From May to September 1787, the 55 delegates representing the 12 extant states cloistered themselves inside the Pennsylvania State House, now known as Independence Hall. The Revolution had been won, but the future of the fledging republic teetered in the balance.
Their task—to recraft the nascent nation’s governing framework—was so politically sensitive that the men swore an oath of silence and, despite the sweltering Philadelphia summer heat, shuttered the Assembly Room’s windows daily to preserve the secrecy of their efforts.
Arthur Simon, a senior lecturer and prelaw mentor at the University of Miami College of Arts and Sciences, highlighted Article 5 and asserted that the fruit of the framers’ historic labor—the U.S. Constitution—never would have been realized if not for this provision.
“By definition, the Constitution is an instrument of fundamental and extraordinary law and, as such, Article 5 is its single most important provision,” said Simon. “It’s what makes the Constitution constitutional in nature because it sets forth an extraordinary procedure for the enactment of amendments as distinguished from the ordinary procedure that is used for enacting, amending, or repealing any federal statute.
“It likewise served as a bulwark against future revolutions, providing stability in that it necessitates and promotes thoughtful deliberation before any changes can occur—which helped to preserve and protect this new-fangled republic that was created in the new world,” he added.
A critical prerequisite to the Bill of Rights
Moreover, Article 5 was a critical prerequisite to the ratification of the Constitution and did ultimately lead to the adoption of the Bill of Rights, he said.
This “amending article” stipulates that any change to the Constitution requires a two-thirds vote of each house of Congress and then ratification by three-fourths of the state legislatures, he explained. A separate procedure exists for a constitutional convention.
“It’s not too easy to amend the Constitution—and that’s inherent in this extraordinary constitutional process and essential to understanding how it helps to preserve and protect our republic,” Simon pointed out.
He noted that the framers recognized that previous attempts at republics in the “old world” had all eventually failed because of frictions, factions, and political corruption that arose—and because there was no practical way to resolve these types of problems.
“Article 5 forces deliberation before any change can be made. Whatever the passions of the day may be, it requires extraordinary deliberation in both houses and then from the states for ratification,” Simon said. “So, it could be a long period of time before any change is accomplished.
“This is not a bad thing; it allows for and promotes sober judgement. You can think of it as a safety valve against the type of evils that could otherwise permeate the decision-making process at the highest levels of constitutional government,” he added.
If not for Article 5
George Washington, selected as president of the convention in Philadelphia, and most others recognized that the new governing document, as written, was imperfect in many regards, yet they accepted it because of Article 5, which allows the opportunity for amendments.
Simon explained that ratifying conventions in some states—Massachusetts, Virginia, and New York, the biggest and most important —were very reluctant to ratify the newly proposed Constitution because it lacked explicit guarantees of civil liberties and limits to the federal government’s power.
He cited the example of John Hancock, the most famous signatory of the Declaration of Independence, who was governor of Massachusetts in 1788. Although he was ill, Hancock spoke at the end of the state’s ratification convention to urge ratification of the proposed Constitution, subject to approval of amendments (immediately after ratification) to protect civil rights and liberties. In this regard, Hancock prompted James Madison, one of the Constitution’s principal authors, to publicly change his Federalist position and support the addition of the requested amendments in the first session of the newly constituted Congress. And he did, thereby adding the Bill of Rights to the Constitution.
“If not for Article 5, the Constitution may not have been ratified. It should be remembered that the framers still remembered the Revolutionary War, and they learned a valuable lesson from that to do anything and everything they could to militate against the potential for another revolution to alter or change our government,” he said.
Valid criticisms
Simon noted that Article 5 is not without its critics—and that the criticisms are accurate and valid.
“It opened the door to a massive expansion of power by the Supreme Court to interpret and effectively ‘amend’ the Constitution through the exercise of judicial review,” Simon said. “Article 5 is what has really empowered the court. We have only 27 formal amendments. And yet there have been hundreds of important changes to constitutional law by virtue of the Supreme Court’s interpretation of the U.S. Constitution.”
This criticism and others should be acknowledged, he said; yet he emphasized that they do not detract from the article’s supreme importance.
“Its great principle is that it sought to enable changes that are practical and not too easy—and for those to be secured through deliberation and caution,” Simon said. “And to follow experience rather than open a way for experiments suggested by mere speculation on feeling.”
“Article 5,” he highlighted, “is the capstone that holds the U.S. Constitution together as the world's longest-surviving written national constitution, in continuous use since its ratification in 1788.”
