A reading sample

An excerpt from the book

Right the Republic · Pat LaPointe

In drafting the Constitution, the framers set out to engineer America’s systems against failure and build something more durable than any prior nation had achieved. This is exactly why the founders are called “framers”—because they drafted a framework—just like builders start with blueprints. The separation of powers was designed to prevent any single faction from capturing all the levers of government at once. The system of checks and balances ensured that ambition would counteract ambition, meaning each branch would resist encroachment by the other two branches because its own power depended on it. Federalism distributed power across levels of government and multiple institutions, ensuring that no single electoral wave could sweep away all resistance. Supermajority requirements for significant actions were designed to prevent slim majorities from treating temporary electoral victories as permanent mandates.

All of these safeguards were engineered. They were not moral instructions. They were not a prayer that good men would govern wisely. The founders deliberately designed a system to produce durable outcomes even when the people operating government behaved imperfectly, ambitiously, or in their own self-interest. The founders did not ignore human nature, and they knew they could not prevent occasional political earthquakes. What they were trying to do was provide a building code to ensure that democratic systems could survive the inevitable shaking and upheaval the humans, being humans, would cause. And, critically, they knew that no design could last forever without maintenance and the occasional redesign. The world would change. New stresses would emerge. New methods of exploitation would appear. This is precisely why the founders included Article V in the Constitution.

The Constraints That Shaped Article V

To understand Article V — what it says, what it doesn’t say, and why it looks the way it does — it helps to understand the realities the framers were navigating when they wrote it. The first reality was that the nation was brand new. The Constitutional Convention of 1787 was not taking place in a stable, confident country. It was convening thirteen colonies that were held together by the fraying Articles of Confederation, were mired in war debt, were struggling with a collapsed economy, and were facing an active insurrection. In the autumn of 1786, armed farmers in Massachusetts, Rhode Island, and Connecticut had seized courthouses and looted armories to prevent the collection of taxes in what would be called Shays’ Rebellion. Things were serious enough that George Washington wrote to James Madison expressing fears of the country “verging to anarchy and confusion.” Of the 70 esteemed statesmen/delegates originally invited to the constitutional convention, fifteen flat-out refused to attend. Patrick Henry — of “give me liberty or give me death” fame — declined because he said he “smelt a rat trending toward monarchy.” Rhode Island sent no delegates at all. The United States of America were anything but. Nothing was stable. It was practically anarchy, and the framers were operating under somewhat of a siege mentality.

The deepest political fault line of the convention was between those who wanted a robust national government capable of decisive action and those who believed that concentrating power in Washington would destroy the states’ ability to govern themselves. The Constitution walked this fine line. Any amendment mechanism had to honor that balance: it could not give Congress unchecked power to alter the document, and it could not give the states power to bypass Congress entirely.

There was also a notable distrust many of the framers had for “the people.” This is uncomfortable to acknowledge in a culture that venerates popular sovereignty, but it is historically true. The framers were educated, prosperous white men who had seen how quickly facts could be replaced by rumors in a world where information traveled slowly and emotions traveled fast. They built a republic of representatives — deliberately injecting elected intermediaries between popular passion and governmental action — precisely because they believed unfiltered democracy was a short path to mob rule and demagoguery. Having worked so hard to devise a delicate, artful compromise amongst learned men, they were not about to hand ordinary citizens the ability to undo that work in a moment of popular fury. As such, Article V, as written in 1787, reflects all three constraints that the founders felt were necessary. It provides two pathways for proposing amendments: Congress can propose amendments with a two-thirds vote of both houses or a convention can be called upon the application of two-thirds of state legislatures. In either case, ratification would require approval by three-fourths of the states. In other words, the people would be able to participate only as an electorate that chooses state legislators and members of Congress — never as direct participants in the amendment process. Here is what Article V actually says:

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…

The structure is clear. But the operational details are almost entirely absent. What is a “convention”? The text doesn’t say. What does it mean to “call” one, or to “apply” for one? Not defined. How are state applications counted? Must they match in subject matter? In timing? Silence from the framers. How would delegates be apportioned or selected? Unknown. What voting rules would apply — one state, one vote, or population-based? Unspecified. Who sets the agenda? Who decides whether a convention has gone “too far”? The framers, in the interest of achieving consensus on the larger document, left the answer to every one of these questions ambiguous—and that ambiguity has never been resolved. Courts have historically treated these questions as political matters, declining to rule. In practice, this means Congress controls the answers — and as we’ve already discussed, Congress has had no incentive to provide clear answers, because ambiguity preserves congressional power and leverage.

Twenty-Seven Amendments in 235 Years

The result is a system that has proven, in practice, to have only one functional pathway for amendments: Congress proposes, and states ratify. The alternate state-convention pathway has never once been used in the entire history of our republic. There have been two near-misses. Around the turn of the twentieth century, states pushing for direct election of senators came close enough to the two-thirds threshold that Congress moved preemptively and proposed the Seventeenth Amendment, making the convention unnecessary and its unknowns moot. In the 1970s and 1980s, a campaign for a balanced-budget amendment received 32 of the required 34 state applications before Congress introduced the amendment. It failed 3 times, by one vote each time. The state convention route remained theoretical, even though it demonstrated that Congress is sensitive to pressure from broad coalitions of interest.

Supreme Court Justice Antonin Scalia, not a man given to criticism of constitutional design, told a journalist in April 2014 that the amendment process had become too difficult. “It ought to be hard, but not that hard.” The record supports his frustration. In nearly 235 years, thousands of proposed amendments have been introduced in Congress. Only twenty-seven have ever been ratified.