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The Infeasibility of Constitutional Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The text of the everyone’s favorite amendment. What if we had more like these?
Experiments in Political Philosophy (“Move fast and break things”)
Constitutional law is applied philosophy, political philosophy, and Realpolitik. It is the most interesting, high-stakes, and dramatic of any of the legal subjects. The Constitution outlines what gets decided, who decides it, and who decides who decides.
It also, by its own terms, permits its explicit amendment. We have abolished slavery; forced state governments to observe the same provisions the federal government observes; at the height of the Progressive movement, enacted Prohibition; later, its repeal.
To be fair, the amendment process, as outlined in Article V of the Constitution, is not the only method of changing the meaning of the document. A much more popular route has been to convince at least five Justices of the Court that a position being argued for is already contained in the Constitution’s various provisions—that some interpretation has been in the Constitution all along. However, this method has resulted in wide and enduring controversy and fueled the politicization of the Supreme Court.
This method, however—discovery, or novel interpretation—has certainly been more effective than amending it. That is because amending the US Constitution is very, very hard, getting harder, and approaching a practical impossibility. When the document was being drafted in 1787, the framers were concerned with creating a workable consensus despite the divisive issues that risked a dissolution of their convention, issues such as slavery, legislative apportionment, and the composition and form of the Senate. An amendment procedure with a high bar was included in the Constitution to preserve the hard bargains reached that summer, as well as to elevate the document from transient political passions.
Yet constitutions—and their amending—were new concepts at the time. While constitutional amendment seems like it ought to be harder than mere legislating, just how much harder was an open question. The framers settled on two methods contained in Article V. These routes create high—unduly high—barriers to amendment, especially in a country as large and diverse as the United States has become. The methods result in substantially fewer amendments than other liberal democracies, including American states. Furthermore, the lack of an adequate amendment process puts tremendous pressure to change the Constitution through other means, namely lobbying the Supreme Court to “interpret” it in novel ways, politicizing the Court, and sowing division and public mistrust.
Article V; or, how to change a constitution
The framers thought the amendment process should be difficult but not impossible. As George Mason noted in 1787, “the plan now to be formed will certainly be defective, as the [Articles of] Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence.” Better to have a release valve than no valve at all. The delegates in 1787 eventually settled on an amendment process with two steps. To wit, legal scholar Eric Posner summarizes:
[Article V] provides that an amendment can be proposed either by a two-thirds majority in both the House and the Senate or by a convention, called into being by Congress, after a request from two-thirds of the states. That’s version A and version B of step one. If an amendment makes it through either one, then comes step two: ratification by three-quarters of the states. In other words, an amendment requires a supermajority twice—the pig must pass through two pythons. By contrast, ordinary legislation requires the approval of a simple majority in each house.
The concept of an amendment process to a constitution was not entirely new: eight of the state constitutions in effect in 1787 had an amendment process. But there was no historical body of knowledge as exists now comparing different amendment-mechanisms and the frequency with which they produce or ratify amendments. For example, we now know that in the nearly 230-year history of the US Constitution, over 11,000 amendments have been proposed since at least 2011. Of these, thirty-three have been sent to the states for ratification; of these, twenty-seven have been ratified, two have been defeated, and four are still pending.
Yet amendments are even rarer than the twenty-seven figure would suggest. Special circumstances gave strong tailwinds for a number of the amendments: ten came immediately after the Constitution was adopted to appease anti-Federalist critics looking for a bill of rights, and at a time when the United States was most homogenous and its congressmen least numerous; the three post-Civil War Reconstruction amendments are a special case as well, as the Southern states were overseen by the victorious Union and coerced into ratifying them. Since 1971, only a single amendment has been ratified.
A diversion in which we learn that a college student changed American history
This most recent amendment, the Twenty-Seventh, has an origin story that warrants its telling. The provision delays any Congressional pay raises from taking effect until an election has passed. It was submitted to the first Congress in 1789 along with twelve other amendments—ten of which would be ratified by 1791 and be known as our Bill of Rights. The Twenty-Seventh, however, did not get the requisite number of state ratifications to take effect, and it languished for nearly two centuries until 1982, when:
Gregory Watson, a 19-year-old sophomore at the University of Texas at Austin, wrote a paper for a government class in which he claimed that the amendment could still be ratified. A teaching assistant graded the paper a “C” and an appeal to the professor, Sharon Waite, failed, motivating Watson to launch a nationwide campaign to complete its ratification. The amendment eventually became part of the United States Constitution, effective May 5, 1992, completing a record-setting ratification period of 202 years, 7 months, and 10 days. In a cute happy ending, UT Austin later revised his official grade to an A.
