Amendment: A Right of the People Comment on Jill Lepore’s The Philosophy of Amendment

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Constitutional amendment has become irrelevant to most Americans of the twenty-first century—even to lawyers and leaders pursuing major systemic change.[1] The most recent amendment was added to the U.S. Constitution in 1992, and that amendment was actually written two centuries prior.[2] It has been nearly half a century since the last time Congress adopted an amendment and sent it to the states for ratification, which failed.[3] What remains of the philosophy of amendment without any practice of it?

Jill Lepore’s The Philosophy of Amendment suggests that the Constitution’s openness to future change—its philosophy of amendment—­was essential to the Founding Fathers’ agreement to the Constitution in 1787. The Founding Fathers’ constitutional design, embracing an eighteenth-century philosophy of progress, included a clock-like mechanism for its own future repair and improvement.[4] Without it, the Constitution might not have been ratified.[5] The amendment mechanism persuaded the Constitution’s framers and ratifiers to agree to a constitution that was imperfect and likely to need future repairs. That mechanism made law what it otherwise might not have been. This Comment unearths the tension between the Founding-era philosophy of amendment detailed by Lepore and the amendment process imposed on future generations by Article V of the U.S. Constitution.

This Comment shall argue that the actual possibility of amendment remains crucial to the continuing legitimacy of any constitutional order. Beyond the historical fact that the possibility of future change is what persuaded the Founding Fathers to agree to the Constitution, an amendment rule is a legitimating pillar of every written constitution. The openness to lawful change is what indicates the tacit consent of the governed when actual consent has not occurred and is not possible. Constitutions, by design and intention, outlive their framers and ratifiers—the people who signed their names to the document or voted to approve it at a particular historical moment. To endure across generations, a constitution’s continued transgenerational legitimacy must depend upon consent that is not actual in that sense but inferred or assumed. Whether tacitly or hypothetically, the governed people presumably consent to the constitutional order that shapes their destinies when they have the legal ability to change the government but have not pursued change.

But Article V does not empower the people to amend the Constitution; it reserves the power primarily to institutions—Congress and state legislatures—which may become oppressive or ineffective. Thus arises a puzzle for a philosophy of amendment that depends on the people’s continued consent. How does the Constitution maintain legitimacy if the people who agreed to the Constitution in 1787 did so on the understanding that they could change it through the institutions that they assumed would represent them? Furthermore, women, Native people, and enslaved Black people did not actually consent and were not represented at the Founding. Because they were disfranchised, they had no say in the institutions that were given the power of amendment, even though they were subject to those institutions’ power.

This Comment proceeds in five Parts. Part I derives the philosophy of amendment from the right to alter and abolish tyrannical government that was forcefully articulated in the Declaration of Independence and developed into law in the Constitution adopted in 1787. Part II examines how the Constitution, including Article V, came to be accepted as legitimate and binding law, even though it did not follow existing law applicable to constitutional amendment. That process illuminates the philosophy of amendment that motivated Article V. Part III contrasts the philosophy of amendment with the political reality of Article V’s adoption, to which the effort to preserve slavery in the South was central. Part IV examines the exclusion of the people from the Article V process in relation to that political reality to question the assumption that Article V is necessary to legitimize amendments seeking the democratic empowerment of the people who were excluded from consent at the Founding. Part V explains how the philosophy of amendment and Article V are in tension and shows how constitutional veneration has hidden that tension.

I. The Right to Alter or Abolish Tyranny

Lepore notes that “Article V was the triumph of the convention; without it, the Constitution would not have been ratified.”[6] Why was the amendment rule so important to the Founders’ agreement to adopt the Constitution? Lepore highlights the framers’ belief that “to form a government by consent is to reserve to the people both the right to abolish it, less by the violence of revolution than by the more peaceable path of amendment.”[7] Indeed, the need for consent of the governed to legitimize a government and the instruments that create it was the core animating principle of the American Revolution as articulated in the Declaration of Independence. Its main phrases are well known:

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.[8]

The Declaration is not cited as a source of law today in the same way that the Constitution of 1787 is, but the principles it articulated shaped the Constitution’s philosophy of amendment. The Declaration justified armed resistance to the existing government (the Crown) based on the simple proposition that people subject to governmental power must consent to it for that power to be “just” or legitimate. This theory was derived from John Locke’s account of consent by naturally free, equal, and independent men as the foundation of legitimate political power.[9]

Armed violent resistance to unjust government followed from this theory. The next lines of the Declaration read:

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, so as to them shall seem most likely to effect their Safety and Happiness.[10]

The Declaration understood the people to retain a right to revolution, which they may exercise in situations where the existing government destroys the very purpose of government—the protection of life, liberty, safety, and happiness. As Danielle Allen has noted, at least some of the Declaration’s drafters had considered reconciliation with Britain[11]—negotiating new terms of government short of a full-blown revolution through the threat and actual use of deadly force. Thus, it was not only the people’s right to “abolish” and “institute new Government” (which was the path taken) proclaimed by the Declaration that gave birth to the United States but also their right to “alter” any government ineffective at protecting life, liberty, safety, and happiness.

The Declaration that gave birth to the United States proclaimed these two essential features needed to legitimize the exercise of governmental power over the people, which survived in the Constitution that became the legal foundation of the nation: the consent of the governed and the right of the people to alter their government. The right to alter or amend existing government is particularly important when the government violates unalienable rights and when the government no longer serves its only legitimate purpose: the safety and happiness of the people.

