Judicial Power and the Shifting Purpose of Article V

Abstract

AbstractArticle V of the U.S. Constitution, which establishes the formal amendment procedure, sets perhaps the highest bar to reform of any national constitution, discouraging amendment. But despite these challenges, members of Congress have proposed nearly twelve thousand constitutional amendments, with most introduced after the New Deal, raising questions about why members engage in such seemingly futile efforts. We argue that the rise of judicial power following the New Deal substantially decreased the importance of Article V as a tool for constitutional reform. But, by largely abandoning this purpose, members of Congress have repurposed Article V as a mechanism for constitutional position-taking, even though—indeed, perhaps precisely because—their efforts at formal constitutional revision have little chance for success. Through a mixed-methods approach, we first document the shifting purpose of Article V at an aggregate level by coding all 11,969 proposed constitutional amendments throughout American history. We then substantiate the shifting purpose of Article V through a series of in-depth case studies focused on polygamy, women's suffrage, Equal Rights Amendments, and Federal Marriage Amendments. Taken together, this evidence helps us understand Article V as a repurposed institution and suggests that textually static constitutional provisions nonetheless may be open to reinvention at the behavioral level in subtle but important ways.