No amendment provision in the US constitution

What if, because of an oversight or general orneriness, the 1787 Constitutional Convention did not provide for an amendment process?

There are actually multiple PODs here, but I think the discussion of all them can be contained in one thread. The multiple PODs involve how the lack of a Bill of Rights would have been handled:

a) No amendment provisions and no Bill of Rights or their equivalent in the articles, and the whole thing flops because the states don't agree. There would probably be another attempt, but this has massive butterflies.

b) The Constitution is forced through without a Bill or Rights or an amendment process amid general popular discontent. The question now is how long the new regime lasts.

c) Pretty much the Bill of Rights is incorporated in the original Articles, and it gets ratified, and an amendment process is omitted by an oversight. The issues that prompted IOTL the 11th and 12th Amendments are not fixed, so for a start the country is saddled with an unworkable process to elect the President.

Option c is interesting because, instead of the government collapsing or a new convention, there is the option of workarounds through creative interpretations by judges and officials of the language and in effect the growth of an unwritten constitution. This sort of happened IOTL with an amendment process, but one that is difficult compared to most countries.
 
I commented on David A. Strauss's "The Irrelevance of Constitutional Amendments" https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2986&context=journal_articles years ago in soc.history.what-if:

"What if the US Constitution did not contain Article V, allowing amendments? At the time of the drafting of the Constitution, written constitutions were in some ways a new idea, so the idea of a formal amendment process was also new. Five of the state constitutions at the time had no provision for formal amendment. So let's say the US Constitution also had no such provision. (Of course, given that one of the complaints about the Articles of Confederation was the impossibility of revising them without unanimous consent of the states, this may seem unlikely. Yet one *could* argue that while unanimity was an unreasonable stumbling block to creating a sufficiently powerful federal government, *once that government was created by the Constitution* there should be a requirement of unanimity to prevent it from growing even stronger.) How much difference would this make? Not much, argues David A. Strauss of the University of Chicago Law School:

"Many people have observed that our system has other ways of changing besides formal amendments: court decisions, important legislation, or the gradual accretion of power, as in the Presidency during this century. But these are not just *other* ways in which the Constitution changes. It is only a slight exaggeration to say that these are the only means of change we have. To be precise: subject to only a few qualifications, our system would look the same today if Article V of the Constitution had never been adopted and the Constitution contained no provision for formal amendment. Of course this claim involves a degree of counterfactual speculation and cannot be proved with certainty; if the Constitution really contained no provision for formal amendment, much else about the way constitutional law has developed might be different. And there are, in any event, some qualifications and arguable exceptions to this proposition. But even taking into account all the qualifications and exceptions, the pattern is clear: constitutional amendments have not been an important means of changing the constitutional order.

"I will try to show this by establishing four propositions. First--a relatively familiar point--sometimes matters addressed by the Constitution change even though the text of the Constitution is unchanged. Second, and more dramatically, some constitutional changes occur even though an amendment that would have brought about that very change is explicitly rejected. [Strauss has the Child Labor and Equal Rights Amendments in mind.] Third, when amendments are adopted, they often do no more than ratify changes that have already taken place in society without the help of an amendment. The changes produce the amendment, rather than the other way around. Fourth, when amendments are adopted even though the society hasn't changed, the amendments are systematically evaded. They end up having little effect until the society catches up with the ambitions of the amendment."

"Strauss does not deny that constitutional amendments serve some functions. For one thing, they provide "rules of the road" in determining matters which are not terribly controversial in themselves, but still have to be clearly settled one way or another (what day the president takes office, what to do in the event of his disability, etc.). "This is not a trivial function for amendments to serve, but it is far removed from providing the central means of constitutional change. And a formal amendment process is probably not needed to serve this function. If a formal amendment process were unavailable, it seems likely that our system would develop some other way of settling these issues, at least in most cases."

"Another function of amendments is to "suppress outliers"--i.e., make a very widespread consensus (e.g., that there should be no poll tax in federal elections) into one that must be accepted by *all* the states, not just most of them. As Strauss notes, at the time the Twenty-Fourth Amendment was passed, only four states still had a poll tax. Moreover, "it seems reasonable to conjecture that, if there were no formal amendment process, the courts would allow Congress greater power to act in areas where the national consensus was strong... Probably the most accurate description of amendments that suppress outliers, then, is that they turn near-unanimity into unanimity a little sooner than that would otherwise have happened."

