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The Lesser of Two Evils: Lowering the Constitutional Amendment Bar to Avoid an Unadaptable Constitution, Encouraged Judicial Activism, and Disrupted Federalism


The Constitution has not been amended for nearly three decades. During this time, the line in the sand between political parties has morphed into an impenetrable wall that neither side can or is willing to breach. This begs the question whether the constitutional amendment process in Article V is presently functional.

If Article V is no longer functional, then the constitutional amendment process itself needs to be amended. Drastic as this sounds, it is the lesser of two evils. The alternative—accepting that Article V is dead and the Constitution cannot be amended—will lead to a distorted world in which the Constitution cannot be altered, “constitutional amendments” are ratified through judicial activism, and the balance of federalism is disrupted by the elimination of a crucial check on federal power.

If Article V is still functional, however, it needs to prove it. The ultimate test case to determine whether Article V is functional or a dead letter is an amendment prohibiting the denial of equal protection of the laws based on sex. Although it may seem like there is no need for such an amendment because the Supreme Court has already recognized the Constitution generally prohibits sex discrimination, this protection is still vulnerable. So, attempting to ratify this amendment will serve two important purposes: first, if successful, it will solidify for women the right of equal protection of the laws and make sex classifications the subject of heightened scrutiny; and second, it will test Article V to evaluate whether the constitutional amendment process has become a dead letter, and if so, it should also prompt a consideration of the ensuing implications.