Can the U.S. Constitution be amended to change the way it amends itself?
Article V of the U.S. Constitution requires that an amendment be ratified by three-fourths of the states. Could they change this requirement to 90 percent? Or declare that the president can amend the constitution at his whim? Or abolish amendments altogether?
“If legal rules that authorize change can be used to change themselves, then we have paradox and contradiction; but if they cannot be used to change themselves (and if there is no higher rule that could authorize their change), then we have immutable rules,” writes Earlham College philosopher Peter Suber. “Paradox and immutability should create an uncomfortable dilemma for jurists and citizens in western legal systems. It appears that we must give up either a central element of legal rationality or a central element of democratic theory.”
January 20th, 2011 | 10:56 am
Seems a bit overblown to call this “paradox and contradiction.”
January 20th, 2011 | 12:38 pm
No dilemma. As a matter of fact, this seems a little confused. A lot confused.
The rules of amendment are not at issue here. The constitution as a whole may be amended as a whole, in a linear fashion, so that one passage may be replaced by another, new, passage.
A paradox might occur if pre-amendment and post-amendment states were to co-exist; but they don’t.
January 20th, 2011 | 12:58 pm
The amendability of an amendment process is not a contradiction, but an example of ordinary self-reference. It’s a variation of the Liar Paradox. This kind of thing shows up all in logical systems at least as complicated as arithmetic. All this means is that the system produces statements whose truth value the system cannot decide, not that they cannot be decided with reference to to rules outside the system.
We should keep in mind that the Constitution is an app, not an operating system. It presumes a legal and procedural environment it does not purport to define.
January 20th, 2011 | 1:12 pm
I with Erlich and Mr Meyer on this one. I can’t imagine why you couldn’t amend the Constitution to change the amendment requirements. But you would have to follow the current requirements to do so. Given that amendment passes, the new amendment requirements take effect. If the paradox were true for amending it would be true for all 26 amendments, as they changed the Constitution. One would have to believe the Constitution needed to be immutable to get the paradox but that would yield it immediately as the first ten amendements were added right away.
January 20th, 2011 | 2:06 pm
John Reilly – nice metaphor and explanation. I was thinking Russell’s Paradox, but yours is closer.
Such seeming loopholes do indeed easily suggest abuses, and under tyranny, the rules can be used to unmake the rules. But the position of a rule in the actual articles of the Constitution is enough to make many people think twice or thrice about jumping into it. Those who are not properly cautioned at the weightiness of the deed at least have to pretend they are. Hypocrisy may be bad for each of us individually, very bad indeed. But it is useful in society because it creates more space for those who wish to hold firm to actually do so. Senator A may be a blowhard when he says he has spent many days in prayerful consideration, but has ultimately decided in favor of killing all kitties and puppies. But s/he provides space for Senators B & C to say they won’t stand for it.
January 20th, 2011 | 2:21 pm
“Article V of the U.S. Constitution requires that an amendment be ratified by three-fourths of the states. Could they change this requirement to 90 percent?…Or abolish amendments altogether?”
Yes, the Cosntitution is not cast in stone. It simply sets out a structure to a form of government including rules to amend the structure. The amendments can provide for the termination of the entire government if so amended. This is a legal document, not a sacred document. Legal documents, by their own terms are amended all the time.
This exact scenario has already occurred in the United States. The Constitution you are referring to is the SECOND Constitution of the United States. The first one, The Articles of Confederation, was ratified by the requsite number of states in 1781.
For various reasons, it was deemed unsatisfactory and scrapped altogether in favor of the current Constitution, ratified in 1789.
January 20th, 2011 | 3:12 pm
Article V could be amended to change the ratification of a proposed amendment to 90 percent. However, as already described, Article V requires approval of 75 percent of the states (not to mention two-thirds proposal by Congress or a convention) just to be passed now. The record is clear. Congress has received over 10,000 amendment proposals; only 27 have made it into the Constitution.
Thus, changes like this may be possible. But, due to the difficulty of getting such a proposal passed, it is likely such a proposal would never get enough support to pass.
There has been discussion of such changes. You can read the applications for a convention call and the applications for changes in Article V at http://www.foavc.org.
January 21st, 2011 | 1:17 pm
“Can the U.S. Constitution be amended to change the way it amends itself?”
Article V itself indicates it can. It concludes with specific limitations on what is subject to amendment, the only one still in effect being “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Links
Blogs
Find Us
Contact