By Ethan Herenstein
April 24, 2023
*This is the tenth article in our series The Promise of an Amendable Constitution in an Uncertain Era. You can view the rest of the pieces in the series here.*
It
By Ethan Herenstein
April 24, 2023
*This is the tenth article in our series The Promise of an Amendable Constitution in an Uncertain Era. You can view the rest of the pieces in the series here.*
It is no secret that it is hard to amend the Constitution. Indeed, as Richard Albert has written, our Constitution is “the world’s most difficult to amend.” One common type of proposed solution is to amend how we amend the Constitution, such as by lowering the bar for constitutional change or by changing the order of operations. These proposals, however, present a paradox: How can we amend the Constitution’s amendment process if it is impossible to amend the Constitution?
A part of the solution lies in the recognition that the Constitution is difficult to amend not just because of the text of Article V—the section dealing with amendments—but also with how it has been interpreted. In a poorly reasoned case from more than one hundred years ago—Hawke v. Smith1253 U.S. 221 (1920).—the Supreme Court adopted a reading of Article V that disempowers voters in the federal amendment process. The ruling effectively divests voters of the power to apply for a constitutional convention, to ratify proposed amendments, to block state legislatures from ratifying unpopular amendments, or to otherwise intervene in the federal amendment process, leaving them at the whim of today’s state legislatures, which are, as Miriam Seifter has explained, “almost always a state’s least majoritarian branch.”
In this short essay, I offer some reasons to question Hawke. While I don’t have the space to demonstrate that it is wrongly decided, I hope to show that the opinion is worthy of reconsideration.
Start with the text of Article V. It assigns important roles to state “legislatures” in both the proposal and the ratification of constitutional amendments. The Proposal Clause specifies two ways of proposing constitutional amendments: (1) two thirds of each house of Congress can “propose” amendments or (2) two thirds of state legislatures can make an “application” to Congress to call a national constitutional convention “for proposing amendments.” Once an amendment has been proposed, the Ratification Clause empowers Congress to choose between one of two ratifiers: (1) three quarters of state legislatures or (2) three quarters of state constitutional conventions. These options yield four potential paths for constitutional change, and state legislatures play a key role in three of them.
In Hawke, the Supreme Court ruled that the term “legislature,” as used in the Ratification Clause, referred to the actual state legislature, rather than the state’s lawmaking process. The Court therefore nullified a state constitutional provision that had required that federal amendments be submitted to a popular referendum after approval by the legislature. As a result, the Court held, Ohio voters were powerless to prevent their state legislature from ratifying the Eighteenth Amendment.
Although the case was unanimous, the issue was hotly contested at the time, as the Eighteenth Amendment wound its way toward ratification. Before Hawke, at least two state supreme courts had come out the other way.2Hawke v. Smith, 100 Ohio St. 385 (1919); State v. Howell, 107 Wash. 167 (1919). By contrast, the state supreme courts in California, Maine, and Michigan ruled that a popular referendum violated Article V. See Barlotti v. Lyons, 182 Cal. 575 (1920); Opinion of the Justices, 118 Me. 544 (1919); Decher v. Vaughan, 209 Mich. 565 (1920). Most illustrative is the Supreme Court of Ohio’s ruling, which the U.S. Supreme Court reversed in Hawke. The Supreme Court of Ohio ruled that the term “legislature,” as used in the Ratification Clause, refers to the legislative power in a state, rather than just the formal state legislature. For this proposition, the court relied on Ohio ex rel. Davis v. Hildebrant,3241 U.S. 565 (1916). a U.S. Supreme Court opinion from a few years earlier that dealt with a similar issue in the context of Article I’s Elections Clause. Just as the Ratification Clause tasks state “legislatures” with ratifying constitutional amendments, the Elections Clause tasks state “legislatures” with “prescrib[ing]” the “times, places, and manner” for congressional elections.4U.S. Const. art. I, § 4. In Hildebrant, Ohio voters rejected the state legislature’s congressional map by a referendum vote. Even though the Elections Clause uses the term “legislature,” the U.S. Supreme Court approved the use of the referendum as a valid “part of the legislative power” in Ohio. Hildebrant thus established, as the U.S. Supreme Court would later put it, that “‘the Legislature’ did not mean the representative body alone,” but “encompassed a veto power lodged in the people.”5Ariz. State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 805 (2015).
In Hawke, the Supreme Court of Ohio concluded that if the referendum comports with Article I’s Elections Clause, then it should comport with Article V’s Ratification Clause. To be sure, the court recognized that making rules for congressional elections is “purely legislative,” whereas ratifying federal amendments is a “federal function.” But 