American News

Article Five Is Now Killing the United States

Like any living thing, a society must learn to adapt if it is to survive. America’s legal and constitutional system makes meaningful change extraordinarily difficult. This inability to change is choking America’s ability to remain the vibrant republic which it once was and can still be.

Columns at the U.S. Supreme Court © Rena Schild/

May 31, 2023 01:56 EDT

A nation, like an animal, is a living thing. It changes, as does its environment change, and it must adapt to its internal and external environment if it is to survive.

“It is in changing that things find repose,” says the philosopher Heraclitus. The world that we live in is a world of flux, and things that resist this flux die. Mountain ranges wear down because they attempt to stand still against the wind and the rain. Biological life, which at first glance seems much more fleeting than geological features, has survived on this earth for billions of years while the mountains wear away. Land plants and the Appalachian Mountains both formed in the same geological period, but now the Appalachians are eroded hills while plant life grows thick on top of them, eroding them further.

Without belaboring the point too much, we can say that life is not just change, but organized change, change according to a definite plan. An organism must react to its environment and modify itself and its behavior in order to survive, but it does so while preserving the nature that it has from birth. Even evolutionary history, which enacts no preconceived plan, does not simply change without direction. Mutation is without direction, but evolution is mutation guided by selection. This is why crustaceans turn into crabs, and mammals do not. What we will become is guided by the nature and the needs of what we are. What life enacts is not random change, but change that preserves its existence and, so to speak, mission. Deer developed antlers so that they could keep being deer.

To survive is to change

A state is like an animal, but it is most like that rational animal, man. It is capable of understanding its core principles and values and of planning and enacting deliberate change in order to live up to those values. We are not called to evolve blindly, but by deliberation and understanding to move forward into history with our eyes wide open. Using reason—our ability to conceptualize, to dialogue, and to plan—we humans do what all life does, but intentionally. And when we cease to do this, we die.

States die. Civilizations die. History is all too full of tales of the calamities, wars, and devastations that occurred when statesmen and citizens became either too complacent, too divided, or otherwise too unequipped to take account of reality and affect adequate change. The Polish-Lithuanian Commonwealth, infamously crippled by the broad right of individual nobles to veto legislation, precipitating a humiliating and disastrous partition between its land-hungry neighbors and over a century of suffering for the Polish people. The same pattern has played out time and time again in human history from the dynasties of China to the republics of Latin America as corruption, factionalism, and poorly functioning political processes paralyze states, rendering them unable to reform.

I stand here with the strange privilege of living in one of the most successful and powerful states that have existed in the history of this planet, the United States of America. This country has astounded the world more than once with its capacity for innovation and dynamism, finding solutions hardly imagined by generations past. But there is a sickness in this country, an ideologization of what are taken to be our values that is slowly killing that dynamism, which is meant to come to the defense of our core values and is indeed one of them. What I am talking about is the notion, so much in vogue in the current popular discourse but so alien to the founders of this nation, that every jot and tittle of the Constitution—not only its principles and values, but the mechanisms that were originally crafted to enact those principles—is so imbued with the wisdom of that founding generation that it cannot be changed.

Everyone understands, perhaps, that on a basic level no commonwealth can exist very long without some change. “Even the barley-drink,” says our friend Heraclitus, “will separate if it is not stirred.” Yet was it not that same philosopher that admonished a republic to “fight for its laws as it does for its walls”? For what could protect it from upheavals of a social, economic, military nature or otherwise if, without its laws, it were no community of citizens but just an unorganized mob of men and women? Only a fool would argue for a nation with no respect for the laws that have created it and guided it, but all the same it would be folly, too, to forget that it was reason that crafted those laws, and it is still reason—the reason of the living, communicating, rational animals that we are—that must judge those laws and modify them, in an orderly way and for the common good.

The United States has a legislation problem

American law is in many ways uniquely hard to change. Even ordinary legislation must pass through an intricate path of checks and balances in which, at every step of the way, there are barriers that can stop proposed legislation in its tracks. It may die in committee, fail to pass on the floor of the chambers of Congress which often operate on razor-thin partisan majorities, fail to achieve the agreement of the House and of the Senate, experience filibuster in the Senate, suffer veto by the president, and so on…it is a wonder that any laws ever get passed at all. Of course, this kind of legal process is going to be an essential part of lawmaking in any democracy, but the American process has so many choke points that it is far easier to kill a bill than it is to pass one.