An immediate puzzle emerges from these first lines of the Declaration, particularly as the “unalienable rights” to life, liberty, and the pursuit of happiness are described as rights divinely authorized and naturally belonging to “men” who “are created equal.” The authors of the Declaration meant White men, not enslaved Africans or women. They meant White men when they noted that “Governments are instituted among Men,” to secure those rights of men. But they used the word “People” to refer to those who held the right to alter, abolish, or institute new governments. If the legitimacy of power stemmed from the “consent of the governed,” the Declaration did not draw boundaries around who of the “governed” must “consent.” Women, Native people, and enslaved Black people were undeniably governed. Did they have to consent in order for the government to be legitimate? Were they part of the “People” with a right to alter and abolish the government, even if they were not “men” who held unalienable rights? A decade prior to the Civil War, Frederick Douglass gave a speech to a women’s antislavery society, titled “What to the Slave is the Fourth of July?” He asked: “Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us?”[12]

The two legitimizing principles that form the basis of the Declaration of Independence—the consent of the governed and the right to revolution—must survive in any constitution to legitimize any polity that endures beyond those who agreed to its formation. A constitution remains legitimate on the assumption that the people governed by it continue to consent to it, even though the people who wrote it and originally consented to it are long gone. That continued consent cannot be real unless a genuine choice is possible. Only if the people of here and now retain an actual ability to alter (or even abolish) their constitutionally prescribed government can we infer continued consent by the people from the absence of amendment or revolution.

This problem of continued consent may explain why every written constitution contains an amendment rule. In fact, as Jessica Bulman-Pozen and Miriam Seifter point out, the vast majority of state constitutions explicitly assert the right of the people to alter or abolish their government.[13] Whether a constitution spells out that right or not, the possibility of change makes it plausible that those who did not consent at the beginning are at least tacitly consenting now. If people can change the constitution but choose not to, it appears reasonable to conclude that they sufficiently consent to what they have not altered.[14]

At the same time, more plausible conclusions can be inferred from the absence of revolution. Under what circumstances can it be plausibly inferred that every new generation of citizens consents to eighteenth-century arrangements? If, for instance, a government becomes autocratic and develops an effective ability to prevent and thwart revolutions, or merely to thwart amendments that most people want, the absence of revolt cannot imply consent of the governed and therefore legitimate constitutional government. Thus, it is not only the presence of an amendment rule but also one that is realistically available to the people that is necessary to lend continuing legitimacy to the constitution and the government it establishes. Akhil Amar has argued that if the Declaration’s principles are taken seriously, the amendment rule articulated in Article V of the Constitution applies only to governments seeking to change the Constitution, not to the people themselves.[15] By the Declaration’s logic, the people always retain the right to alter or abolish their government, whether they follow Article V’s process or some other method that could be described as sufficiently democratic to regard it as an act of popular sovereignty.[16]

II. How the Philosophy of Amendment Was Shaped by the Constitution’s Troubled Path to Legitimacy

Yet, it is far from obvious that the Declaration of Independence was a legitimate act of lawmaking. On July 4, 1776, it was not much more than a written statement of facts and a list of aspirations. Allen characterizes it as “a memo that records a decision on the part of the colonists to break from Britain.”[17] But a legal memorandum, as lawyers well know, can make its way into law. As a memo, Allen notes, the Declaration “addresses itself, in a philanthropic spirit, to a candid world, inviting judgment.”[18]

But so too could the Constitution be described as a memo rather than law. At one point, the document known as the U.S. Constitution was also nothing more than a memo describing the institutions of government rather than an act of law. The process by which the Constitution was adopted and ratified did not comply with the Articles of Confederation’s amendment rule, which required every state legislature to agree to any alterations.[19]

The Declaration put forth one theory of how such a memo could become legitimate: the consent of the governed. The Constitution, through Article VII, declared that it would become law if nine out of thirteen states ratified it through conventions.[20] By choosing conventions organized in the states rather than state legislatures as the ratifiers of the Constitution, Article VII was a way of obtaining the consent of the people to the new constitution, regardless of whether its alteration of the previous constitution—the Articles of Confederation—was lawful under the previous rule. Only a supermajority of the people, rather than a unanimity of state legislatures, could legitimize a major alteration.

Was the Constitution itself a lawful amendment of the Articles of Confederation or a lawless coup? The men who wrote and agreed to the 1787 Constitution in Philadelphia naturally worried about its legitimacy. On the one hand, they knew that the law of constitutional change under the Articles of Confederation was functionally unavailable. Lepore points out that the Constitution “was written because the Articles of Confederation were technically amendable, but, for all practical purposes, not.”[21] An amendment rule requiring the unanimity of all the state legislatures might as well have prohibited amendment altogether. But change was imperative to the survival of the sovereign that had been created by the Declaration of Independence and designed as a political union by the Articles of Confederation.[22] As George Mason argued at the Convention, a new Constitution, replacing the Articles, could be consented to not by all the state legislatures, as required under the Articles’ amendment rule, but by “Assemblies to be chosen by the people for the express-purpose of ratifying it.” Mason urged that the state legislatures, in fact, had no power to ratify a new Constitution, because “they are the mere creatures of the State Constitutions, and cannot be greater than their creators.” The creators of the state constitutions were, of course, the people of each state. State legislatures had no authority to consent to a new national governmental structure or to stop the people from consenting to one. Furthermore, “[i]n some of the States the Govts. were (not) derived from the clear & undisputed authority of the people.”[23]

