Editor’s Note: This is the second of a three-part series that examines the constitutional role of the States in utilizing Article V of the Constitution as a means of self-correction.
Article V and the States’ Constitutional Power pt. 2 – ELP Strategic Development Manager Jack McPherson
What are States, how do they operate, and what are the modes through which Constitutional amendments can be made?
If the people exercise constitutional agency through their States, then neither mode of amendment in Article V is a procedural oddity. It can be said therefore that Article V is one of the Constitution’s most direct acknowledgments that the States are legitimate participants in the Federal order.
Article V states the following:
“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.”
The word “or” matters. The Constitution does not provide one proper amendment mechanism and one inferior workaround. It provides two lawful modes of proposal, both of which remain subject to the ratification by three-fourths of the States.
This is why Article V is best understood as the Declaration’s “alter” principle made constitutional:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
The Declaration announces the people’s right to “alter or abolish” a government that has become destructive of its proper ends. Article V does not exhaust that ultimate natural right, nor does it belong to the revolutionary side of the Declaration’s language. It belongs to the ordinary and constitutional side: alteration without abolition; correction without rupture.
Madison made this point in Federalist 43, observing that “useful alterations” would be suggested by experience and that the Constitution therefore needed a mode for introducing them. Hamilton made the same prudential point in Federalist 85: “experience must guide” constitutional labor, and the “feeling of inconveniences” must correct inevitable mistakes. These arguments from the Federalists, while being made to encourage ratification of the Constitution in toto are equally forceful for asserting Article V’s supremacy in the contemporary era. Even if the prudential mechanism advocated for here was only necessary in 1787, it would not preclude Article V from being necessary in any later year, otherwise it would not have been included or constructed such as it was.
Article V, therefore, allows the people, acting through their States, to correct structural disorders in the Federal order without abandoning the Union (in the exact same spirit as the ratification of the Constitution was called for 239 years ago).
This account of Article V must not be confused with the disordered theories of state sovereignty that helped tear the Union apart in years past. The contrast is not between State power and Federal power simply considered. The contrast is between constitutional State participation within the Union and extra-constitutional State sovereignty against the Union. Abraham Lincoln understood this distinction with clarity:
“This necessity had not been overlooked; but had been provided for, as well as might be, in the notable argument of “squatter sovereignty,” otherwise called “sacred right of self government,” which latter phrase, though expressive of the only rightful basis of any government, was so perverted in this attempted use of it as to amount to just this: That if any one man, choose to enslave another, no third man shall be allowed to object.
That argument was incorporated into the Nebraska bill itself, in the language which follows: “It being the true intent and meaning of this act not to legislate slavery into any Territory or state, not exclude it therefrom; but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.”
Then opened the roar of loose declamation in favor of “Squatter Sovereignty,” and “Sacred right of self government.”
Here Lincoln did not articulate that self-government is false but rather demonstrated that the language of self-government becomes false when used to deny the personhood and natural rights of another human being—an unconstitutional act, speaking both politically as well as metaphysically, and therefore an unsanctioned and illicit act for Federal governments.
The same principle governs the question of State power. For all of its prevailing teachings, the Civil War did not teach that State power is illegitimate. It rather taught that no State power is legitimate when exercised against the Constitution’s supremacy or the Declaration’s account of equal human dignity.
Here is where the limiting principle laid upon the enumerated powers of the Federal government also serves as the limiting boundary to the “numerous and indefinite” powers of the States. As such, it can be said that while Federalism permits real diversity in State laws, customs, and prudential judgments, it does not permit one State to organize its political life or erect institutions upon a denial of the human person.
Article V is therefore not a continuation of State voluntaristic contractualism. It is rather the constitutional opposite. Voluntaristic contractualism asserts State sovereignty against the Union, while Article V gives the people, acting through their States, a lawful means of correcting the Federal order while remaining inside the Constitution.