—Richard Albert, Boston College Law School
For many, the bête noire in the United States Constitution is Article V. Sanford Levinson says that it “brings us all too close to the Lockean dream (or nightmare) of changeless stasis.” Bruce Ackerman calls it an “obsolescent obstacle course.” And Donald Boudreaux and A.C. Pritchard describe it as “dramatically flawed.”
Article V entrenches the rules for formally amending the United States Constitution. It requires two-thirds approval in both houses of the U.S. Congress to propose an amendment, and approval from three-quarters of the states to ratify it. (Article V also authorizes a constitutional convention, but that procedure has yet to be invoked.)
It is so difficult to formally amend the United States Constitution that Stephen Griffin has observed that “Article V comes close to requiring unanimity to approve any amendment as a practical matter.”
This raises an interesting question: Is Article V the modern liberum veto?
The liberum veto is Polish in origin.
Prior to Poland’s adoption of its constitution in 1791, the national legislature operated under a rule requiring unanimity in order to pass a law, approve a resolution, or generally make any decision whatsoever. A single person could stand in the way of an otherwise collective choice and could sabotage the workings of government. Each member of the Diet, as the Parliament was known, held this “liberum veto,” the power to withhold her consent from the Diet, with the consequence that the matter upon which she exercised her veto would fall to defeat.
A Diet legislator would only have to declare “veto” or “Nie pozwalam” (“I do not allow it”) and the Diet would be frozen from further action on the matter. The larger consequence was legislative paralysis and the corruption and capture of parliamentarians by self-interested parties, both domestic and foreign. Jean-Jacques Rousseau condemned the liberum veto as subjecting Poland to the tyranny of a minority of one.
Article V does not create a tyranny of a minority of one. It does not require unanimity at any stage in the formal amendment process, whether at the proposal stage in Congress or at the ratification stage in the states.
But it is notoriously difficult. Don Lutz has shown in his important empirical study that the structure of Article V makes the United States Constitution one of the world’s most difficult to formally amend. The hyperpartisanship in the United States Congress and in the state legislatures only exacerbates the difficulty of meeting the supermajority thresholds required by Article V. Nonetheless, it is not impossible to amend the Constitution using Article V.
Perhaps the better comparator is the power of veto granted to each of the five permanent members of the United Nations Security Council. Any of the five states—China, France, Russia, the United Kingdom and the United States—may veto a resolution under consideration at the Security Council. But even this comparator is distinguishable from the liberum veto insofar as the power of veto on the Security Council does not apply to all resolutions, only to substantive, not procedural ones. In contrast, the liberum veto apparently applied to all matters before the Diet.
So the question remains: Is there a modern liberum veto anywhere and, if yes, what is it’s purpose and how does it work?
Suggested Citation: Richard Albert, The Modern Liberium Veto, Int’l J. Const. L. Blog, February 21, 2013, available at: http://www.iconnectblog.com/2013/02/the-modern-liberum-veto.