James Madison also expressed a variation of Mason’s view that ratification by state legislatures, by comparison to state conventions elected by the people, would destabilize the Constitution. A legal instrument ratified by legislatures was akin to a treaty, which would cease to be binding on the state parties if one state party violated it. By contrast, Madison believed, “In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation.”[24] If the people themselves ratified the Constitution, any act of exit by any subset of the people would not, in Madison’s view, nullify the obligations between those remaining. Madison’s justifications for preferring state conventions of the people over state legislatures as ratifiers of the new government raised important questions about who would be bound by the Constitution in either scenario (and who would not be). Madison’s observations thus linked the question of whether state legislatures or assemblies elected for the purpose of ratification would best validate the Constitution to the question of whether every single state-ratifying assembly would have to consent. By empowering the people in the states instead of state legislatures, the Constitution would derive its legitimacy from a principle of majoritarian democracy, rather than principles governing contractual relations between sovereigns.

Following Allen’s characterization of the Declaration of Independence, the U.S. Constitution can be regarded as a memo describing the institutions of government rather than an act of law.[25] The Constitution’s words became law only because they were followed, which enabled the institutions it described to function and govern effectively. The Declaration put forth one theory of how such a memo could become legitimate: the consent of the governed. A constitution’s provision for ratification by the people, organized in state conventions, is one way to gather and announce that consent. But a constitution that endures beyond the generation that adopted and ratified it must rely on different indicators of consent or different theories of constitutional legitimacy. Should it be assumed that the lack of revolt—including the mere absence of significant efforts at amendment or alteration—indicates tacit consent by the people of here and now sufficient to lend continuing legitimacy to the 1787 Constitution?

III. Article V’s Philosophy and Reality

The possibility of legal amendment in Article V makes it plausible to assume people who are not actively pursuing constitutional change are tacitly consenting to the constitution under which they live. Political theorist Melissa Schwartzberg has argued that the ability to change the law is a quintessential and attractive democratic trait. By contrast, she suggests that immutable laws have “a rich legacy of protecting narrow, instrumental decrees, such as treaties, and unjust laws against religious toleration and, most notoriously, slavery.”[26] In theory, the Founding Fathers acknowledged their own fallibility by setting forth a legal process by which the Constitution could be changed.[27] As Lepore notes, the philosophy of progress behind Article V went beyond acknowledging fallibility. The framers were interested not only in repairing errors but also in making necessary improvements.[28] They aspired to learn and to improve the Constitution based upon experience in the future, foreseeing the advancement of human knowledge.[29]

The amendment rule was not the subject of extended discussion until the last week of the 1787 Constitutional Convention.[30] The rule that emerged, Article V, provides four paths to amending the Constitution, none of which directly empower the people. The first method, which has been used for virtually every successful amendment to the Constitution, requires a vote by two-thirds of both houses of Congress, followed by ratifications by three-fourths of state legislatures. The people are not directly involved, other than through their votes (if there is an intervening election cycle) for or against congressional candidates and state legislators whose position on the proposed amendment is known.

The second method is a variation on the above procedure; it would require ratification by conventions in three-fourths of the states after Congress’s adoption by two-thirds vote of both houses. Conventions appear to give the people more of a voice: they may allow the people to participate directly, or at least to elect conventioneers based upon their positions on the proposed amendment. Although conventions were required under Article VII to ratify the Constitution itself, only one of the twenty-seven amendments added to the Constitution since 1787 was ratified by conventions in the states.[31] All the other twenty-six amendments were ratified by state legislatures.

The third and fourth methods of amendment would have a constitutional convention proposing amendments, called by Congress upon petition by two-thirds of the states. Amendments could be proposed by the convention and ratified by state legislatures or ratified by conventions in the states. Neither of these methods have ever been deployed successfully to date. Since Congress and state legislatures are elected for the broader task of making laws on every possible subject, a constitutional convention could give more voice to the people than the congressional path of proposing amendments. A convention could be designed to allow the people to elect delegates for the sole purpose of proposing a constitutional amendment. But under Article V, incumbents in Congress and state legislatures would still retain significant control over conventions: Article V instructs Congress to call a convention to propose amendments upon application by two-thirds of state legislatures. It does not say how the convention should be designed or convened, what procedures it can or cannot follow, or what role Congress, the states, other branches, or the people themselves would play.[32] Amendments proposed by such a convention would also be subject to ratification either by three-fourths of state legislatures or by conventions in three-fourths of the states, with Congress selecting between these two modes of ratification.

