Decentralizing the Amendment Power

The United States Constitution could soon be re-written by the states. Article V of the Constitution authorizes two-thirds of the state legislatures to bypass Congress and demand a convention to initiate federal constitutional amendments addressing any number of issues. States have adopted resolutions calling for a convention to consider amendments that would, among other things, require a balanced federal budget, eliminate life tenure for Supreme Court Justices, constitutionalize universal healthcare, and even invalidate bulwark rulings such as Roe v. Wade. In April 2014, Michigan arguably became the thirty-fourth state to adopt such a resolution, and convention supporters believe that a convention should now be convened. Although many observers believe that the current convention movement is a political gimmick unlikely to succeed, Article V’s amendment procedures raise fundamental questions about how the amendment power should be allocated between levels of government. Why should subnational units such as states, provinces, and regions have significant influence in the amendment of national constitutions? How do other countries allocate the amendment power between levels of government? What are the likely risks and benefits that constitutional designers should consider when allocating the amendment power? Despite recent interest in constitutional amendment rules, scholars have not fully addressed many of these issues. This article presents findings and analysis from a comprehensive study of decentralization in national constitutional amendment rules. It provides constitutional designers and scholars with a useable model for understanding how and why constitutional amendment rules might be structured to include subnational units in the amendment process. Based on an exhaustive review of the amendment rules in the approximately 191 extant national constitutions, the article claims that there are currently five dominant decentralization mechanisms. The article further claims that although there are real risks associated with strong decentralization of the amendment power, there are several sound normative justifications for including subnational units in the amendment process. Finally, although one might expect decentralization of the amendment power to correspond to lower amendment rates, the article finds that amendment rates in strongly decentralized systems are actually higher than amendment rates in countries with centralized procedures. In sum, this article contributes to the study of comparative constitutional design by providing a systematic approach to decentralization of the amendment power