Amending the Constitution: Just Not Every November

Professor Akhil Amar has defended the idea that Americans may amend the Constitution regardless of Article V's dictates. Professor Amar does not stand alone on this claim. Professor Bruce Ackerman not only agrees, but would actually prefer direct popular amendment over the express Article V procedures. Their arguments, however, ignore the Framers' careful balancing of federal and popular principles in Article V by embracing only the democratic populist aspect of the Constitution.

Part I of this Article examines and critiques Professor Amar's argument that the people may directly amend the Constitution without having to comply with Article V. An examination of the Framers' deliberate inclusion of federal principles in Article V, and the Constitution as a whole, suggests Amar's popular sovereignty theorem to be incomplete. Part II argues that constitutional legitimacy requires that amendments proceed on a clearly lawful path to ratification. This Part offers suggestions for making Akhil Amar's constitutional amendment proposal more consonant with the spirit and text of our Constitution.