The Road Not Taken: FDR, the Supreme Court, and Constitutional Amendment

Abstract

Why has the United States Constitution changed so little during the past two hundred years? While society, economy, and government itself changed a great deal, not so the formal statement of powers and prerogatives that legitimates the national government's form and functioning. Much of the ongoing liberal-conservative debate over government has been rooted in uncertainty over the constitutional limits of opportunity and obligation. However, even moments of partisan triumph have seldom led to efforts to reduce the ambiguity of the document. Why has the American political system shied away from one of 1787's significant innovations, Article V, the provision for amending the Constitution by specified and not impossibly difficult procedures? Article V was born amid talk of the right of revolution against unsatisfactory government and consciousness of the value of providing a constitutional alternative to rebellion. That useful alterations will be suggested by experience could not but be foreseen, explained James Madison in The Federalist, No. 43. was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.1 With Article V, the Founding Fathers acknowledged that their crea-