Anyone who has served in a legislature knows the perils of last minute legislation. Time is running out, and the normal, slow pace of drafting laws is discarded. The safeguards which prevent mistakes are abandoned in the rush to get it done while there’s still time
So it was in Philadelphia on September 15, 1787. The delegates had been meeting for almost four months, and it was time to wrap it up. This is the atmosphere which surrounded the adoption of Article V. According to Madison’s notes, it was the subject of heated debate. Several amendments were adopted, and incorporated into the Article. They were writing Article V on the fly.
This was the final day of the Convention’s deliberations. They met once more on September 17th, to accept one minor amendment (with his rare speech supporting the amendment, Washington assured its unanimous passage), to make speeches, and to vote. I doubt anyone spent a whole lot of time reexamining the new version of Article V which emerged from the amendment process on the floor two days earlier.
So it is that we have a dead letter in the Constitution, caused by faulty drafting. In all institutions of which I am aware, there is only one which requires a supermajority for a quorum, and a mere majority to act. That is the Article V Amendment Convention.
It’s backwards, of course. You should need a majority for a quorum in order to meet, and a supermajority to propose Constitutional amendments. The Framers made a mistake.
The 11th, 12th, 20th and 25th Amendments were procedural in nature, correcting mistakes in the Constitution (11th, dealing with the jurisdiction of the courts [1795], 12th, presidential election procedure [1804], 20th, presidential terms [1933] and 25th, presidential succession [1967]. We need a 28th to fix Article V.
The Framers did not intend to establish a system that was dysfunctional. But that’s what they did, as shown by 229 years of state impotence in the face of federal encroachment. Because of this fatal flaw, the role of the States in controlling Congress has been abandoned. The results have been catastrophic.
In Reynolds v. Sims (1964) the Supreme Court stripped the states of their power to apportion their own legislatures. It was outrageous, and Sen. Ev Dirksen of Illinois started an Article V movement to overturn it. By 1969 he got to 33 states, one short. Because of the fatal flaw of Article V, the states were unable to meet and propose an amendment. The states have been neutered ever since.
Since Congress won’t act, fixing this mistake is the responsibility of the state legislatures, and their leaders.
They have the power, and it’s their responsibility. They all swore an oath to preserve, protect and defend the Constitution. They need to act in order to fulfill their oath and obligation.
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