Volume 67, No. 4, 2020

ARTICLES

Foreword: Is it Time to Amend the Constitution?
Miguel Schor

The Case for Presidential Illegality in Constitutional Amendment
Richard Albert

The current amendment stasis in the United States raises a serious question with potentially grave consequences for the U.S. project of constitutional democracy: Has the Constitution seen its last amendment?The answer is quite likely yes—if the extraordinary level of political disagreement in the country remains as high as it is now. But this affirmative answer presupposes that reformers will continue to consider themselves bound by the codified rules in Article V. What if reformers instead come to believe the political climate makes it necessary to pursue unconventional methods to break through the barriers standing in the way of a constitutional amendment? Freed from their strict fidelity to the rigid rules in Article V, reformers might ultimately innovate a new path to formal constitutional change. This strategy would of course invite the powerful claim that reformers are acting illegally. But could their breach of Article V be simultaneously illegal yet legitimate? In this invited contribution for a symposium held at Drake Law School on the topic Is it Time to Amend the Constitution?, I suggest the answer is yes, provided reformers justify their violation of Article V as both a return to the popular-sovereigntist beginnings of modern U.S. constitutional democracy and an essential step to ensure the Constitution remains responsive to the needs of the country and reflective of the people’s values.

Albert Q&A

Updating the Constitution: Amending, Tinkering, Interpreting
Richard S. Kay

The U.S. Constitution is now 230 years old, and it is showing its age. Its text,taken in the sense that its enactors understood it, is, unsurprisingly, inadequate to the needs of a large, populous twenty-first century nation. The Constitution creates a government that is carefully insulated from the democratic preferences of the population. It fails to vest the central government with the tools needed to manage and regulate a vast, complicated, and interrelated society and economy. On the other hand, it guarantees its citizens protection of only a limited set of human rights. Notwithstanding these blatant defects, the means provided in the
constitutional text to change it, to improve it, are insufficient to make it
appropriate for current conditions. There is reason to be skeptical of studies purporting to measure the difficulty of constitutional amendment procedures. But combined with an inspection of the text and the history of amendment, this research is persuasive and supports the claim that reliance on Article V’s procedures are unlikely to successfully reform the Constitution. On top of these objective measures, moreover, constitutional revision in the United States is hampered by a widely held, though uninformed, opinion that the current Constitution is still protecting national welfare and that any change—any tinkering—with the rules in that document bears a heavy burden of persuasion. Reform by amendment, that is, appears to be a dead end. The U.S. judiciary,
however, has, in an important way, come to the rescue of a polity that would otherwise be in a perpetual thrall to the principles of the eighteenth century. In “interpreting” the Constitution, the courts have gone a long way to correct the defects listed. But their “interpretations” have little relationship to the fixed rules installed by the constitutional enactors. Judges have assumed what amounts to a power of constitutional amendment. But such an amendment technique is irregular, unpredictable, and devoid of the sanction of the “people,” past or present, whose assent is usually thought essential to constitutional legitimacy. The United States has escaped the disadvantages of an outdated Constitution but at the price of subverting the constitutional rule of law.

Kay Q&A

Article V After 230 Years: Time for a Tune-Up
Sanford Levinson

No one, including the Framers, believes the Constitution as drafted in 1787 is perfect. That is why we have an amendment clause, after all. But, in contrast to U.S.state constitutions, amendment of the national Constitution has been remarkably infrequent, not least because of the formidable obstacles Article V places in the way of those who seek amendment. Those defending against constitutional change have
great advantages against those playing offense, and this, perhaps understandably, leads most rational people, when thinking of how to invest their scarce time, money, and energy, to avoid going down the road of constitutional amendment (or, even more
so, calling for a new constitutional convention).


Given my own belief that the Constitution of 1787, with its infrequent
amendment, is significantly defective and, indeed, even dangerous with regard to our future as a functional polity, I believe we need to think far more seriously than we currently do about potential amendment or even a new constitutional convention, which I in fact support. It may be the case that Article V worked tolerably well in the early years of the U.S. republic, but it is clear that, at present, it is a severe impediment
to even thinking—and engaging in a national discussion—about the kinds of constitutional reform that may be necessary. To look to the Supreme Court to effectively supply necessary de facto amendments, even if we regard that as a legitimate function of the Court, is chimeric with regard to the features of the Constitution that are truly hard-wired and nearly impossible to amend instead of being open to judicial
interpretation.


One should not drive a car and be indifferent to the possibility that the brakes might give way at any moment; this is why we take our cars for inspections or tuneups. One might even analogize this to going to the doctor at regular intervals, even if we do not feel ill, in order to get a checkup. A constitutional convention would be an occasion for just such a checkup, even if the happy conclusion was that the Constitution really did not need any significant change at all.

Levinson Q&A

Amending Constitutional Myths
Lisa L. Miller

Before any discussion of how to amend the U.S. Constitution or which
aspects of it are most in need of revision, we must first determine what it is we want our Constitution to do. This Article explores the language that is often used to highlight the virtues of the U.S. Constitution that seek to restrain government action, focusing on three terms in particular: checks and balances, states’ rights, and tyranny of the majority. I refer to these terms as constitutional myths, illustrate their conceptual ambiguity and then offer a translation of them into the political language of power. In doing so, this Article highlights the partisan deployment of these constitutional myths in ways that obscure who is wielding power, how it is being used, and to what end. Amending the Constitution requires a hard look at how the existing Constitution shapes power in ways that advantage the few over the many and how our current constitutional myths serve to obfuscate this simple fact.

Miller Q&A

NOTES

Life, Death, and Revival of Electronic Wills Legislation in 2016 Through 2019
Nicole Krueger

Paper files, written signatures, and filing cabinets seem to be relics of a time before the Internet and smart devices. Most things in life today can be completed electronically and simply stored in the cloud. Society’s ever-increasing dependence upon electronics makes it natural for people to expect the ability to execute and store their wills electronically. However, states have hesitated to support electronic wills legislation, and proposed legislation has raised concerns regarding fraud and hacking, as well as a lack of procedures for preservation and storage.


This Note analyzes the electronic wills legislation proposed in 2016 through 2019, discusses the concerns raised by the legislation, and identifies technological advances that can alleviate many of those concerns. By utilizing technologies such as electronic notarization, biometrics, blockchain, and public key infrastructure, states can pass electronic wills legislation that provides both convenience and security.


As states determine how best to utilize these emerging technologies, they can begin to recognize electronic wills without passing new electronic wills legislation. The harmless error rule, already accepted within the Uniform Probate Code and recognized by 11 states, allows a court to disregard harmless errors in the execution of a will and should be adopted in Iowa and other states to honor a testator’s intended will—paper or electronic. Even without the adoption of the harmless error rule, Iowa can begin recognizing electronic wills by relying on the
broad definitions of writing and signature already present within Iowa’s code.

The Federal Communications Commission and Its Deregulation of Media: Encouraging Innovation or Inhibiting Democracy?
Dana Van Gent

Every text we send, Netflix show we binge, football game we watch on cable programming, or radio news report we listen to is monitored, either directly or indirectly, by the Federal Communications Commission (FCC). During the twentieth century, the FCC started to relax its regulatory standards, and this deregulatory trend has continued into the twenty-first century. Currently, U.S. media is owned by only a handful of companies, controlling the majority of what Americans read, watch, or listen to. This Note explores the regulatory role of the FCC, its deregulatory trend, and the ramifications of that deregulation. Lastly, this Note discusses alternatives to the current FCC regulatory method and recommends a regulatory solution to discourage continued media consolidation.

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