Recent legal and political activity and renewed academic discussion have focused considerable attention on the nature of the federal system that the founders created some two hundred years ago. In two important decisions in the 1994 Term, the Supreme Court addressed this issue. No fewer than fifteen states have recently passed resolutions reasserting the importance of the Tenth Amendment – the constitutional affirmation of the limits on national authority. Additionally, legal academics have advanced arguments intended to alter settled understandings about the constitutional framework established in 1789. This widespread reexamination of the nature and limitations of our federal system has the potential to play a significant role in the current political transformation of our country, and the results of this debate could affect the lives of all Americans.
In this Article, I examine the tensions inherent in the "neither wholly national nor wholly federal" constitutional order created in 1789. I also seek to dispel the notion that historical revisionism can erase the many democracy-restraining features of the Constitution. In doing so, I focus primarily on Article V – the amending provision – which illuminates the state-oriented compromises and democracy-restraining features that were built into the Constitution. I respond directly to Professor Akhil Amar, who has advanced an appealing, but historically groundless, claim that despite Article V, the Framers intended that a simple majority of a national "We the People" could amend the Constitution. Professor Amar's claim suffers from two deep flaws: It ignores the crucial role reserved for the states in the newly established constitutional order, and it also ignores the fact that the Constitution nowhere contemplates any form of direct, unmediated lawmaking or constitution-making by "the People."
Henry P. Monaghan,
We the People[s], Original Understanding, and Constitutional Amendment,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/161