Amendments Convention: Formal or Informal?

While speaking about ways to curtail the power of federal courts, Cato scholar Doug Bandow commented: “The Supreme Court has become a continuing constitutional convention, in which just five votes often turn the Constitution inside out.”  No better example of this exists than the Court’s Affordable Care Act rulings.  NFIB v Sibelius informally amended the Constitution to allow Congress to force us to buy things by simply taxing us if we refuse.  King v Burwell informally amended the Constitution to allow the President vastly expanded discretion in manipulating and implementing acts of Congress to suit his own ends. These rulings are poised to have the historical significance of the Court’s vast expansion of government powers via informal amendment in the 1930s.In light if this, as an advocate of real constitutional amendments, it strikes me that the question before us is simply whether we want to continue to allow 5 judges to amend the Constitution informally (and extra legally) or whether we will use the constitutional process given in Article V to propose and ratify formal amendments. The conservative opponents of amending the Constitution complain that left-wing elements will gain control of the convention and change the Constitution for the worse – sort of like left-wingers such as Ruth Bader-Ginsburg gaining control of the Court and changing the Constitution for the worse.

What these opponents fail to grasp is that we want formal amendments precisely because the informal amendment process has been used by the left to effectively turn the Constitution on its head.  Why believe that Constitutionalists will have an upper hand through the formal process?  Two reasons.  First, Republicans control 31 state legislatures, which is where the work of amending the Constitution takes place.  Admittedly, Republican is not interchangeable with Constitutionalist but it is nonetheless reasonable to believe that Republicans at the state level will generally be supportive of limiting the power of the federal government.  Second, there are a few general philosophies of government which a vast majority of Americans believe but which can only be truly manifested in general Constitutional rules rather than specific legislation.  For example, the majority of the American people want government to curtail spending and would support a cap on federal spending.  That is a philosophy that is relatively easily expressed in a Constitutional rule but nearly impossible to express in the day to day budget wrangling amid special interests in Washington.

Regardless of your uncertainty, or even hostility, toward the idea of amending the Constitution, the simple fact is that it has already been amended, and continues to be amended, in profound ways, almost exclusively in favor of government power.  Those who wish to curtail that power in meaningful ways have little choice but to invoke Article V.  The alternative of complaining about the possibility of bad formal amendments while bad (and equally effective) informal amendments continue to multiply is nonsensical to say the least.