The Constitution’s amendment rule in Article V renders the text inflexible, countermajoritarian, and insensitive to important contemporary constituencies. Comparative empirical studies show that textual rigidity is not only rare in other countries’ organic documents but highly correlated with constitutional failure. To promote our Constitution’s survival and to counteract Article V’s ‘dead hand’ effect, commentators argue, Americans have turned to informal amendment through the courts or ‘super’ statutes. Article V, the conventional wisdom goes, is a dead letter.
This CBI talk explains why the conventional wisdom moves too fast. Article V has played an important but hitherto unrecognized function in the early Republic, mitigating strategic behavior and inducing investment in new institutions such as political parties and financial infrastructure. Recognition of Article V’s amplitudinous role in the early Republic leads to a more nuanced view of the Constitution’s amendatory regime. In effect, we have a two-speed Constitution—with Article V-induced rigidity at the inception supplemented gradually over time by informal judicial or statutory amendment protocols.
This event was recorded April 23, 2013, as part of the Chicago's Best Ideas lecture series. Aziz Huq is Assistant Professor of Law at the University of Chicago Law School