This creates a bias in favor of old legislation rather than new legislation which is, on the face of it, irrational, since the time at which a law was crafted has no essential bearing on whether or not it is wisely framed. The new is not automatically better than the old, but neither is the old automatically better than the new. If old laws are to continue, it should be because human minds, in a legally structured process, have considered them and judged them prudent to continue, not because of an institutional structure so full of snags that the previous way of doing things is mindlessly approved simply because it is too difficult to do anything else.

“Ah,” I can hear the reply coming back, “but this is by design. A government that governs less governs best, after all, and the founders intended to make it very difficult to pass new laws.”

If this is the founders’ intent, it is ill-served by this mechanism. New laws do not always mean more government; indeed, there are good reasons to think that the growth of government can be fostered by the rigidity of laws, rather than hampered by them. More of this anon. But the more basic notion is this: if small government, or any other ideal that we prize, is to be the aim when we are deciding how to craft our laws, then we must do so consciously, keeping that ideal in mind when we make laws and adjusting every measure to best suit it. We can only do this consciously, not by trusting unconscious processes like legislative inflexibility to do the work for us. We must choose to be what we will be: A republic cannot better itself by hindering its own ability to make choices. Only a nation self-conscious of its own activity can keep itself free. Legislative snarls will not keep you free.

The most fundamental reason underlying the fact that unconscious processes will not keep one free, or serve very many other useful purposes, is that what is done unintentionally will inevitably have unintentional consequences. Of course, all human endeavors on this side of heaven will have unintentional consequences, but the surest way to multiply them is to hinder reason’s ability to monitor, to anticipate, and to forestall negative events by assessing and readjusting its methods.

Legislation problem expands executive and judicial power

If Congress does not issue its own guidance in the form of laws, the president will find his own way. This leads to the expansion of executive power, about which enough ink has been spilled that I need not continue the subject here. The bureaucracy will find its own way, and what ought to have been laws, deliberated by civil society and enacted by the people constitutionally empowered to make laws for the republic, instead become regulations, of dubious democratic merit and perhaps of opaque origin. The courts will find their own way, concocting in legal decisions directives which often have very little to do with the text, history, or intent of the laws that they claim to find their source in. But the executive and the courts are not simply being irrational or selfish. They are making do in a system where the direction that ought to be given by law is found lacking. And this is because the legislature cannot act.

I don’t think either liberals or conservatives are thrilled with an imperial presidency or with judge-made law.  Such channels can provide temporary wins, but each side can count just as many smarting losses. In the end the real loser is an America which is seeing her ability to deliberate clearly and openly and to make laws that best suit everyone weaken with every year.

Nowhere is this country’s inability to legislate more acute than in that most vital legislation of all, our Constitution. Here, Article Five mandates that in order to make any change at all to the Constitution, in addition to proposal by a supermajority in both houses of Congress (aside from an alternative convention process which in 234 years has never been used), a proposed amendment must be ratified by a whopping three quarters of states or state conventions.

This extraordinarily high bar hearkens back to the confederal origins of the union, in which the nation’s first constitution behaved more like a treaty, requiring unanimity, than like the constitution of a republic. But the United States is a republic, in spite of the many and time-honored aspects of federalism that it possesses. It is conceived both by its own citizens and by the global community as a nation among nations, not a supranational organization, and as a nation it ought to have the constitution of one. It should be able to decide its own destiny, by common as well as by fundamental law, and it should not be subjected to the levels of paralysis, often more reminiscent of the EU or even the UN, that do indeed more befit a treaty organization than a constitutional republic.

US constitutional law is in disarray. Judges and legal commentators, all the way up to the high court, seem torn between a rigid originalism which would tie the world’s hegemonic power to the legislative framework framed for a league of thirteen recently liberated and mostly agrarian colonies, and a “living constitution” model which seems to be employing a biological metaphor not in support of an ordered and self-conscious development of a political community operating through rational laws, but to support the departure from those laws into a zone of individualistic, moralizing, often ad-hoc judicial oligarchy. Neither of these will do and indeed neither should we expect that any judicial philosophy should. The problem is not with those who interpret the laws, but with those who make the laws.

