Article V of the Constitution — the Amendatory Clause — provides the constitutionally prescribed means for changing the Constitution to keep it adequate to the needs of the American people. This innovative provision empowers the citizenry and their representatives to breathe life into the aspirational language of the Preamble: “ to form a more perfect Union.”
The essential values embodied in the Amendatory Clause tell the story of American Constitutionalism. Above all, its inclusion in the Constitution demonstrates the framers’ humility. Delegates to the Constitutional Convention acknowledged that the document suffered from obvious shortcomings, but it represented the most that they could accomplish in the summer of 1787. The framers knew, among other things, that they could not anticipate the ways in which the nation would, or should, change in the years ahead. Committed to a Constitution that, in the words of Chief Justice John Marshall, would “endure for the ages,” the framers recognized the need for a mechanism that could be exercised to amend the law of the land so that it would not become stale, brittle and irrelevant in the face of societal, cultural, political and technological changes.
Among the wisest of the framers’ many wise decisions, the creation of a formal constitutional means of changing the Constitution stood at the top. Delegates to the Convention viewed the clause as a means of responding to flaws and “emergencies,” as seen, for example, in the decision of the First Congress in June of 1789 to draft a Bill of Rights as a remedy for its omission in the Constitution of 1787.
The founders, as Justice Hugo Black was fond of saying, embraced the conception of a living Constitution, best achieved by the availability of the Amendatory Clause. This clause invites the sovereign people, individually, collectively and through their representatives at the state and federal levels, to imagine and contemplate proposals for altering the Constitution — in every way, shape and form — to “form a more perfect Union.” At the time of the founding, no other country had ever created a governing document as “democratical,” to borrow from James Wilson of Pennsylvania, that empowered the citizenry to reconceive, reframe and rewrite the law of the land, as did the U.S. Constitution, through participation as delegates to future constitutional conventions and state ratifying conventions.
The history of the Amendatory Clause is the history of citizen activism, the realization in significant ways of the framers’ path-breaking invitation to the American people to participate in the recreation of the Constitution. Consider, for example, the intense pressure and clamor of the electorate in 1787-1788, for the addition of a Bill of Rights to protect fundamental freedoms and liberties. The popular cry was sufficient to persuade James Madison to promise as a candidate for the House of Representatives the introduction of the Bill of Rights, if elected. Madison fulfilled his historic pledge on June 9, 1789.
Consider as well the ratification of “democratical” amendments that brought a leveling influence to American politics and promoted broader and more diverse participation in our system of government. The 17th provided for the direct election of U.S. Senators. The extension of the franchise for the popular selection of members of the upper chamber marked a transformative moment in the history of the republic. From that point on, Senators were required in the course of campaigns to court “We the People,” rather than the few, influential state legislators and the corporate power behind them.
Approval of the 19th Amendment in 1920 granted women the hard-earned and long overdue right to vote. Women still have a long way to go to achieve gender equality, of course, but access to the arenas of leadership represented a foundational pivot for a nation that all but ignored the talents and skills of roughly half the citizenry. A few years ago, Warren Buffet nailed the shortsightedness of America’s indulgence of gender discrimination: “We’ve done well, historically, but think of what we could accomplish if we included the other half of our population.”
The 26th Amendment, ratified in 1971, extended the right to vote to 18-year olds, and ended the anomaly of asking a younger generation to fight and possibly die for a nation that denied them the opportunity participate in its political life. Passage of the amendment, like others, was a byproduct of pressure brought by the tens of thousands of Americans who poured into the streets and demanded this “democratical” measure.
The Amendatory Clause doesn’t guarantee, but surely encourages, Americans of all ages and stripes and colors to consider ways in which to improve our nation. The founders could not have foreseen the changes that subsequent generations have made to the original scheme, and while we have no way of knowing how they might have felt about the 27 amendments to the Constitution, it doesn’t matter. Their point in designing Article V, precisely, was that they did not want to hobble progress or deny to future citizens their right to create a “more perfect Union.