What Article V’s multiple pathways to constitutional change have in common is that each one reserves only a very minor role for the people themselves. It is Congress that proposes amendments by two-thirds vote and state legislatures which ratify amendments, unless Congress authorizes conventions in the states to ratify. A constitutional convention cannot be called by the people themselves, but only by Congress upon petition by two-thirds of the state legislatures. Throughout the nation’s history, no convention has been called and only one of the twenty-seven amendments was ratified by conventions in the states. This lack of popular participation is in stark contrast to most state constitutions, which require a referendum by the people to ratify amendments to the state constitution.[33] Over one-third of state constitutions also permit the people to propose amendments using ballot initiatives, making it possible, in the event of an amendment proposed by ballot initiative and ratified by referendum, for the people to bypass the legislative institutions entirely.[34]

Article V may have been motivated by a philosophy of progress, but it entrenched the political reality of slaveholders’ power at the Founding. Article V prohibited amendments that would permit Congress to ban the slave trade until 1808 but allowed Congress to impose limited taxes on each enslaved person imported. Even though it is now defunct, this clause was also part of Article V’s philosophy of amendment, which included some framers’ commitment to preserving slavery. That provision was added after John Rutledge of South Carolina said that he “could never agree to give a power by which the constitutional articles relating to slaves might be altered by the States not interested in that property and prejudiced against it.”[35]

Delegates from small nonslave states then saw an opportunity to protect their interests through a coalition with slaveholding states. Roger Sherman from Connecticut therefore proposed to prohibit amendments that would deprive states of their internal police power or equality within the Senate.[36] Slaveholding states needed internal police power to protect slavery, just as they needed extra power in Congress to stop national antislavery policies. Thus emerged the last clause of Article V, making its normal amendment rules inapplicable to any changes to the Senate’s core design feature, namely equal representation of every state. By stipulating that no state could be denied its equal suffrage in the Senate without its consent, Article V effectively imposed a unanimity rule for changing the equal representation of each state in the Senate. Because the Constitution required two senators for each state, any amendment allocating more senators to more populous states would depart from “equal Suffrage” and therefore require each state to consent to the diminution of its voice in the Senate.[37] Unlike the language making the slave trade unamendable, this clause did not have a time limit. The unequal representation of the people in the Senate that persists to this day—by virtue of guaranteeing each state two senators regardless of population—was made an unamendable fixture of our Constitution in Article V.

Lepore observes that “Article V was the triumph of the convention; without it, the Constitution would never have been ratified.”[38] The Constitution was imperfect to each of the Founding Fathers for different reasons—equal suffrage in the Senate for Madison, the size of the House for George Washington, the lack of a bill of rights for Mason, and nearly all of it save its prevention of anarchy for Alexander Hamilton—but the promise of future amendment sealed the deal.[39] Without Article V’s allocations of authority to the national and state legislatures, its shielding of the slave trade from future amendments until 1808, and its preservation of a malapportioned Senate in perpetuity, the Constitution may not have been signed at all.

Yet Madison warned against leaving constitutional amendments solely to national and state legislatures.[40] Mason regarded Article V as “exceptionable and dangerous,” because, as Mason warned, “[n]o amendment of the proper kind would ever be obtained by the people.”[41] Even if Congress became oppressive, Mason wrote in his margin notes, “the whole people of America can’t make, or even propose alterations to it; a doctrine utterly subversive of the fundamental principles of the rights and liberties of the people.”[42] Herein lies the legitimacy paradox of Article V. By keeping the role of the people in changing the Constitution limited to voting for legislators, Article V legitimized the Constitution by making it possible for the men at the Convention to agree to it, while simultaneously eroding any legitimacy that would come from the consent of all the people who would be governed by the Constitution.

When nine of thirteen state-ratifying conventions ratified the Constitution in 1789, the people in those conventions signed away the rights of all future Americans to amend the Constitution and to alter or abolish their government. They agreed to a constitution that could be amended only when elected legislators in Congress or the states proposed an amendment. The people’s participation in constitutional conventions to propose amendments would be at the mercy of state legislatures’ petitions to Congress. Their ratification of any amendment proposals, from Congress or from a convention called by Congress upon state legislatures’ petition, would only occur if Congress so chose. At various moments throughout the twentieth century, people tried to exert control over Congress and state legislatures in amending the Constitution.[43] State and federal courts have limited these efforts by reading Article V as representing the people’s permanent delegation of their amendment power to Congress and state legislatures through ratification of the Constitution. In Hawke v. Smith, the Supreme Court stated, “The Fifth Article is a grant of authority by the people to Congress.”[44] In an opinion written roughly contemporaneously, the Supreme Court of Maine explained:

It admits of no doubt that in the matter of amendment which is governed by article 5, the people divested themselves of all authority and conferred the power of proposal upon Congress or upon a national constitutional convention, and the power of ratification upon the state Legislature or upon state constitutional conventions. . . . Their power over amendments had been completely and unreservedly lodged with the bodies designated by article 5, and so long as that article remains unmodified they have no power left in themselves either to propose or to ratify federal amendments.[45]

Similar language about the people’s divestment of their power to amend the federal constitution has found its way into the opinions of other state supreme courts.[46] Although the Constitution was legitimized by the space it reserved for people to imagine the possibility of future change, Article V made it effectively impossible for people to pursue that future change.

IV. Who is Bound by Article V?

Article V failed to empower the people to change the Constitution in another important respect: not only did “the People” willingly cut themselves out of future amendment processes under Article V but “the People” did not include all the people who were expected to be governed. The Founding Fathers did not regard women, Native people, and enslaved Black people as eligible for the privileges of citizenship or the rights of legal personhood when they wrote “We the People.” Who did “the People” include when they ratified Article V in conventions?

