It must be the least employed part of the Constitution. In fact, “never used” may be a better description. I am not sure but that it may be the one part of the Constitution not only never used but never really tried.
I draw your attention to Article V, which offers procedures for amending the Constitution. Article V has been successfully invoked 27 times–25 or 26 times if you reconcile the count for the fact that the Twenty-first Amendment repealed the Eighteenth Amendment, the prohibition of intoxicating liquors.
So why do I refer to Article V if it has been used on more than two dozen occasions? I have in mind an important but neglected part of Article V. Article V provides two methods for amending the Constitution. Only one method has been used. We might call that the Washington Method, since it relies upon the Federal Government to propose amendments and send them to the States. The other, unused method I would call the State Method, as it relies upon the State legislatures to initiate the amendment process.
Article V is short. Here is the text in full:
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. (Emphasis added)
Constitutions are foundational documents and so should not be changed any more often than you would consider changing the foundation of your house. Change the foundation and a lot of other things change, too, and if you are not careful you can weaken the whole structure. But the Founders of the nation knew that they were not omniscient and that the need for adjustments or even corrections to the basic plan of the government would surely become obvious over time.
For example, the original process for counting electoral votes for President and Vice President almost put Aaron Burr in the White House instead of Thomas Jefferson in 1800. Jefferson was the candidate for President, Burr the running mate, and both received the same number of electoral votes, but the electoral college ballot under the Constitution did not distinguish between President and Vice President. The two were tied, and Aaron Burr got the notion that maybe he should be President instead of Jefferson. The House of Representatives had to sort it out. Afterwards, this flaw in the Constitution was corrected by the Twelfth Amendment.
The first ten amendments, the Bill of Rights, were made almost immediately and were demanded by several states as essential conditions for their ratification of the Constitution itself. We could very appropriately consider those ten amendments as part of the original Constitution since it would not likely have been ratified without their promised addition. In that view, the Constitution has subsequently been amended little more than a dozen times in over two centuries.
It is also worth noting that Congress has proposed amendments that the States have subsequently and appropriately turned down. One such proposed amendment that never got past the States was approved by Congress in 1861, denying Congress the power to interfere with slavery. The Constitution does not, however, limit the power of the States to only considering amendments that come out of Washington. It provides to the States the power to initiate amendments of their own.
Mark Levin, in his recent book, The Liberty Amendments, argues that it is important for the States to exercise that authority. He offers some suggestions for amendments that the States might consider, designed to restore the balance between Washington and the States that the Founders envisioned when creating our federal system.
It is a sign of how distorted things have become that using the word “federal” today almost always leads one to think of the government in Washington. Yet our federal system was designed specifically to preserve State authority and limit the power of the national government. Levin argues that those limits have been dangerously eroded, especially over the last century.
Consider the many aspects of our daily lives that are determined one way or another by Washington laws and regulations rather than by the States whose representatives are closer to the people whom they govern. The list would include the fixtures in our bathrooms, the design of our cars, the food offered to children in school lunch rooms, the subjects that they are taught, the products and services offered by banks, and now the healthcare that we can receive.
A major consequence of the problem is that the power appetite of Washington has taken on more than it can handle and is seriously threatening the health of the nation. Regardless of which parties are in power or whether power is divided, Washington is becoming increasingly dysfunctional. But the professional politicians in Washington will not let go of the power that they have taken from the States, even as they sink under the weight.
What has tied Washington up in knots this fall? It is conflict over Obamacare. Would that even be a problem if healthcare were left to the States to regulate? Congress is having trouble passing a farm bill because of apparently unbridgeable differences over food stamps. Would Washington be stuck in the mud—and at the same time affecting all the rest of the nation—if farm and nutrition policies remained in State hands? At the same time, many States are facing major budget problems coming to grips with paying for programs forced on them by the national government.
The State Method for amending the Constitution was put into the Constitution specifically for the time when the national government was the problem and would be incapable of solving its own problems. Surely that time has come. Washington has gotten tied up in a Gordian knot of its own devising. The wise Founders of the nation apparently knew that things could come to this. It is time for the States to exercise their constitutional power to cut the knot.
(First published September 22, 2013)