Article   |   Volume 162, Issue 5

The Function of Article V

By
162 U. Pa. L. Rev. 1165 (2014)

April 2014










What good is Article V? The Constitution’s amendment rule renders the text inflexible, countermajoritarian, and insensitive to important contemporary constituencies. Comparative empirical studies, moreover, show that textual rigidity is not only rare in other countries’ organic documents, but also 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.

Against this pervasive skepticism, I propose instead that Article V may have played an important but hitherto unrecognized function in the early Republic. I hypothesize that Article V may have mitigated a “hold-up” dilemma that could have precluded the Constitution’s ratification and undermined its stability in the early Republic era. By hindering strategic deployment of textual amendment, Article V–induced rigidity fostered a virtuous circle of investment in new institutions, such as political parties and financial infrastructure. Identification of Article V’s potential role in the early Republic leads to a more nuanced view of the Constitution’s amendatory regime. In effect, it raises the possibility that 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. The Function of Article V - PennLawReview.com