Vol. 24 No. 10 (October 2014) pp. 510-512PERFECTING THE CONSTITUTION: THE CASE FOR THE ARTICLE V
AMENDMENT PROCESS by Darren Patrick Guerra. Lanham, MD: Lexington
Books. 2013. Hardback $75.00. ISBN: 978-0-7391-6838-7.
Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University, shoff@desu.edu.
Author Darren Patrick Guerra, an associate professor of political science at Biola University (CA), acknowledges that this book is the manifestation of his “deep interest in American Constitutionalism and its preservation of ordered liberty for over two hundred years” (Preface, ix). Equating the future of the Constitution with the retention of Article V procedures, he seeks to defend its precepts by examining the etiology of amendment provisions in initial state constitutions, probing the manner by which amendment features were integrated into the Constitution via Article V, and by presenting and challenging various criticisms lodged against the current amendment process. He uses documentary evidence from constitutions and ratifying conventions as well as relaying the views of leaders at various junctures in American history who confronted the need to define, defend, or decry amendment provisions.
Part I of the book is labeled Creation of Article V; it encompasses four of nine chapters. Chapter 1 depicts how the unwritten, evolutionary English constitution furnished no formal means for change, resulting in informal shifts of power that occurred without awareness or agreement of Americans. Guerra makes an analogy between Article V and the Song of Sirens from the story of Odysseus in that they both possess the traits of self-discipline, prudence, and wisdom. Establishment of an official amendment procedure prevents abuse of power and maintains popular sovereignty. Chapter 2 meticulously outlines how new state constitutions dealt with the amendment question. Perhaps surprisingly, amendment provisions were found in just seven of thirteen original state constitutions. But half was better than none, as an unwritten constitution “hid the powers of government in a swirling and confusing mix of precedents, traditions, decisions, and fragmented documents…”(p. 54).
Chapter 3 examines how the unreasonable requirement of state unanimity for amendments crippled the Articles of Confederation and helped the momentum toward replacement. Because amendment features were a part of the Virginia Plan at the Constitutional Convention of 1787, they were seen as a legitimate if not difficult method for change. Article V of the Constitution specifies a two-step procedure for amendments. But like the other six articles of the Constitution, its approval at the Philadelphia convention did not guarantee enactment: the assent of nine state ratifying conventions was necessary. Special attention is given to the how Article V fared in such meetings in Connecticut, Massachusetts, Virginia, New York, and North Carolina. The author notes the importance of creating a balance between simple majority vote and unanimity for amendments. Chapter 4 discusses how [*511] individual leaders regarded the Article V amendment process. For instance, fellow Virginians James Madison and Thomas Jefferson debated the best way to formulate the approval stage of the amendment process. And another Virginian, first president George Washington, referred to amendment principles three times in his 1796 Farewell Address, according to Guerra. Overall, Guerra finds that the views of “key founders show that Article V was not merely an afterthought, but a vital aspect of the Constitution that was fully engrained in the fabric of American politics and American Constitutionalism” (p. 129).
Part II of the text is titled Criticism of Article V and contains the remaining five chapters. In Chapter 5, the author describes increasing challenges to the consensus, which typified the Founding era. In particular, the rise of a competing constitutional vision—Progressive thought—“brought an emphasis on direct democracy and harnessing governmental power to address growing social concerns; in this context Article V became seen as an overly rigid and formalistic means of altering the nation’s fundamental law” ( p. 135). In subsequent chapters, the arguments of Progressives and contemporary opponents of Article V are delineated and debated.
To the criticism that the Article V amendment process is too difficult (Chapter 6), the author finds that the procedure was utilized five times between 1913-1933. The fact that 81 percent of amendments proposed by Congress have been ratified, that a successful amendment has been added to the Constitution once every 8.2 years on average, and that the time between passage and ratification of amendments was shorter in the 20th century than in the previous century shows that the supermajority requirement is not impossible to overcome. To the charge that Article V is undemocratic (Chapter 7), the author identifies a plethora of reform proposals involving the amendment process, which were introduced in Congress from 1864 to 1928. He rejects the national referendum alternative to Article V as inimical to American federalism and claims that Article V mitigates the tendency toward majority tyranny. To the charge that the procedure described in Article V is too formal (Chapter 9), the author presents the views of three scholars supporting that position and responds to each. Certainly, the 1937 debacle for President Franklin Roosevelt involving his plan to alter the composition of the U.S. Supreme Court demonstrated the public’s disdain for replacing Article V with ad-hoc political moves.
In the Conclusion, Guerra summarizes the previous material and clearly compares upholding Article V with maintaining the rule of law. He contends that, in the end, “scholars and citizens alike should take care to fully assess Article V, and its contribution to American Constitutionalism, before endorsing radical departures from its procedures for legitimate amendment” (p. 231).
In examining other scholarly work on the constitutional amendment process, two patterns of literature are apparent. First, some scholars and jurists focus on the amendment process itself. John Vile’s study of constitutional amendments includes a historical survey and a comparison with other techniques for revision. Former U.S. Supreme Court Justice John Paul Stevens (2014) identifies six specific suggestions for [*512] constitutional amendment, encompassing areas such as the death penalty, campaign finance, sovereign immunity, and gun control. Second, there are those writers who take diverse positions on whether the judicial or legislative branches should possess the authority to make pseudo-amendment changes to the Constitution. In his edited book, David Schultz (1998) brings together a series of essays, which discuss using the courts to achieve social change, an idea that was strongly rejected by Mark Tushnet in his book against judicial supremacy. While Michael Bamberger’s (2000) study portrays the irresponsible passage of unconstitutional legislation by Congress, Colton Campbell and John Stack’s (2001) edited book includes cases where Congress’ interpretation of the Constitution is viewed as upholding rights.
Guerra’s book, while not the first in the area of constitutional amendments, clearly takes the topic to the next level of scholarship in several ways. His research into how new state constitutions dealt with the amendment process is extraordinary, as is the specific chronology of amendment coverage at the 1787 Constitutional Convention. He effectively meshes the views of the Constitution’s framers throughout the text to justify his positions. The most apparent shortcoming is a lost opportunity to discuss in detail those constitutional amendments passed but not ratified as a way to substantiate the difficulty yet legitimacy of the Article V. However, this does not detract from the dual strengths of the study: successfully integrating an objective historical overview with a determined defense of the Constitution’s amendment process.
REFERENCES:
Bamberger, Michael A. 2000. RECKLESS LEGISLATION: HOW LAWMAKERS IGNORE THE
CONSTITUTION. New Brunswick: Rutgers University Press.
Campbell, Colton C., and John F. Stack, Jr., eds. 2001. CONGRESS CONFRONTS THE
COURTS: THE STRUGGLE FOR LEGITIMACY AND AUTHORITY IN LAWMAKING. Lanham, MD: Rowman and Littlefield Publishers, Inc.
Schultz, David. 1998. LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang Publishing, Inc.
Stevens, John Paul. 2014. SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE
THE CONSTITUTION. New York: Little, Brown, and Company.
Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton:
Princeton University Press.
Vile, John. 1994. CONSTITUTIONAL CHANGE IN THE UNITED STATES: A COMPARATIVE STUDY OF THE ROLE OF CONSTITUTIONAL AMENDMENTS, JUDICIAL INTERPRETATIONS, AND LEGISLATIVE AND EXECUTIVE ACTIONS. Westport, CT: Praeger Publishers.
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©Copyright 2014 by the author, Samuel B. Hoff.