We need a different system. We need to stop hiding behind institutions and processes which no longer work for any of us as an excuse not to step up and take control of our future. We need to stop using processes as a way to bludgeon each other and exploit thin majorities which will inevitably reverse and learn to reason with each other and develop genuine consensus. Only genuine consensus can save us, and only genuine consensus is worthy of the kind of social and rational beings that we are.

I am proposing that we make amendments easier. What I am not proposing, however, is that some new clever set of norms and processes will make all of the difference. Ultimately, the change will not come from some new system but from a new mindset which will make new systems necessary. We need to start to talk to each other. And we need to listen.

Going down a dangerous path

In ancient times, the most powerful republic in the world was the one that belonged to the Romans, a people more famous for devotion to their laws and their constitutional customs than we. Through it all, the wisdom of the senate, the energy of the people, and the ingenuity of the magistrates guided Rome from a tiny vassal city to the Etruscans to a superpower that dominated the entire classical world. Its laws were singularly well-developed, intricate, and socially entrenched, but at the same time the republic—ultimately, unlike ours, a direct democracy—could modify its most basic laws with a single act of legislation, something it did time and time again to resolve the numerous social and military crises the city was beset with in its long history.

When the Roman democracy finally did come to an end, it was not because of its mechanisms of flexibility, but rather because of the degradation of them. The republic did not end because a demagogue whipped the people up into a fury and convinced them to vote away their democracy—although this sort of thing certainly can happen—but through a much longer, slower process of loss of political consensus-building, the increasing abuse of its institutions through partisan corruption and obstructionism, which eventually necessitated the use of illegal force as a brute substitute for consensus in order to stabilize the state.

After a century of strongmen—Sulla, Pompey, Caesar, Antony—tried and failed to use military authority to shore up a republic that no longer knew how to govern itself, the empire was founded when Octavian, using his personal prestige, took control ultimately not as a legally appointed dictator but as a private citizen granted extraordinary powers to do what the magistrates and the senate could not do. Even Tiberius, his successor, was surprised to find the senate so unwilling to govern that he was caused to continue this unorthodox arrangement. Eventually, the imperial role would evolve into an unfettered despotism.

This is how a republic dies. When it forgets how to deliberate, it degenerates into political gamesmanship. When political gamesmanship degenerates, as it inevitably does, the door is opened to violence. And violence can only breed more violence.

We cannot allow this to happen. If we are to avoid this fate, we must learn how to legislate. And to do that, we must rediscover how to debate, and how to think.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.


Only Fair Observer members can comment. Please login to comment.

Leave a comment

Support Fair Observer

We rely on your support for our independence, diversity and quality.

For more than 10 years, Fair Observer has been free, fair and independent. No billionaire owns us, no advertisers control us. We are a reader-supported nonprofit. Unlike many other publications, we keep our content free for readers regardless of where they live or whether they can afford to pay. We have no paywalls and no ads.

In the post-truth era of fake news, echo chambers and filter bubbles, we publish a plurality of perspectives from around the world. Anyone can publish with us, but everyone goes through a rigorous editorial process. So, you get fact-checked, well-reasoned content instead of noise.

We publish 2,500+ voices from 90+ countries. We also conduct education and training programs on subjects ranging from digital media and journalism to writing and critical thinking. This doesn’t come cheap. Servers, editors, trainers and web developers cost money.
Please consider supporting us on a regular basis as a recurring donor or a sustaining member.

Will you support FO’s journalism?

We rely on your support for our independence, diversity and quality.

Donation Cycle

Donation Amount

The IRS recognizes Fair Observer as a section 501(c)(3) registered public charity (EIN: 46-4070943), enabling you to claim a tax deduction.

Make Sense of the World

Unique Insights from 2,500+ Contributors in 90+ Countries

Support Fair Observer

Support Fair Observer by becoming a sustaining member

Become a Member