At the very least, “the People” in the Preamble’s “We the People” included the White propertied men who participated in the Convention in Philadelphia and anyone they would have regarded as equal citizens. Those men voted for their representatives in Congress and state legislatures. They were the ones who agreed to an amendment process in which their elected representatives would act as institutional gatekeepers to the people’s power to amend.

When state constitutions gave already enfranchised people the right and power to amend, Lepore observes, “[t]he most significant amendment to state constitutions between 1803 and 1865 was the introduction of the word ‘[W]hite’ into constitutional texts, amendments in defiance of the philosophy of amendment.”[47] State constitutional conventions and referenda occurred frequently in the nineteenth century, and the people who participated in them disenfranchised Black people. If the federal constitution had included a more democratic amendment rule, perhaps the majority of the people authorized to vote would have used a more democratic process to exclude the people they saw as unworthy of status equal to their own. In the years before the Nineteenth Amendment was adopted by Congress and state legislatures, states held referendums on women’s suffrage, with only men eligible to vote on the proposal. In most of those referendums, these “People” rejected women’s suffrage.[48]

Were there any legal means by which the people who were disenfranchised could alter government to enfranchise them as equal citizens? Women, Native people, and enslaved Black people were not included in the “We the People” who legitimately relinquished their power to alter and abolish government to Congress and state legislatures. The people who were excluded from voting for representatives in Congress and state legislatures sought different ways of altering or abolishing governments that governed them without representing them. Women and Black people exercised the First Amendment “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[49] As Lepore recounts, Black people met in their own conventions in reaction to the contemporaneous state constitutional conventions in New York and Pennsylvania from which they were excluded.[50] In 1848, women organized the first Woman’s Rights Convention at Seneca Falls and composed the Declaration of Sentiments, which deliberately copied language from the Declaration of Independence.

The Declaration of Sentiments justified resistance to patriarchal laws and the government that imposed them. Since people could not be bound by laws that were both substantively oppressive and procedurally unrepresentative, women had a right to alter or abolish existing governments that excluded women from suffrage:

We hold these truths to be self-evident; that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed. Whenever any form of Government becomes destructive of these ends, it is the right of those who suffer from it to refuse allegiance to it, and to insist upon the institution of a 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.[51]

For the women and men who signed the Declaration of Sentiments, taking the consent of the governed seriously as a legitimating principle meant that women were situated similarly to the colonists declaring independence from Britain in 1776: they had a right to resist governments that provided no opportunity for meaningful consent or representation when those governments imposed “repeated injuries and usurpations” upon them.[52] Both the Declaration of Independence and the Declaration of Sentiments express compelling doubts about whether the laws of a government that prevent the representation of people who are governed can legitimately bind those who are excluded from the opportunity to accept or reject such laws.

Did the Constitution—and particularly its difficult procedure for future change articulated in Article V—bind the people who were excluded from personhood and citizenship at the time? If the answer to that question is no, or uncertain, another puzzle emerges. When women, Native people, and enslaved Black people demanded equal citizenship and inclusion in the polity, why should they have been expected to proceed under the Constitution’s amendment rule to realize their right to alter or abolish a government that has oppressed and excluded them? Such an expectation would be akin to viewing the slaveholder’s manumission of an enslaved person as the only legitimate means of ending slavery. Could a legitimate nonviolent transition from slavery to equal citizenship, from tyranny or oligarchy to inclusive democracy, occur only with the acquiescence of those who already hold power, no matter how unjustly? The Founding Fathers’ philosophy of amendment seems to suggest that a person who has not consented to be governed—by an enslaver or by a body that excludes her from citizenship—is not bound by that power’s command unless consent can be implied by something other than the failure to revolt.

By the Founders’ logic, the Declaration of Sentiments could have become part of the Constitution without meeting the requirements of Article V, just as the constitution they wrote became law without following the amendment requirements of Article XIII of the Articles of Confederation. Similarly, the Equal Rights Amendment (ERA), providing that equality of rights shall not be abridged on account of sex, could become a legitimate alteration to the Constitution even if it has not clearly met all the requirements of Article V.[53] The Founders’ philosophy of amendment, which this Comment has revealed to be in tension with the amendment rule that they wrote into Article V, may require openness to such possibilities.

V. Consent Through Veneration

The veneration of the U.S. Constitution has hidden the tension between the philosophy and reality of Article V. After all, the Constitution maintains its legitimacy today because the people accept it as law, not because it took an unimpeachable path to legality. The U.S. Constitution is widely venerated by the American people.[54] In Lepore’s assessment, the failure of the ERA to be ratified under Article V “rent the Constitution like a gash torn in an old and frayed garment, never mended. With the derailment of the ERA, the Constitution became, effectively, unamendable.”[55] But an unamendable constitution cannot remain legitimate, because it cannot be presumed that people consent perpetually to something they have no power to change.

