Keep ’Em Separated: Article I, Article V, and Congress’s Limited and Defined Role in the Process of Amending the Constitution

By:  Alexander White

 

In August 2011, President Barack Obama signed the Budget Control Act, allowing the United States to continue borrowing money to fulfill its legal obligations. The Act includes a provision that raises the debt ceiling by an additional $1.5 trillion if both houses of Congress pass a Balanced Budget Amendment.

 

This Note argues that the use of the Article V amendment process to achieve a legislative result is constitutionally suspect, and that legislation enabling the achievement of an Article I result via the Article V process is similarly problematic. More broadly, the Note argues that the text, history, and doctrine surrounding Article V indicate that it was meant to be wholly separate from Article I, and that permitting the conflation of Article I and Article V would be harmful to our constitutional design.

 

This Note analyzes two failed attempts to amend the Constitution, positing that failure would have been less likely had Congress been free to use its Article I power to influence the Article V amendment process. It discusses the ratification of the Fourteenth Amendment as an exception that proves the rule, arguing that the uncertain status of the Southern states in the wake of the Civil War justified otherwise questionable congressional behavior. This Note concludes that the centuries-old practice of separating Article I from Article V ought to be preserved.

 

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