Constitutional Disuse or Desuetude: The Case of Article V

Abstract

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