49 S OTIRIOS A B ARBER C ONSTITUTIONAL F AILURE 1 2014 50 Here the work of

49 s otirios a b arber c onstitutional f ailure 1

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49. S OTIRIOS A. B ARBER , C ONSTITUTIONAL F AILURE 1 (2014). 50. Here, the work of Professor Barber is especially relevant. He explains that “[v]enerating the Constitution is a bad idea because it obscures . . . constitutional failure and the corresponding need to promote reformist institutions.” Id. at 18. On the other hand, he says, it makes considerable sense to “commemorate” and even “venerate” the Founding because to do so is to “revisit a perspective in which the Constitution is both a mere proposal and a mere set of means” to put in place institutions that will achieve desirable political goals. Id. at 18–19. In other words, it is better to focus on the “founding act,” id. at 18, of seeking to create a system of government that will serve ends such as those referenced in the preamble, rather than consider the specific provisions of the document itself immutable to reform when the goals are no longer served. Indeed, resistance to changing the Constitution appears inconsistent with the document itself: “Fidelity to the Constitution as written would entail reaffirming the Constitution’s claim to be an instrument of its ends, and one could not reaffirm that claim without subjecting it to a critical examination that constitution worship precludes.” Id. at 118. As Professor Barber explains: Swearing to preserve and defend the Constitution is not promising to leave it as is, for the Constitution itself provides for change in Article V. . . . The amendability of this constitution and therewith the opportunity and the right to redo our founding is thus made part of what we take an oath to preserve and defend. Our constitution is thus officially ‘open to thought’—that is, open to reasoned criticism and change. Id. at 21.
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2018] A MENDING THE A MENDMENT P ROCEDURES 129 at the state level. Consideration of those procedures sheds some light on the benefits and feasibility of the proposal—as well as some potential hazards. A. State Amendment Mechanisms States provide more mechanisms for altering their constitutions than are available under Article V to amend the federal Constitution. 51 Indeed, a feature of state constitutional history is that over time amendment processes have been liberalized. 52 One route at the state level is to hold a constitutional convention. Most state constitutions thus empower the state legislature to propose a convention (in some instances, a super-majority vote is required) and, if voters approve the proposal by referendum, the convention is held. 53 In addition, every state constitution except that of Delaware provides for the state legislature itself to propose amendments for voter consideration in a state referendum. 54 Two states, Florida and New Mexico, provide for a commission that operates separately from the legislature to propose amendments. 55 Eighteen states provide for amendments to be proposed and adopted through voter initiatives, without the need for any legislative approval. 56 In most states, the ratification of a proposed amendment requires a simple majority of voters approving the proposal by referendum.
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