Angus Dwyer joins in my and Dan Solove's opinions that the U.S. Constitution ought to be a little bit easier to amend, but he savily suggests that any real change probably will not involve mere tinkering with the supermajority requirement, but rather creating a slightly different process, like letting simple majorities of Congress pass an Amendment on to the states so long as they do so once before and once after a Congressional election. (This would supplement the other Article III Processes).

This is not crazy, and is the process used by a number of states, but I wonder about the implementation. Would there be a *maximum* length of time between the two passages, or would it be all right for the amendment to pass once in 1799 and again in 1997? Would it be possible to renounce passages?-- If the measure passed in 1799, could it be renounced in 1801 so that it would have to pass twice more to move on to the states? If it was renounced in January of 1802 could it be passed for the first time in June of 1802? Would the House and the Senate have to pass during the same congressional term, or could the House pass in 1998, have the Senate pass in 2000, the House repass in 2002, and the Senate repass in 2005? Would the measure be subject to presidential veto? What to do about the fact that only one third of the Senate will face election in a given cycle, therefore making the "referendum on the Amendment" effect that Angus describes inapplicable to most of the Senate? I don't mean these question to frame an objection, so much as friendly but skeptical enthusiasm. C.f. Michael Stokes Paulsen, Double Jeopardy Law After Akhil Amar: Some Civil Procedure Analogies and Inquiries, 26 Cumb. L. Rev. 23 (1996).

My own solution would have been, in Jeffersonian style, to have a mandatory Constitutional Convention every 10 or 20 years with the power to propose amendments to be ratified by the states. Each of these proposed amendments would have a 10 or 20 year time limit (depending on the frequency of the conventions) and would be forbidden to render themselves or any other provision of the Constitution unamendable. And each would still have to garner the assent of 3/4 of the states. I haven't thought through my own suggestion in sufficiently skeptical style (Who would attend this "convention", and what parliamentary rules would they use? What would happen if they refused to propose any amendments? What would happen if they proposed multiple amendments inconsistent with one another? &c.) and I think it might destabilize the textual Constitution a little too much for my tastes. Then again, there is some pretty weird stuff in the Constitution already (e.g., Art. II Sec. 2 Cl. 2 (Opinions clause); Amdt 2, Cl. 1 (preamble); Amdt 20, Sec. 2, Cl. 1 (Congress must meet at least once a year) and so on), so I don't know how it would play out.

And no blog post on this would really be complete without mentioning Professor Akhil Amar's provocative suggestion that we the people retain an inalienable legal right, under our current Constitution, to amend it by majority vote. Philadelphia Revisited: Amending the Constitution Outside Article V.

My post yesterday, which criticized the NYT's sudden affection for home rule in gun regulations when the D.C. gun ban was at issue, has garnered several replies via email, and this post from PG. For the most part, the criticisms seem to be that because D.C. residents do not vote for members of Congress, Congress should be extra-obliged to goven as if they did.

Relatedly, the argument goes, Congressional legislation that superintends state prerogatives is not that worrisome because the states had a hand in making it. (Leaving aside, of course, the fact that in this post-17th-Amendment world, Senators frequently have interests, platforms, and programs that differ, for better or worse, from those of the state government.)

First off, note that this D.C.-deserves-extra-care argument probably should not be universalized. There are of course billions of people in the world who also do not elect members of the United States Congress (nor even the president). Obviously, their lives and rights should not be ignored by the United States, but I take it that few people, even globalists like myself, think that "political fairness" mandates letting the desires of foreign non-citizens veto the desires of voting Americans.

And of course residents of D.C. (unlike foreign non-citizens) elect a president who has veto power over and various other administrative weapons against Congress. They also (unlike foreign non-citizens) have the plenary right to leave the district and set up shop across the border in Maryland or Virginia and begin voting for Congress. This is not to say that D.C. is a foreign country, just that it is far from clear that the mere fact that those who choose to live in a federal enclave rather than a state can't elect congress members from that state is a violation of "political fairness".

There are valid reasons to think that some local matters should be left local, even when Congress has the ultimate authority and responsibility to mind the shop. But given how attenuated the structural safeguards of federalism in this country actually are, the argument for Congressional-Supremacy-Everywhere-But-The-Federal-Enclave. will be quite intriguing, and there's no evidence that the NYT intends to make it.

[For what it is worth, I favor a degree of decentralization in both states and federal enclaves, but here, given the presumptive unconstitutionality of the D.C. gun restrictions, I am inclined to give Congress extra leeway to enforce its Constitutional oath.]

UPDATE: I concede. Partly.