Wednesday, February 17, 2016

Mader on Constitutional Unamendability

George Mader, William H. Bowen School of Law at the University of Arkansas at Little Rock, has posted Binding Authority: Unamendability in the United States Constitution--A Textual and Historical Analysis, which is forthcoming in the Marquette Law Review:
Through an examination of the text of the original Constitution and the history of its framing, this article demonstrates the framers understood the difficulties — logical, syntactic, and political — involved in creating unamendable constitutional provisions, yet did create two such provisions. One provision expired by its own terms in 1808, but while it was in force it barred amendment of several other provisions. The other is the ban on religious tests in Article VI, which is permanent — it may never, ever be removed. Additionally, this article demonstrates it is possible for a present-day amendment to be permanently unalterable and for such an amendment to make a part of the existing Constitution similarly unalterable. In the past, the possibility of such unalterable amendments was accepted. Indeed, an amendment proposal sent by Congress to the states for ratification in 1861 was an attempt to avoid the Civil War by prohibiting forever any federal interference with slavery in the states. Each of these permanent limitations (or attempted limitation) on amendment was aimed at compromise to avert a serious national crisis. Despite its usefulness as a tool for binding compromises, unamendability is a dangerous device, so the article also addresses whether the power to create permanent provisions should be permanently removed, and how that may be accomplished.

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