Unamendments

The Constitution of the United States provides, in Article V, for its own amendment, but not every proposal for change is properly an "Amendment to this Constitution" within the meaning of Article V. Rather, there are substantive limitations on what can be accomplished as a constitutional amendment. The term, "amendment," refers, as it did at the time of ratification, not to making any kind of change to the existing document, but to fine-tuning what is already in place. As the debates over the adoption of the Bill of Rights make clear, an amendment is not the pursuit of something new, but an intervention, shown by experience to be necessary, in order to keep the Constitution on its original course. Some proposals for change so undermine the original document that they cannot be considered amendments, and therefore cannot be achieved through the procedures of Article V. Any proposal to alter the Constitution through Article V requires evaluating not only the merits of the proposal but whether it is a proper use of the amendment process. To say that the amendment provision of Article V is limited is not to conclude that the Constitution contains entrenched provisions that can never be changed and that it is therefore undemocratic. Americans may indeed alter each and every provision of their Constitution, only they cannot do it through Article V. Modifications that are more than mere amendments to the existing Constitution require higher lawmaking: the articulation of new principles by the citizenry in a period of constitutional politics, the kind that occur following a revolution or some other seismic event that alters our course going forward. One such seismic event was, of course, the Civil War, which did revisit and change the document that was ratified in 1788. The Reconstruction amendments revised the 1788 Constitution in fundamental respects, putting in place a new and very different regime. Significantly, these changes were not achieved through, and far exceeded, what would have been possible by the use of the amendment procedures of Article V. Accordingly, the Civil War altered Article V itself, putting in place new limits on the kinds of changes that could subsequently be accomplished as constitutional amendments. One particular transition stands out. Under the 1788 Constitution, no modification that undermined the autonomy of the states with respect to slavery could be accommodated as a constitutional amendment. Yet once Article V was reconstructed, no constitutional amendment could permit states to create within their borders sub-classes of people like slaves. This Article explores these changes and considers some recent proposals in light of the Reconstruction limits on proper amendments. The upshot of this Article's approach is to restore the early understanding of Article V and to reject the view expressed by modern commentators that the Constitution should be kept largely immune from amendment. Amending the Constitution is a serious undertaking and not easily done but it does not have the kind of significance as fundamentally changing the system of government after a revolution or a civil war. Amending the Constitution is more serious and difficult than ordinary legislation but it is much less than a transformative act by We the People. Article V allows for, indeed invites, citizens to examine in an ongoing fashion the details of their constitutional arrangements, and to correct those things that do not serve well the basis design. Rather than keep Article V locked away and beyond the reach of citizens, it is more faithful to the Constitution's design and to the project of self-government to make available the amendment procedure for its deliberately limited uses.