Constitutional veneration supplies a story of consent that generates the impression of legitimacy. Legal philosopher H. L. A. Hart noted that most legal systems had two salient futures: “the continuity of the authority to make law possessed by a succession of different legislators, and the persistence of laws long after their maker and those who rendered him habitual obedience have perished.”[56] What distinguishes law from a mere habit of obedience is, for Hart, that people regard the rule as authoritative, because the rule has met a criterion: a “rule of recognition” that gives it the quality of obligating obedience.[57] Legitimacy did not emanate from moral duties but from how the rule came to be from the internal standpoint. It was closely related to Max Weber’s sociological understanding of legitimacy, emanating from the active belief by citizens, whether warranted or not, that a rule deserved compliance.[58]

Richard Fallon, applying these concepts of legitimacy to American constitutional history, notes, “The process by which the Constitution achieved legal legitimacy contains a large lesson about the dependence of legal legitimacy on sociological legitimacy.”[59] What that means, in practical terms, is “the Constitution is legally valid today because it is accepted as such.”[60] Legitimacy stems is not merely from the absence of revolt but the palpable embrace of the Constitution by twenty-first-century Americans and the generations that preceded them. The United States has a strong culture of constitutional veneration that goes beyond mere acquiescence to an imperfect document.[61] The Founding Fathers, and the history of the Founding era, are emphasized from elementary school through law school,[62] retold in prize-winning books,[63] glorified in modern-musical style in blockbuster Broadway musicals,[64] and reinscribed into modern constitutional jurisprudence governing everyone’s lives.[65] This continued veneration and reaffirmation are the best evidence that those who are governed still consent. Without it, the legitimacy of our Constitution would be in question.

But while most Americans venerate the Constitution, they cannot identify what the Constitution actually says. A recent study found that, while a majority of Americans know that the First Amendment protects “freedom of speech,” over 90 percent are unaware of their right to petition the government for a redress of grievances, which is also guaranteed by the First Amendment.[66]

Yet constitutional veneration is the most significant barrier to legitimizing major constitutional change undertaken without following Article V. The Constitution, including its amendment procedure stipulated in Article V, is widely accepted as legitimate, and those who never consented and were not offered inclusion in constitutional rights have always pursued the Article V path in seeking their inclusion. It is because the Constitution is not only accepted but so venerated—even by those who have been denied its protections—that it has become nearly immune to reform.

Recent studies by political scientists show that many Americans venerate the U.S. Constitution, exhibiting a reverence that goes beyond the legitimacy they would recognize in other bodies of law, such as state constitutions.[67] People are less likely to support a policy proposal framed as an amendment to the U.S. Constitution, for instance.[68] Americans’ attachment to the federal constitution goes beyond status quo bias. They embrace the Constitution as a sacred symbol of the national narrative rather than as a blueprint for government. Studies show that Americans overwhelmingly approve of the Constitution without knowing very much about it.[69] This constitutional veneration translates into the people’s relative passivity, not only with regard to amendments necessary to modernize the Constitution but also to the exercise of their First Amendment right to petition the government for redress of grievances.

The continued veneration of the Constitution by the people keeps it legitimate. In the absence of the people’s acquiescence in the twenty-first century, the continuing legitimacy of the Constitution would be tenuous at best, and its amendment rule at Article V would not be accepted as the sole legitimate path to altering or abolishing oppressive or ineffective government.

Conclusion

If the American people of the twenty-first century were to stop venerating the Constitution, the Constitution could no longer be legitimized by the consent of the governed. Article V took the right to amend away from the people and created an amendment process which followed in the footsteps of Article XIII of the Articles of Confederation in making the Constitution amendable in theory, but not in practice. In practice, over time, the U.S. Constitution became unamendable. Without venerating the Founders, drawing on their philosophy of amendment as the yardstick by which to measure the Constitution’s continued legitimacy suggests that an unchangeable constitution is an intolerable cage.

Copyright © 2024 Julie C. Suk, Professor of Law & The Hon. Deborah A. Batts Distinguished Scholar, Fordham Law School; Visiting Scholar 2023–24, Russell Sage Foundation. Many thanks to Jill Lepore and Alison LaCroix for a discussion of the ideas in this Comment at the Jorde Symposium at the University of Chicago Law School on February 15, 2024. I am grateful to Jessica Bulman-Pozen, David Pozen, and Angie Simms for detailed comments on an earlier draft. Thanks also to participants in the scholars’ seminar at the Russell Sage Foundation in May 2024 for raising helpful questions about this project.

          [1].     See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1459 (2001) (“Many people have observed that our system has other ways of changing besides formal amendments: court decisions, important legislation, or the gradual accretion of power, as in the Presidency during the twentieth century. But these are not just other ways in which the Constitution changes. It is only a slight exaggeration to say that these are the only means of change we have.”).

          [2].     U.S. Const. amend. XXVII. In 1789, James Madison drafted the Congressional Pay Amendment, which Congress adopted along with the amendments that became the Bill of Rights. However, it took 203 years for that amendment to be ratified by three-fourths of the states, completing ratification in 1992. See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 498–99 (1992).

          [3].     In 1978, Congress adopted a constitutional amendment that would have given the District of Columbia the same representation in Congress it would have if it were a state, namely two senators and at least one representative in the House. However, only sixteen states ratified the amendment before the seven-year ratification time limit elapsed in 1985, falling far short of the thirty-eight states necessary. See H.J. Res. 554, 95th Cong. (1978).

          [4].     Jill Lepore, The Philosophy of Amendment, 112 Calif. L. Rev. 2249 (2024); see also Aziz Z. Huq, The Function of Article V, 162 U. Pa. L. Rev. 1165, 1172–76 (2014) (describing Article V as a compromise between divergent accounts of government).

          [5].     Lepore, supra note 4.

          [6].     Id.

          [7].     Id.

          [8].     The Declaration of Independence para. 2 (U.S. 1776).

