12 Const. Comment. 171 (1995)
The Nominee is. . .Article V

handle is hein.journals/ccum12 and id is 179 raw text is: THE NOMINEE IS ... ARTICLE V
Stephen M. Griffin*
In any list of least favorite constitutional provisions, we
should not ignore the provisions protecting slavery, such as Arti-
cle I  9 cl. 1 (providing that the slave trade could not be prohib-
ited prior to 1808) and Article IV  2 cl. 3 (the fugitive slave
clause). These provisions may have been superseded, but they
have not been expunged from the text and they should not be
That said, there are a number of constitutional provisions
that have always struck me as questionable. Article I  4 leaves
the procedures for holding federal elections in the hands of the
states., This has meant that there has never been a uniform law
of voter registration (contributing to election fraud and lower
turnout in the twentieth century) or a uniform federal ballot
(leading to voter confusion in some states). The method of presi-
dential election specified in Article II  1 was an unstable com-
promise, resulting in the need for the Twelfth Amendment only
fourteen years after the Constitution was ratified. It would also
have been better had the Framers tried to define at least a mini-
mal conception of the judicial power in Article In  1 (or, for
that matter, the executive power in Article II  1).
My nominee, however, is Article V, which has historically
operated to make the Constitution very difficult to amend.2 It is
true that the question of how to provide for change poses diffi-
cult choices for those who create a constitution. If the constitu-
tion makes change too easy, there is a risk that the constitution
will not structure politics, but will be hostage to it. But making
change too difficult may cause political instability or force change
to occur through a non-constitutional process. The procedure for
change that the Framers provided in Article V appears to reflect
a judgment that making change too easy is the greater danger.
* Associate Professor of Law, Tulane University.
1. See the contribution of Jeffrey Rosen to this symposium.
2. On matters of amendment and much more, see Sanford Levinson, ed., Respond-
ing to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton U.
Press, 1995).

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