Chapter 18: Amending the Constitution

“If we take seriously the democratic principle of ratification that the phrase ‘We the People’ suggests, then nothing can make another generation’s fundamental law count as ours except our consenting to it. In American constitutional law, silence—the fact that we have not amended the Constitution—counts as consent. But because amending the Constitution is nearly impossible, our silence is compelled, then laundered into consent.”

–Law Professor Jedediah Britton-Purdy (1)

The Comparative Difficulty of Amending the Constitution

Article V provides several possibilities to amend the Constitution. The American founders were far-sighted in this regard, for it makes eminent sense that a foundational document might need to be updated as the decades—now centuries—pass and society changes. Since the American founding, it is commonplace that written constitutions around the world have provisions whereby they can be amended. However, the U.S. