amendment and the Fourteenth Amendment, and
concluded that the latter-passed Fourteenth Amendment had implicitly limited
the Eleventh Amendment. Though the Eleventh Amendment states that “[t]he
246
Paul A. Clark, Limiting the Presidency to Natural Born Citizens Violates Due
Process, 39 J. MARSHALL L. REV. 1343, 1345 (2006).
247
U.S. CONST. amend. X.
248
Selden Bacon, How the Tenth Amendment Affected the Fifth Article of the
Constitution, 16
VA. L. REV. 771, 782 (1930).
249
Id.
250
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
251
Id.
252
Id. at 448.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1069
Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State,”
253
the Fourteenth Amendment authorizes Congress to authorize private suits like
class actions against states acting in violation of civil rights.
254
The Fourteenth
Amendment has therefore been interpreted as having amended the Eleventh
Amendment informally. This form of informal amendment not does explain
the decline and disuse of Article V.
Written constitutions are also susceptible to informal amendment by
convention. This occurs when a political practice is adopted and repeated, and
gradually hardens over time into what Michael Gerhardt calls “non-judicial
precedent.”
255
One example concerns whether the Vice President of the United
States becomes President upon the President’s death, or whether the Vice
President simply assumes the powers and duties of the presidency as a
caretaker. The text of the United States Constitution is ambiguous on this
point. The relevant clause states that:
[I]n the case of the removal of the President from Office, or of his Death,
Resignation, or inability to discharge the Powers and Duties of the said
Office, the same shall devolve on the Vice President, and the Congress
may by Law provide for the Case of Removal, Death, Resignation, or
Inability, both of the President and Vice President, declaring what Officer
shall then act as President, and such Officer shall act accordingly, until
the Disability be removed, or a President shall be elected.
256
The textual ambiguity in the Succession Clause is twofold. First, in stating
that “the same shall devolve on the Vice President,” the Constitution is unclear
as to whether it means to refer to the “said Office,” in which case the
succeeding Vice President would become President, or alternatively to “the
Powers and Duties of the said Office,” in which case the Vice President would
only exercise the powers and duties of the presidency without actually
becoming President. The second ambiguity relates to the second half of the
Clause, specifically whether the command that the succeeding Vice President
“shall act accordingly” as President means that the Vice President becomes
only the acting President instead of the official President. This interpretative
difference was important, as Akhil Amar writes, because it determined whether
an ascending Vice President would be called “President,” and whether he
would receive a presidential salary, which was both higher than the Vice
President’s own and immune from congressional amendment, in turn freeing
253
U.S. CONST. amend. XI.
254
Fitzpatrick, 427 U.S. at 456.
255
MICHAEL J. GERHARDT, THE POWER OF PRECEDENT 111 (2008).
256
U.S. CONST. art. II, § 1, cl. 6.
1070 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
him to execute presidential powers without fear of congressional diminishment
of his pay.
257
Vice President John Tyler resolved the ambiguity upon the death of
President William Harrison in 1841. In what amounted to an inaugural address
in the days following Harrison’s passing, Tyler took the view that he had
become President: “For the first time in our history the person elected to the
Vice-Presidency of the United States, by the happening of a contingency
provided for in the Constitution, has had devolved upon him the Presidential
office.”
258
The office, not merely its powers and duties, had devolved upon
him. He swore the oath of office as President, identified himself in his
signature as “President,” and moved into the White House.
259
Tyler faced some
opposition to his claim to the presidency; some referred to him as “Acting
President” and challenged his action.
260
But he considered himself President
and conducted himself as such.
The Tyler precedent resolved the question left open by the constitutional
text.
261
Subsequent Vice Presidents followed the Tyler precedent and
proclaimed themselves President when they succeeded to the presidency.
262
As
Joel Goldstein writes, “[a]lthough Tyler’s claim probably contradicted the
Framers’ intent, later Vice Presidents who found themselves in that situation
embraced his position and ultimately the Tyler precedent became accepted as
constitutional reality.”
263
Over a century later, in 1967, the Twenty-Fifth
Amendment constitutionalized the Tyler precedent by textually entrenching the
until then unwritten rule that “in the case of the removal of the President from
office or of his death or resignation, the Vice President shall become
President.”
264
As subsequent Vice Presidents followed the Tyler precedent and
257
Akhil Reed Amar, Applications and Implications of the Twenty-Fifth Amendment, 47
HOUS. L. REV. 1, 18 (2010).
258
John Tyler, Inaugural Address (Apr. 9, 1841), in 1 INAUGURAL ADDRESSES OF THE
PRESIDENTS OF THE UNITED STATES FROM WASHINGTON TO LINCOLN 179, 179-80 (John
Vance Cheney ed., 1904).
259
Joel K. Goldstein, The New Constitutional Vice Presidency, 30 WAKE FOREST L. REV.
505, 521 (1995).
260
See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS 178-79 (2005) (referring to
New York Democrat John McKeon’s argument that Tyler was no more than a Vice
President exercising presidential power); John D. Feerick, Presidential Succession and
Inability: Before and After the Twenty-Fifth Amendment, 79
FORDHAM L. REV. 907, 918-19
(2010) (explaining that members of the Whig Party referred to Tyler as the “Acting
President”).
261
Joel K. Goldstein, Taking from the Twenty-Fifth Amendment: Lessons in Ensuring
Presidential Continuity, 79 FORDHAM L. REV. 959, 966 (2010).
262
Akhil Reed Amar, Presidents Without Mandates (with Special Emphasis on Ohio), 67
U. CIN. L. REV. 375, 379 (1999).
263
Goldstein, supra note 261, at 966.
264
U.S. CONST. amend. XXV, § 1.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1071
treated it as binding convention, their actions effectively amounted to informal
amendment.
Whether Article V has been informally amended into its current state of
decline by convention is a harder question than whether it has been informally
amended by judicial interpretation, national legislation, executive action, or
implication. We cannot yet conclude that Article V has been informally
amended by a concretized convention against its use. Whether a convention
exists turns on three criteria, as posited by Ivor Jennings: first, whether there
are precedents; second, whether political actors believe they are bound by the
rule of conduct suggested by those precedents; and third, whether there is a
reason for the rule.
265
The second criterion suggests no convention against the
use of Article V. As discussed above,
266
political actors continue to use Article
V and cannot yet be said to believe themselves bound by a rule prohibiting or
even discouraging its use. It is equally difficult to argue that there are
precedents against the use of Article V. As it stands, Article V is indeed used
quite often, albeit unsuccessfully, because the costs of introducing an
amendment proposal are not high enough to dissuade a congressperson from
introducing an amendment she knows to be futile.
B. Informal Amendment by Constitutional Desuetude
The modern interpretation of the Commerce Clause belies its founding
interpretation.
267
The United States Supreme Court’s interpretation of the
Commerce Clause has evolved since the adoption of the United States
Constitution from expansive to limited, and again from broad to narrow.
268
So
265
W. IVOR JENNINGS, THE LAW AND THE CONSTITUTION 136 (5th ed. 1967).
266
See supra Part I.B.3.
267
Whether scholars agree or disagree with the Court’s modern interpretation, they
recognize the shift in interpretation. Compare Robert H. Bork & Daniel E. Troy, Locating
the Boundaries: The Scope of Congress’s Power to Regulate Commerce, 25 HARV. J.L. &
PUB. POL’Y 849, 873 (2002) (“[O]riginal understanding [of the Commerce Clause] has been
warped and was eventually abandoned.”), with Calvin H. Johnson, The Panda’s Thumb: The
Modest and Mercantilist Original Meaning of the Commerce Clause, 13
WM. & MARY BILL
RTS. J. 1, 4 (2004) (arguing that the Commerce Clause’s changing interpretation “does not
mean that the modern Commerce Clause is illegitimate”).
268
The Commerce Clause was interpreted broadly from the founding through 1890s,
then narrowly until the mid-1930s. Compare Daniel Ball, 77 U.S. (1 Wall.) 557, 564-66
(1871) (“To the extent in which each agency acts in that transportation [of commodity], it is
subject to the regulation of Commerce.”), and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197
(1824) (interpreting commerce power broadly), with R.R. Ret. Bd. v. Alton R.R. Co., 295
U.S. 330, 374 (1935) (finding that Congress’s actions are “in no proper sense a regulation of
the activity of interstate transportation”), and Hammer v. Dagenhart, 247 U.S. 251, 273-74
(1918) (interpreting commerce power narrowly). The Commerce Clause was then again
interpreted broadly until the mid-1990s, and since then has generally been interpreted more
narrowly. Compare Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253-57
(1964) (“Congress was not restricted by the fact that this particular obstruction to interstate
1072 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
substantially different is the new interpretation that we might well be tempted
to suggest that the original Commerce Clause is today obsolete. May we
therefore describe the Commerce Clause as having fallen into desuetude? The
answer is no. We could more accurately say that the early-nineteenth-century
interpretation of the Commerce Clause is today obsolete. But the Commerce
Clause itself remains valid as a matter of law. That the Commerce Clause has
been and remains susceptible to competing constitutional interpretations does
not make it desuetudinal. On the contrary, that the Commerce Clause has been
an active battleground for constitutional contestation confirms its legal and
political relevance inasmuch as political actors continue to regard the Clause as
an important arena for framing and settling disputes. What then is
constitutional desuetude, and how does a constitutional provision ever fall into
it?
1. The Concept of Constitutional Desuetude
I have elsewhere argued that written constitutions may be informally
amended by an underappreciated method of informal amendment:
constitutional desuetude.
269
Constitutional desuetude occurs when an
entrenched constitutional provision becomes politically inoperative as a result
of sustained and conscious disuse by political actors.
270
Informal amendment
normally leaves the constitutional text unchanged and politically valid as it
supplements and clarifies constitutional meaning as a result of judicial
interpretation or national legislation, for example.
271
But informal amendment
by constitutional desuetude differs insofar as it leaves the constitutional text
unchanged, and indeed textually entrenched, but renders it politically
invalid.
272
Whether Article V has been informally amended by constitutional
desuetude is an open question.
That Article V may be susceptible to constitutional desuetude is paradoxical
insofar as Article V sets the standard against which we judge the legitimacy of
constitutional amendment in the United States. It is, as Kent Greenawalt has
argued, the “supreme criterion of law” in the United States,
273
which H.L.A.
Hart understood as the defining source of law or a measure of legal validity for
commerce with which it was dealing was also deemed a moral and social wrong.”), and
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37-39 (1937) (interpreting Commerce
Power broadly), with United States v. Morrison, 529 U.S. 598, 607-09 (2000) (finding that a
law regarding gender-motivated violence falls outside Congress’s authority under the
Commerce Clause), and United States v. Lopez, 514 U.S. 549, 567-68 (1995) (interpreting
commerce power narrowly).
269
See Albert, supra note 11.
270
Id.
271
Id.
272
Id.
273
Kent Greenawalt, The Rule of Recognition and the Constitution, 85 MICH. L. REV.
621, 659 (1987).
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1073
legal rules.
274
Yet Article V’s amendment by constitutional desuetude is not
out of the question: whereas Article V prescribes the rules for formal
constitutional change, it does not govern nor can it foreclose informal
constitutional change. The possibility therefore exists for Article V itself to
change over time by one of the many methods of informal amendment.
275
The desuetude of Article V entails at least three possible outcomes, each of
which is admittedly difficult to imagine.
276
First, it could mean that a formal
Article V amendment is impossible. Second, it could mean that the political
cost of using Article V is prohibitive. Third, it could mean that any formal
amendment achieved through Article V is invalid as a matter of law. Although
I ultimately conclude below that Article V is not desuetudinal, these
problematic outcomes are not the reasons why. First, the desuetude of Article
V would not mean that an Article V amendment is impossible; it would mean
only that political actors had foreclosed to themselves the use of Article V.
Second, Article V’s desuetude would not result only from the prohibitive
political cost of invoking Article V; political actors would also have to openly
repudiate Article V for public-regarding reasons. Third, the desuetude of
Article V would not necessarily mean that an Article V amendment is legally
invalid; it could instead mean that a court would rule that its use is legally valid
and judicially enforceable but politically unpalatable and publicly illegitimate.
This has occurred in Canada with respect to the disallowance and reservation
powers, as I have shown in theorizing constitutional desuetude.
277
Constitutional desuetude is distinguishable from other forms of
constitutional obsolescence, as I have argued.
278
For example, it is different
from dormancy, which we may use to characterize the reserve powers of
dismissal and dissolution held by the Governor General in Australia – powers
that are by design intended to be used only rarely.
279
It is also distinguishable
274
H.L.A. HART, THE CONCEPT OF LAW 103 (2d ed. 1994).
275
Article V itself does not seem susceptible to informal amendment by judicial
interpretation. The Supreme Court has suggested that Article V disputes are nonjusticiable
political questions. See Coleman v. Miller, 307 U.S. 433, 454 (1939). The Supreme Court
has also held, in the context of challenges to the constitutionality of the Eighteenth and
Nineteenth Amendments, that the text of Article V is the sole source of authority on the
constitutionality of formal amendments. As long as a formal amendment adheres to the
procedural strictures specified in Article V, it is valid and binding. See Leser v. Garnett, 258
U.S. 130, 136 (1922) (“This Amendment is in character and phraseology precisely similar to
the Fifteenth. For each the same method of adoption was pursued. One cannot be valid and
the other invalid.”); Nat’l Prohibition Cases, 253 U.S. 350, 386 (1920) (stating that the
proposed Amendment, after going through the proper ratification procedure, becomes “a
part of the Constitution, and must be respected and given effect the same as other provisions
of that instrument”).
276
I am grateful to Mark Tushnet for helping me think through this analysis.
277
See Albert, supra note 11.
278
Id.
279
Id.
1074 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
from supersession, which occurs when a textually entrenched constitutional
provision is superseded, though not textually removed, by a latter-entrenched
provision, as was the case with the Eighteenth and Twenty-First
Amendments.
280
We may also differentiate constitutional desuetude from what
results when courts invoke the political question doctrine with respect to an
entrenched provision, for example, the Guarantee Clause, which has remained
under- or unenforced by the political branches.
281
Constitutional desuetude
should also be distinguished from informal amendment by implication, which
changes the meaning of an entrenched constitutional provision but does not
altogether extinguish that provision.
282
We should also separate constitutional
desuetude from constitutional atrophy, which applies in regimes with either
written or unwritten constitutions; constitutional desuetude applies only to
written constitutions.
283
2. A Framework for Constitutional Desuetude
Constitutional desuetude may occur in any constitutional state. For instance,
it has been suggested in passing, though not fully explored, that constitutional
desuetude may have occurred in France and Singapore. With regard to the
French Constitution, Article 41 authorizes the Constitutional Council to
resolve a standstill in the legislative process between the president of either
legislative chamber and the government as to the constitutionality of a
proposed bill or a legislative amendment.
284
In the ten years following the
Constitution’s adoption, from 1959 to 1968, the Council intervened eight
times; since then the Council has intervened only three times, prompting Alec
Stone Sweet to state that Article 41 has “has for all practical purposes fallen
into desuetude.”
285
As to Singapore, Thio Li-ann suggested in 1997 that the
practice of appointing nonconstituency members of parliament,
286
which is
intended to ensure at least nominal opposition in Parliament, had fallen into
desuetude even though “[i]t remains in the constitution.”
287
(The practice is
not, however, desuetudinal. Steve Chia Kiah Hong was appointed to the role in
2002; there are currently three sitting Non-Constituency Members of
Parliament.
288
In an interesting twist, Li-ann was herself named a Nominated
Member of Parliament in 2007.
289
)
280
Id.
281
Id.
282
See supra Part II.A.3.
283
See Albert, supra note 11.
284
1958 CONST. art. 41 (Fr.).
285
ALEC STONE SWEET, THE BIRTH OF JUDICIAL POLITICS IN FRANCE 57 (1992).
286
CONSTITUTION OF THE REPUBLIC OF SINGAPORE art. 39 (1965).
287
Thio Li-ann, The Elected President and the Legal Control of Government: Quis
Custodiet Ipsos Custodes?, in MANAGING POLITICAL CHANGE IN SINGAPORE: THE ELECTED
PRESIDENCY 100, 106 (Kevin Tan & Lam Peng Er eds., 1997).
288
The website of the Parliament of Singapore contains archival records of former
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1075
While constitutional desuetude may occur in any constitutional state, it is
noteworthy only where the regime is governed by a real, not a sham,
constitution. We expect sham constitutions to reflect a significant disjuncture
between the constitutional text and reality;
290
the opposite is true of
constitutions anchored in polities respectful of both the rule of law and the
attendant constitutional duties and obligations they impose on political
actors.
291
Democratic states will usually exhibit a gulf between the formal
written constitution and the real political constitution, but it will be much
narrower than what we observe in authoritarian states.
292
Although
authoritarian regimes adopt written constitutions that look indistinguishable
from democratic constitutions, they primarily serve public relations purposes.
As Karl Loewenstein writes, “[s]o deeply implanted is the conviction that a
sovereign state must possess a written constitution that even modern
autocracies feel compelled to pay tribute to the democratic legitimacy inherent
in the written constitution.”
293
Where evidence reveals that constitutional
desuetude may have occurred in France and Singapore, the French illustration
would be of greater analytical value given that France ranks higher in terms of
democratic outcomes than Singapore,
294
and it has been shown to more closely
align its political practices with its constitutional text than Singapore.
295
That
members of Parliament. Steve Chia Kiah Hong served as a Non-Constituency Member of
Parliament from 2002 to 2006. See 10th Parliament, PARLIAMENT OF SING., http://www.par
liament.gov.sg/history/10th-parliament (last visited Feb. 15, 2014), archived at http://perma
.cc/43CB-XZWN. Today, there are three Non-Constituency Members of Parliament. See
List of Constituencies, P
ARLIAMENT OF SING., http://www.parliament.gov.sg/list-constituen
cies#Non-Constituency_Member_of_Parliament (last visited Feb. 15, 2015), archived at
http://perma.cc/VN6F-E94R.
289
See Member’s Profile: Thio Li-ann, PARLIAMENT OF SING., http://www.parliament
.gov.sg/mp/thio-li-ann (last visited Feb. 15, 2014), archived at http://perma.cc/P7QC-NED6.
290
Richard Albert, The Expressive Function of Constitutional Amendment Rules, 59
MCGILL L.J. 225, 262 (2013).
291
Sham constitutions are in no way “constitutional” apart from “the most nominal sense
of the term” because they are only a “convenient cloak for naked power.” K
ARL
LOEWENSTEIN, POLITICAL POWER AND THE GOVERNMENTAL PROCESS 136 (2d ed. 1965).
292
See JAN-ERIK LANE, CONSTITUTIONS AND POLITICAL THEORY 50-51 (2d ed. 1996)
(discussing the use of “camouflage constitutions” in authoritarian systems).
293
LOEWENSTEIN, supra note 291, at 136.
294
ECON. INTELLIGENCE UNIT, DEMOCRACY INDEX 2012: DEMOCRACY AT A STANDSTILL
4-5 (2013) (ranking France and Singapore twenty eighth and eighty first, respectively).
295
David Law and Mila Versteeg have quantified the degree to which constitutions
achieve their promises with respect to rights. See David S. Law & Mila Versteeg, Sham
Constitutions, 101
CALIF. L. REV. 863, 886 (2013). They have shown that the French
Constitution is more overperforming and less underperforming than the Singaporean
Constitution. Compare id. at 949 (reporting France’s underperformance score as 0.917), and
id. at 943 (reporting France’s overperformance score as 0.944), with id. at 945 (reporting
Singapore’s underperformance score as 0.714), and id. at 941 (reporting Singapore’s
overperformance score as 0.438). Overperformance measures “the extent to which countries
1076 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
the French Constitution is an actual constraint on political actors would make
French constitutional desuetude well worth studying.
The study of constitutional desuetude in the United States likewise meets
our criteria. The United States Constitution is a binding constitutional text
situated within a democratic polity. One possible example of constitutional
desuetude involves the constitutional requirement that only a “natural born
citizen” is eligible for the presidency.
296
Peter Spiro has argued that the
declining significance of citizenship could lead “to the possible evisceration of
the natural born qualification through practice,”
297
creating an inconsistency
between political practice and the constitutional text. Spiro anticipated the
possibility of the desuetude of the Natural Born Citizen Clause in light of the
general political consensus reached by political actors on former Republican
presidential candidate Senator John McCain’s eligibility for the presidency.
298
McCain was the Republican nominee for President in 2008. Born in 1936 in
the Canal Zone, he arguably became a citizen only a year later as a result of a
statute retroactively granting citizenship to any child of a U.S. citizen parent
born in the Canal Zone after 1904.
299
That political actors resolved his
eligibility “outside the courts,” as Spiro writes, means that “[i]f non-judicial
actors – including Congress, editorialists, leading members of the bar, and the
People themselves – manage to generate a constitutional consensus, there isn’t
much that the courts can do about it.”
300
A similar consensus may crystallize
around the presidential eligibility of Senator Ted Cruz, a United States Senator
from Texas who was born in Canada to an American mother.
301
The continuing
overperform in the sense of respecting rights that are absent from their constitutions.” Id. at
897. In contrast, underperformance measures “the extent to which countries fail to uphold
the rights found in their constitutions.” Id.
296
U.S. CONST. art. II, § 1, cl. 5.
297
Peter J. Spiro, McCain’s Citizenship and Constitutional Method, 107 MICH. L. REV.
IMPRESSIONS 42, 46 (2008), http://www.michiganlawreview.org/assets/fi/107/spiro.pdf (last
visited Feb. 15, 2014), archived at http://perma.cc/MD4A-LUL6.
298
Id. at 42.
299
Id.
300
Id.
301
See, e.g., Aaron Blake, Can Ted Cruz Run for President? And Should He?, WASH.
POST (Aug. 19, 2013, 12:45 PM), http://www.washingtonpost.com/blogs/the-fix/wp/2013/03
/20/supporters-push-for-ted-cruz-for-president, archived at http://perma.cc/LFR4-U28C;
Michael Catalini, Is Canadian-Born Ted Cruz Eligible to Run for President?, N
AT’L J.
D
AILY (May 1, 2013), http://www.nationaljournal.com/politics/is-canadian-born-ted-cruz-
eligible-to-run-for-president-20130501, archived at http://perma.cc/3BU8-95XX; David A.
Graham, Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S.,
A
TLANTIC (May 1, 2013, 1:23 PM), http://www.theatlantic.com/politics/archive/2013/05/yes
-ted-cruz-can-be-born-in-canada-and-still-become-president-of-the-us/275469, archived at
http://perma.cc/JN7N-HJ2G; Ed Whelan, Ted Cruz, Originalism, and the “Natural Born
Citizen” Requirement, N
AT’L REV. ONLINE (May 7, 2013, 12:39 PM), http://www.national
review.com/bench-memos/347616/ted-cruz-originalism-and-%E2%80%9Cnatural-born-citi
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1077
evolution of the Natural Born Citizen Clause could eventually amount to an
informal amendment by constitutional desuetude pursuant to which the Clause
remains textually entrenched but with a meaning transformed informally yet
nonjudicially.
The question whether a constitutional provision has been informally
amended by constitutional desuetude is answerable with reference to criteria
about what desuetude entails, how it occurs, and whose acceptance it requires.
Building on Stephen Griffin’s five-part test for identifying an informal
amendment,
302
I have proposed a seven-part framework for identifying and
anticipating constitutional desuetude.
303
Constitutional desuetude occurs when,
first, a constitutional reordering is prompted informally by the sustained disuse
of an entrenched constitutional provision and, second, that provision becomes
expressly repudiated by political actors.
304
Third, the repudiated rule is
replaced by a new unwritten constitutional rule, which sets the standard for
future conduct by political actors.
305
Fourth, the new unwritten rule assumes a
binding quality despite its informal development and nonentrenchment.
306
Fifth, political actors self-consciously follow the new rule, believing
themselves bound by their predecessors’ intentionally engineered
constitutional reordering.
307
Sixth, the new constitutional rule permeates the
legal and political classes’ conventional understanding of the constitution.
308
Finally, despite the nontextual entrenchment of a new rule that is contrary to
the repudiated rule, the repudiated rule remains textually entrenched.
309
I have
illustrated the phenomenon of constitutional desuetude with reference to the
Canadian Constitution, where I have most clearly observed it.
310
3. The Desuetude of Article V?
From 1876 to 1950, Congress’ failure to pass major civil rights legislation
pursuant to its powers under the Reconstruction Amendments did not
extinguish its power to do so. As Akhil Amar explains: “Unsuccessful efforts
zen%E2%80%9D-requirement, archived at http://perma.cc/GH58-BUFM.
302
Stephen M. Griffin, Constituent Power and Constitutional Change in American
Constitutionalism, in T
HE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND
CONSTITUTIONAL FORM 49, 49-66 (Martin Loughlin & Neil Walker eds., 2007). Griffin’s
distinction between formal and informal constitutional change categorizes formal
amendment and judicial interpretation as formal changes, and other changes occurring
through the political process as informal changes. Id. at 52.
303
See Albert, supra note 11.
304
Id.
305
Id.
306
Id.
307
Id.
308
Id.
309
Id.
310
Id.
1078 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
to exercise an explicit power do not always – indeed, do not generally – cause
the power to disappear from the document in form or in substance.”
311
Unsuccessful use alone is insufficient to establish constitutional desuetude.
This helps us understand why Article V survives when measured against our
seven criteria for constitutional desuetude. The twenty years during which
Article V has remained unsuccessfully used has not yet reached the point of
sustained disuse. Indeed, although Article V has not been successfully used, it
remains often invoked for parochial purposes not intended to proceed beyond
simply introducing an amendment proposal for narrow advertising, credit
claiming, or position taking objectives. This suggests that political actors have
not yet repudiated Article V as valid constitutional rule. In the absence of
Article V’s repudiation, no new rule has emerged as the new standard for
political conduct, which in turn means that we cannot identify a new norm-
generative and binding standard, nor can we discern self-conscious behavior by
political actors to follow the new rule.
The rise of informal amendment as a political alternative to Article V has
not yet replaced Article V as a legally valid vehicle for constitutional
amendment. Informal amendment, most notably by judicial interpretation, has
only supplemented the Constitution’s textually entrenched methods of
constitutional change. We therefore cannot conclude that the decline and
disuse of Article V has resulted from its repudiation and consequent
replacement by a new unwritten rule of informal amendment. Informal
amendment may have become the norm in the United States and it may indeed
set a standard for future conduct by political actors, but its frequency has not
made Article V obsolete. Without the constitutional reordering that is
necessary for constitutional desuetude, it is not yet arguable that a new rule of
conduct – a new rule of recognition, as I have suggested in describing what
occurs when a constitutional provision has been informally amended by
desuetude
312
– has permeated the conventional understanding of the
Constitution. Article V remains entrenched in the constitutional text, rarely
successfully used but nevertheless often invoked, and therefore still seen by
political actors as authoritative.
For now, it is too soon to state that Article V has been informally amended
by constitutional desuetude. Although Article V has not been used to entrench
a formal amendment for a generation, Article V is still useable, it remains
politically, morally, and sociologically legitimate, and it continues to be used
by political actors. But its usability, legitimacy, and use may change in the
years ahead. The case for the constitutional desuetude of Article V will grow
stronger as Article V remains unused to entrench a new written amendment
and as constitutional change continues to occur exclusively pursuant to
informal amendment, most notably through judicial interpretation. Should
political actors join constitutional scholars in repudiating Article V as broken
311
AMAR, supra note 148, at 354.
312
Albert, supra note 11.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1079
or unwise, the case will grow even stronger, and could begin to consolidate a
new conventional understanding of the Constitution that Article V is unusable
and illegitimate. The opposite scenario nonetheless remains possible: Article V
could once again become a viable tool for constitutional change.
313
Even Bruce
Ackerman concedes that political actors could once again turn to Article V to
amend the Constitution formally.
314
CONCLUSION
Writing in 1919, William Marbury suggested that amending the United
States Constitution may have become too easy.
315
At the time, the United
States was in the midst of a progressive revolution that had successfully
entrenched four formal amendments from 1913 to 1920,
316
one authorizing a
national income tax,
317
another requiring direct senatorial elections,
318
another
imposing prohibition,
319
and the fourth granting the franchise to women.
320
The
frequency of formal amendment surprised Marbury because, as he wrote,
“[u]ntil lately, it appears never to have occurred to any one in this country that
there need be any fear that the Constitution could be too readily amended.”
321
Marbury continued: “[T]he prevailing impression was that it was almost
impossible to amend [the Constitution], except by something in the nature of a
revolution.”