          [9].     See John Locke, Second Treatise, Ch. VIII, in Two Treatises of Government (Peter Laslett ed., 1988). Locke’s Second Treatise was thoroughly consulted by Thomas Jefferson in the drafting of the Declaration of Independence. See Pauline Maier, American Scripture: Making the Declaration of Independence 136–37 (1997).

        [10].     The Declaration of Independence para. 2 (U.S. 1776).

        [11].     See Danielle Allen, Our Declaration: A Reading of the Declaration of Independence in Defense of Equality 49–50 (2014).

        [12].     Frederick Douglass, What to the Slave Is the Fourth of July, Address Delivered in Rochester, NY (July 5, 1852), in Douglass: Speeches and Writings 188–90 (David W. Blight ed., Library of America 2022).

        [13].     See Jessica Bulman-Pozen & Miriam Seifter, The Right to Amend State Constitutions, 133 Yale. L.J. F. 191, 196 n.17 (2023).

        [14].     Peter Suber notes that citizens’ failure to overthrow their constitution and government in revolution is not necessarily a sufficient manifestation of consent that would legitimize the government, particularly if the consent is coerced. See Peter Suber, The Paradox of Self-Amendment: A Study of Logic, Law, Omnipotence, and Change 22 (1990).

        [15].     See Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457, 459 (1994).

        [16].     See Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013, 1062 (1984); Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1050 (1988).

        [17].     Allen, supra note 11, at 92.

        [18].     Id.

        [19].     Articles of Confederation of 1781, art. XIII.

        [20].     U.S. Const. art. VII.

        [21].     Lepore, supra note 4.

        [22].     As Michael Klarman has detailed in The Framers’ Coup, continuing to operate under the Articles of Confederation posed unacceptable existential risks, but changing the Articles was practically infeasible or illegal because at least one state legislature was certain to object. The states faced continued threats by foreign military powers as well as domestic militias, and the lack of national authority to tax, regulate commerce, and raise a standing army kept the states vulnerable to economic and military destruction. See generally Michael Klarman, The Framers’ Coup: The Making of the United States Constitution 11–125 (2016).

        [23].     Madison’s Notes, July 23, 1787, in The Records of the Federal Convention of 1787, Vol. II 89 (Max Farrand ed., 1911) [hereinafter Convention Records Vol. II].

        [24].     Id. at 93.

        [25].     See Allen, supra note 11, at 85.

        [26].     Melissa Schwartzberg, Democracy and Legal Change 25 (2007).

        [27].     See id. at 117.

        [28].     See Lepore, supra note 4.

        [29].     See Schwartzberg, supra note 26, at 122–23.

        [30].     See Carl Van Doren, The Great Rehearsal: The Story of the Making and Ratifying of the Constitution of the United States 167 (1948).

        [31].     See U.S. Const. amend. XXI, § 3 (repealing the Prohibition Amendment).

        [32].     David Pozen, in his contribution to this Jorde Symposium, suggests that Article V leaves all these questions open. See David Pozen, The Common Law of Constitutional Conventions, 112 Calif. L. Rev. 2193 (2024).

        [33].     Every state except Delaware requires a popular vote to approve an amendment adopted by the legislature. See Bulman-Pozen & Seifter, supra note 13, at 196.

        [34].     Eighteen state constitutions have provisions that protect the people’s right to amend by proposing as well as ratifying amendments. See id. at 198–99.

        [35].     Convention Records Vol. II, supra note 23, at 559 (paraphrased by Madison).

        [36].     Id. at 629.

        [37].     See U.S. Const. art. V.

        [38].     Lepore, supra note 4.

        [39].     Id.

        [40].     See The Records of the Federal Convention of 1787, Vol. I 22 (Max Farrand ed., 1911).

        [41].     Id. at 629.

        [42].     Id.

        [43].     Citizens in Ohio attempted to use the citizen-initiative and referendum process authorized by the state constitution of Ohio to compel their legislature to reject ratification of the Prohibition and Nineteenth amendments, an attempt the Ohio Supreme Court upheld. See Hawke v. Smith, 126 N.E. 400 (Ohio 1919). The U.S. Supreme Court reversed, holding that a state-voter referendum on Prohibition was not within Article V’s assignment of ratification power to state legislatures. Hawke v. Smith, 253 U.S. 221, 227 (1920); see also id. at 231 (applying the holding to the Nineteenth Amendment). In the 1980s, citizens in California attempted to use the citizen-initiative and referendum process to compel the California legislature to petition Congress for a constitutional convention and propose a balanced budget amendment; the California Supreme Court held that effort to be contrary to Article V. See Am. Fed’n of Lab. v. Eu, 36 Cal.3d 687, 697­–706 (1984).

        [44].     Hawke, 253 U.S. at 227.

        [45].     In re Opinion of the Justices, 107 A. 673, 675 (Me. 1919).

