Constitutional Disuse or Desuetude: The Case of Article V

Article V of the United States Constitution is in decline and disuse. Studies of comparative formal amendment difficulty, the decelerating pace of Article V amendments, and the relative infrequency of Article V amendments in the modern era - the most recent having been ratified roughly one generation ago, and the next-most recent a generation earlier - confirm the impression that Article V's federalist supermajority requirements make the United States Constitution one of the world's most difficult to amend formally. The consequence of formal amendment difficulty has been to reroute political actors pursuing constitutional change from formal to informal amendment. The attendant decline and disuse of Article V as a vehicle for constitutional amendment suggests that Article V may itself have changed informally. In this Article, I explore whether Article V has been informally amended by constitutional desuetude.INTRODUCTIONIt was once considered "settled" that valid constitutional change in the United States occurs exclusively through Article V.1 This formalist interpretation of the United States Constitution insisted that a constitutional amendment was possible only with the federalist supermajorities entrenched in Article V, which authorizes four general formal amendment procedures.2 Today, however, formalism has given way to a functionalist interpretation recognizing that the Constitution may change informally without a textual amendment through Article V.3 Scholars have shown that "non-Article V means" may amend the Constitution informally with the same binding effect as a formal constitutional amendment.4 For example, informal amendments may result from "constitutional moments" that spring from institutional conflict and dialogue,5 "super-statutes" upon which we confer quasi-constitutional status,6 "constitutional workarounds,"7 or "constitutional showdowns"8 that amend the Constitution without altering its text, new constitutional constructions,9 or authoritative legislative, executive, or judicial constitutional interpretations.10Informal amendment may also occur as a result of constitutional desuetude, as I have recently theorized.11 Constitutional desuetude occurs when an entrenched constitutional provision loses its binding quality upon political actors as a result of its conscious sustained disuse and public repudiation by preceding political actors.12 The phenomenon of constitutional desuetude is limited to constitutional democracies with written constitutions, and it both resembles and differs from other forms of informal amendment.13 Constitutional desuetude is similar because it changes constitutional meaning without altering the constitutional text. Yet it is different because it renders the constitutional text politically invalid though it remains entrenched and unchanged.14 As I have illustrated with reference to a seven-part framework, constitutional desuetude is distinguishable from other forms of constitutional obsolescence, namely atrophy, dormancy, supersession, judicial interpretation, and amendment by convention.15In this article, I apply this seven-part framework for constitutional desuetude to the United States Constitution. I suggest that Article V - which entrenches the rules for formally amending the Constitution - may itself be at risk of informal amendment by constitutional desuetude. I do not conclude that Article V has in fact been informally amended by constitutional desuetude, but I explore the circumstances under which such an amendment could conceivably occur. I also suggest that we should distinguish between successful and unsuccessful uses of Article V; the former are indeed rare and in decline, but the latter now occur more frequently than ever before.I begin, in Part I, by evaluating the design and disuse of Article V. I analyze the architecture of Article V and explain how it structures formal amendment. I also show why the conventional interpretation of the Equal Suffrage Clause - that it is formally unamendable - appears to be mistaken. …