"Anyway, read the article to see how Strauss tries to make even the Civil War Amendments relatively insignificant--the Thirteenth Amendment merely hastened the abolition of slavery in a few border states, the Fifteenth was unenforced for many decades in the Southern states where most blacks lived, etc. Furthermore, he thinks the Supreme Court would have found some way to outlaw state-mandated segregation even without a Fourteenth Amendment (perhaps the Guaranty Clause--which a number of supporters of the Civil Rights Act of 1866 mentioned).

"What about the Progressive Era amendments? There would have been an income tax without the Sixteenth Amendment; the *Pollock* case (which held that such a tax was a "direct tax" requiring apportionment among the states) "had all the earmarks of a precedent that was destined to be overruled--it was inconsistent with earlier cases, it was immediately given a narrow construction by subsequent cases, and it faced strong popular opposition. The Sixteenth Amendment put an end to the sideshow that Pollock began, but a sideshow was what it was." The Seventeenth Amendment? Popular election of senators would have come about anyway, through more and more states adopting the "Oregon system" in which state legislators were required to say whether they would vote for the senatorial candidate who had received the most votes in a single primary election; not surprisingly, almost all the legislators took the pledge. The Nineteenth Amendment? It "certainly suppressed outliers; it made women's suffrage uniform before it otherwise would have been. Beyond that, probably the best estimate is that if the suffragists had been forced to concentrate solely on the state level, they would have achieved substantial, although not complete, success, at least within a few years after 1920."

"(One thought on both the Fifteenth and Nineteenth Amendments--Congress might have tried enacting prohibitions against race and sex discrimination in *federal* elections on the same "times places and manner clause" reasoning that Justice Black used in *Oregon v. Mitchell.* I doubt that many states would after 1920 burden themselves with the administrative costs of having two separate electorates just to keep women from voting in state elections. OTOH, I certainly can see southern legislatures which would be willing to adopt a two-electorates system to prevent blacks from voting in state elections. So ultimately Congress or the courts would have to directly outlaw racial discrimination in all elections, probably using the "guaranty" clause.)

"Strauss suggests that if you leave aside the very early amendments--which can be seen as part of the original process of adopting the Constitution--the only amendment which may have made a real difference was the Twenty- Second--without it, Clinton seems likely to have run for a third term in 2000 (assuming that Ike wouldn't have changed history and butterflied the Clinton administration out of existence by seeking--and almost certainly winning--one in 1960).

"I'll have some comments later, but first I would like to hear some of the thoughts others have on the article (and please do read the article itself, not just my summary of it--Strauss does mention and attempt to answer some of the objections you doubtless have...)"

https://groups.google.com/d/msg/soc.history.what-if/csoPaOCzAbg/LTzO1f9FTukJ
 
This is interesting, thanks.

One caveat is that changes to the Constitution have generally addressed what could be termed rights and social issues (the latter to include Prohibition). Its often noted that there have been few constitutional changes to the structure of the federal government itself.

Akhil Amar seemed to think that the 12th, 22nd, and 25th amendments did have an effect, mainly on the Vice Presidency. The 12th Amendment reduced its importance by making the Vice President a side-kick of the President, while the 22nd in particular and the 25th increased its importance, though arguably the 25th Amendment is another example of codifying what was already accepted practice under the unwritten constitution.

However, the 12th Amendment is something of a sticking point, assuming the first ten and the twenty seventh were written into the Articles. The presidential election system codified by the Articles really was a mess and its hard to see how you could get a fix without a re-write.
 
On the 12th Amendment: Strauss does say that he is not primarily talking about the first twelve amendments, which he sees as part of the process of establishing the original frame of government--though he does add that perhaps even their importance is exaggerated. Personally, I can't consider the Twelfth Amendment as part of the original Constitution in the way you can argue the first ten amendments were. However, I think its importance is exaggerated. The mistake of 1800--allowing the intended presidential and vice-presidential candidates of a party to get the same number of electoral votes--would not be repeated. Already in 1804, the Republicans had formed a committee to see that this would not happen again and to specify which Republican electors should *not* vote for George Clinton in case the Twelfth Amendment was not ratified in time.
 
Well, considering how well the system of the electoral college worked before the 12th amendment, I wouldn't be surprised if part of the country successfully split to form a better working system... or maybe even invite a King to take over. Not that the British actually wants them back, but the original system was sufficiently dysfunctional someone would try.
 
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