        [46].     See, e.g., State ex rel. Tate v. Sevier, 62 S.W.2d 895, 897 (Mo. 1933) (“By the adoption of article 5 of the federal Constitution the people divested themselves of all authority to ratify amendments to the federal Constitution . . . .”); State ex rel. Askew v. Meier, 231 N.W.2d 821, 824 (N.D. 1975) (quoting Tate v. Sevier’s “people divested themselves” language); Walker v. Dunn, 498 S.W.2d 102, 106 (Tenn. 1972) (quoting Tate v. Sevier); Opinion of the Justices Relative to the Eighteenth Amendment of the Constitution of the United States, 160 N.E. 439, 440 (Mass. 1928) (noting that the “voters of the several states are excluded by the terms of article 5 of the Constitution of the United States from participation in the process of amendment”); Decher v. Vaughan, 117 N.W. 388, 391 (Mich. 1920) (noting that a constitutional amendment would be necessary to enable the people to secure the right to amend the federal constitution); State ex rel. Gill v. Morris, 191 P. 364, 364 (Okla. 1920) (construing Article V’s language on ratification as evidence that “the intention and purpose of the constitutional convention was to exclude the people of the various states from voting directly upon amendments to the Constitution and to give such right only to their representatives in the legislature”).

        [47].     Lepore, supra note 4.

        [48].     See State Women’s Suffrage Ballot Measures, Ballotpedia, https://ballotpedia.org/State_women%27s_suffrage_ballot_measures#Map_of_states_that_voted_on_suffrage_ballot_measures [https://perma.cc/M3KD-EJWU] (last visited July 14, 2024).

        [49].     U.S. Const. amend. I. Amar has noted that these rights, unlike the other rights enumerated by the First Amendment, are specifically lodged in “the People.” See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 28–32 (1998). For a sustained account of petitioning, see generally Daniel Carpenter, Democracy by Petition: Popular Politics in Transformation 1790–1870 (2021).

        [50].     See Lepore, supra note 4.

        [51].     Elizabeth Cady Stanton, Declaration of Sentiments (July 20, 1848), available at https://www.nps.gov/wori/learn/historyculture/declaration-of-sentiments.htm [https://perma.cc/JMQ5-3PMZ] (emphasis added).

        [52].     Id.

        [53].     For a history of the Equal Rights Amendment, including political and legal disputes in recent years as to whether three-fourths of state legislatures have validly ratified it, see generally Julie C. Suk, We the Women: The Unstoppable Mothers of the Equal Rights Amendment (2020).

        [54].     See generally Aziz Rana, The Constitutional Bind: How Americans Came to Idolize A Document That Fails Them (2024) (providing an overview of the historical trends and developments impacting how the U.S. Constitution has been revered by citizens).

        [55].     Lepore, supra note 4.

        [56].     H. L. A. Hart, The Concept of Law 51 (1961).

        [57].     Id. at 94–95.

        [58].     See Max Weber, The Theory of Social and Economic Organization 382 (Talcott Parsons trans., A. M. Henderson & Talcott Parsons eds., 1964).

        [59].     Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1789, 1805 (2005).

        [60].     Id. at 1806.

        [61].     See Sanford Levinson, Our Undemocratic Constitution 16–17 (2006); Aziz Rana, Why Americans Worship the Constitution, Pub. Seminar (Oct. 11, 2021), https://publicseminar.org/essays/why-americans-worship-the-constitution/ [https://perma.cc/BD68-H3YJ].

        [62].     See, e.g., How We Teach the Constitution, Nat’l Const. Ctr., https://constitutioncenter.org/education [https://perma.cc/SS65-NBFZ].

        [63].     See, e.g., Ron Chernow, Washington: A Life (2010) (recounting the life of George Washington); David McCullough, John Adams (2001) (documenting the life of John Adams); Joseph J. Ellis, Founding Brothers: The Revolutionary Generation (2000) (recounting a general history of the Founding Fathers); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) (describing the history of the development of the Constitution during the Founding era and its impact on contemporary politics); Gordon S. Wood, The Radicalism of the American Revolution (1991) (outlining the impact the American Revolution had on the sociopolitical development of the United States).

        [64].     Hamilton: An American Musical (2016) and Sherman Adams, 1776 (1969) were winners of the Tony award.

        [65].     The originalist approach to constitutional interpretation, as practiced by the justices in the Supreme Court’s conservative majority, has relied upon Founding-era history to justify its decisions on abortion, guns, and other modern social problems. See, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 242–50 (2022) (reciting historical sources and legal treatises from the thirteenth  to the nineteenth centuries showing that abortion was criminalized); New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 48­­–50 (2022) (examining eighteenth- and nineteenth-century sources to conclude that the Second Amendment did not permit broad prohibitions on public carry).

        [66].     Many Don’t Know Key Facts About U.S. Constitution, Annenberg Civics Study Finds, Univ. Pa, Annenberg Pub. Pol’y Ctr. (Sept. 14, 2023), https://www.annenbergpublicpolicycenter.org/many-dont-know-key-facts-about-u-s-constitution-annenberg-civics-study-finds/ [https://perma.cc/5AAL-MT45]. For a history of petitioning in the United States, see generally Carpenter, supra note 49.

        [67].     See Adam R. Brown & Jeremy C. Pope, Measuring and Manipulating Constitutional Evaluations in the States: Legitimacy Versus Veneration, 47 Am. Pols. Rsch. 1135, 1136 (2019).

        [68].     See James R. Zink & Christopher T. Dawes, The Dead Hand of the Past? Toward an Understanding of “Constitutional Veneration,” 38 Pol. Behav. 535­, 537 (2016).

        [69].     See Christopher T. Dawes & James R. Zink, Is “Constitutional Veneration” an Obstacle to Constitutional Amendment?, 9 J. Experimental Pol. Sci. 395, 396 (2022).