96 Indiana Law Journal 337 (2020)
This Note seeks to explain what Article V means for the methods of constitutional change outside of the traditional Article V amendment process. Specifically, I argue that Article V was meant to limit the federal government from usurping power without first attaining the consent of the people. Because the Supreme Court is part of the federal government and is often considered a counter-majoritarian institution, the Court cannot extend the powers of the federal government through constitutional interpretation beyond the bounds allowed in the Constitution. Therefore, the only means to change the power structure of the federal government (the balance of power between branches of government or between federal and state governments) under the Constitution is through the Article V amendment process.
On the other hand, Article V was not meant to limit the federal government's ability to protect rights belonging to the people. Although the Founders did not foresee the Supreme Court being the institution to protect natural rights, the Founders created a system of government that required that result. This argument is therefore both originalist and structural: originalist in that the Framers had no intent to only use the Article V method to extend rights to the people, and structural in that the expression of general rights written in the Constitution necessarily made it the role of the Court to protect those rights.
In determining how Article V should be understood regarding other methods of constitutional change, I look to the Founding Fathers, not because the ideas of the Founders necessarily control modern interpretations of the Constitution, but because there is wisdom in the Founders' ideas. In most methods of constitutional interpretation, the intentions of the Founders at least "count for something." When designing the system of government, the Founders had a vision for what that system should accomplish. By ascertaining what the Founders attempted to accomplish, legal minds today can assess whether those goals were appropriate and whether the Constitution was successful in accomplishing those goals. While many may disagree with some of the Founders' ideas, those ideas are still worth consideration because the Founders engaged in "serious deliberation," and many of their ideas have been subsequently reaffirmed by later generations.
"Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation,"
Indiana Law Journal: Vol. 96:
1, Article 8.
Available at: https://www.repository.law.indiana.edu/ilj/vol96/iss1/8