322
The difficulty of formally amending the Constitution had
become a matter of public concern, so much so that prominent intellectuals
convened a group called the Committee on the Federal Constitution,
headquartered the organization in New York, and gave itself the mission of
designing and advocating new and less difficult methods of formal
amendment.
323
The prevailing impression soon became that Article V might
not be difficult enough.
324
313
One scholar argues that “[r]eports of Article V’s demise have been greatly
exaggerated” and that “the amending provision has more recently enjoyed something of a
resurrection, both in Congress and among legal academics.” A. Christopher Bryant, The
“Irrevocable” Thirteenth Amendment, 26
HARV. J.L. & PUB. POL’Y 501, 502 (2003).
314
See Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1811 (2007)
(suggesting that certain circumstances “could force the protagonists into a desperate effort to
crank up the antiquated state-centered machinery of Article V”).
315
See Marbury, supra note 209, at 223.
316
See VILE, supra note 209, at 21-22.
317
U.S. CONST. amend. XVI.
318
Id. amend. XVII.
319
Id. amend. XVIII (repealed 1933).
320
Id. amend. XIX.
321
See Marbury, supra note 209, at 223.
322
Id.
323
Jos. R. Long, Tinkering with the Constitution, 24 YALE L.J. 573, 573 (1915).
324
Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social
Movement Perspective, 150
U. PA. L. REV. 297, 319 n.57 (2001).
1080 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:1029
The conventional view of Article V has changed once again. Today, Article
V is widely seen as too difficult. It is described as an “iron cage with regard to
changing some of the most important aspects of our political system.”
325
That
the perception and use of Article V remains ever evolving suggests that Article
V is not necessarily fated to the disuse we have attributed to it as a matter of
either its original constitutional design or the contemporary polarization of
American politics. It has been roughly only twenty years since its last
successful use.
326
But Article V has in its history lain dormant for longer
periods of time. For sixty years, from 1804 to 1864, Article V was not
successfully used to entrench a formal amendment. Then came three formal
amendments in rapid succession from 1865 to 1870.
327
Again for forty years
from 1871 to 1912, a shorter period but still twice as long as our current period
of Article V disuse, there was no formal amendment pursuant to Article V.
Then, in 1913, two formal amendments were ratified
328
and two more came to
pass by the end of 1920.
329
It therefore remains unclear whether the present-
day disuse of Article V reflects a larger recalibration in the rules of
constitutional change or just another commonly recurring period of sustained
disuse.
The informal amendment by constitutional desuetude of Article V remains a
possibility. The study of constitutional change would benefit from further
study into the theory of constitutional desuetude with respect to its costs and
remedies. As I have explored elsewhere, constitutional desuetude threatens to
weaken the rule of law, to complicate the judicial role in constitutional
interpretation and in responding to political actors’ claims of constitutional
authority, and to muddle our understanding of written constitutionalism.
330
But
it also holds promise to better align the written constitution with the real
constitution, to compel political actors to keep current the constitutional text,
and to bring needed nuance to what it means to describe a constitution as
written.
Perhaps the most interesting question that follows from constitutional
desuetude is the most difficult to resolve: What should result from
constitutional desuetude? Answering this question requires us to interrogate
related issues, namely whether courts should sever desuetudinal constitutional
provisions from the constitutional text, whether political actors should create
an easier and expedited formal amendment process reserved exclusively for
repealing desuetudinal constitutional provisions, or whether constitutional
325
LEVINSON, supra note 113, at 165.
326
The Twenty-Seventh Amendment was ratified on May 7, 1992. See U.S. CONST.
amend. XXVII.
327
The Fifteenth, Fourteenth, and Thirteenth Amendments were ratified in 1970, 1968,
and 1865, respectively. See id. amend. XV; id. amend. XIV; id. amend. XIII.
328
See id. amend. XVII; id. amend. XVI.
329
See id. amend. XIX; id. amend. XVIII.
330
See Albert, supra note 11.
2014] CONSTITUTIONAL DISUSE OR DESUETUDE 1081
democracy can tolerate constitutional desuetude without a text-oriented
remedy. A rich agenda awaits further research as political actors confront the
reality that the constitutional text can sometimes be informally amended by
constitutional desuetude.