An amendment hit rate of… 27/11,000
By most measures, twenty-seven ratifications for every eleven thousand proposals is a glacial pace of change. Germany amends its constitution, known as the Basic Law, about once a year; France about once every two. Indeed, most US states change their constitution substantially more often. According to the University of Maryland’s “State Constitutions” project, “there have been almost 150 state constitutions [and] they have been amended roughly 12,000 times [ . . . ] From 2006 through 2014, 683 constitutional amendments were proposed and put before voters, and 482 amendments were approved” (n.b.: many states have even replaced their constitutions multiple times; Louisiana has had a record eleven constitutions since 1803).
The number of ratified amendments is just one of the salient differences between the US Constitution and the constitution of the several states and foreign nations. This of course is a result of different amendment procedures. In Germany an amendment needs just a two-thirds majority in each of its Houses for it to pass. In most of the states, constitutions can be amended by ballot initiative or referenda that people vote up or down. Fourteen states even have compulsory or automatic ballot referrals, whereby “a statewide ballot proposition must be placed on the general election ballot asking the voters of the state if they wish to have a constitutional convention” at a regular period of 10, 16, or 20-year intervals.
And despite the relatively frequency of amendment, the individual states, or countries like France and Germany, are hardly considered hotbeds of instability.
A snapshot of America in 1789 and 2020
If the demographic picture of the United States in the late 18th century still held, then the amendment-bar the framers set might not be so insurmountable. But as it stands, the country grew from a population of four million over 320 million. The first session of Congress ended with twenty-six senators and sixty-four representatives. Now we stand at 100 and 435 respectively. The three-fourths minimum of states needed to ratify a proposal increased from nine in 1787, to thirty-eight today. And not only has the population increased by a factor of eighty, there has been a growing ethnic and geographical diversity of citizens, resulting in a heterogeneity at odds with the two supermajorities needed for an amendment (the two-thirds of both chambers of Congress requirement, and the three-fourths of states requirement).
But what if frustrating reform movements is a feature and not a bug of the Constitution?
Besides frustrating attempts at constitutional amendment, the high bar for constitutional amendment has created immense pressure on the Supreme Court to interpret the Constitution in a new way. An effective strategy has been arguing to the Supreme Court that an intepretation of the issue in controversy is already reflected in that document. To the consternation of textualists and originalists, such as Justices Clarence Thomas and the late Antonin Scalia, proposals for new rights or legal doctrines are formulated by legal advocates as already existing in the Constitution. Justice William Douglass, in 1965, found constitutional protection emitting from “penumbras” of other constitutional provisions—specific rights interpolated from more general ones—within the Bill of Rights, even though no “zone of privacy” is mentioned in the Constitution, let alone the right of married couples to use contraception (Griswold v. Connecticut). Justice Antonin Scalia treated such far-reaching reinterpretation with disdain. He implored activist litigants to seek their remedy through legislation or constitutional amendment. “You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court, can compromise”.
Scalia’s advice to seek a constitutional amendment as a legal remedy—distinct from asking the Supreme Court to “reinterpret”, e.g. legislate, e.g. read rights into existence-seeks to preserve a strictly literal and textual approach to interpreting the constitution, especially the interpretation that held at the time of adoption. There are problems with originalism and are beyond my scope here, but there is inordinate benefit to a fixed, predictable legal system based on precedent and judicial restraint, leaving legislation and constitutional amendment wholly up to the elected branches of government (or the people themselves). Yet Scalia himself agrees that our amendment process, as it currently exists in Article V, is too restrictive. On a panel, alongside Justice Ruth Bader Ginsburg, Scalia was asked if he would change the Constitution in any way. He had only one suggestion (YouTube link at time): “[I]f there were a targeted amendment that were adopted by the states, I think the only provision I would amend is the Amendment Provision.” He reasoned that in order to block an amendment’s incorporation to the Constitution, a bare majority of the people within the thirteen least populous states could impede a proposal from achieving the requisite three-fourths of states necessary for ratification. That comes to about 2.2% of the population. “It ought to be hard, but it shouldn’t be that hard,” he said.
The constitutional amendment process is a dead route. The United States is too large and heterogeneous, its Congress too unwieldly, for even broadly supported proposals to pass (viz. the Equal Rights Amendment). This creates pressure on the Supreme Court—the “non-political” branch—to do the work that amendments should do, politicizing the court and its decisions. The framers were right to elevate constitutional amendments above immediate political passions. But they more or less arbitrarily picked the requirements of the two supermajorities necessary for constitutional revisions, and we have learned a lot in the intervening years. The silver lining is that Article V itself can be changed. The bad news is that it would require an amendment.
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