Article Five and the Spending Power

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. brad says:

    Aren’t the Reconstruction Acts and their requirement to ratify the Fourteenth Amendment or be totally disenfranchised governed by military law a more radical version of the hypo?

  2. Gerard Magliocca says:


  3. Brett Bellmore says:

    The hypo is kind of silly in a modern context, it requires a Congress which views Article V as necessary to ‘change’ the Constitution. Congress has not made a serious effort to pass an Article V amendment in decades, the preferred approach today is to simply select Justices who will interpret the Constitution as somehow already meaning what Congress wants. This has the advantage of not allowing the states to refuse to ratify.

    A far more likely scenario is one where the states themselves make an effort to circumvent Congress with an Article V convention, and Congress is attempting to prevent the convention from happening, or the states from ratifying the product.

    Though even there the fate of the 27th amendment shows Congress could likely use the judiciary to render the amendments moot.

  4. Erik M says:

    I understood the purpose of saying an amendment is a political question is that a Court can’t invalidate part of the document which gives it its own authority. It would, in effect, give them tremendously greater theoretical power. A similar analogy is how impeachments are political questions. A Judge can’t invalidate a process that is used to remove them.

    Anyway, given the level of coercion in the Reconstruction amendments, I can’t see anything going beyond that. Even if it were justiciable, it’s night and day compared to normal statutes.

  5. Joe says:

    The approach alleged in #3 is not something that just happened in recent decades and the responsibility should be put more on executives, who actually “select” the judges. Congress has always generally agreed to the choices.

    Congress showed less willingness to change before the 20th Century. Putting aside a special case involving a civil war, the document was not amended at all for a long time. Compared to a few decades, this is pretty notable. I continue to disagree with Brett’s opinion as to the 27A.

    I doubt the hypo will happen, but who knows, but I guess it would violate the principles of Sebelius at some point.

  6. Joe says:

    As to the Reconstruction Amendments, Prof. Akhil Amar argued that the “would you rather” test there was warranted by the republican government provision — the South showed evidence of not protecting that and ratifying them would be a sign of good faith. Given the aftermath of the Reconstruction, one might argue the states came off rather easy for quite some time. In time, as their good faith would be shown, the choice might be less justified.