Not the People: How Courts Cut Voters Out of Amendment

This Article shows how courts following the Supreme Court’s decisions validating the Prohibition Amendment construed Article V of the Constitution to reduce the role of the people in amending the Constitution. Article V primarily empowers Congress to propose amendments and state legislatures to ratify them, with the possibility of Congress authorizing ratifying conventions in the states. With the Prohibition Amendment, the people attempted to invoke their legislative power under state constitutions to authorize referenda to control the legislatures’ decisions on ratification. The Supreme Court advanced a rigid construction of Article V to exclude state referenda from the federal amendment process, and some state supreme courts subsequently interpreted Article V’s convention method of ratification against referenda.

This Article draws out the more robust vision of direct democracy that was imagined to be compatible with Article V in the early twentieth century and shows how courts chose to reject that vision in construing the law of federal constitutional amendment.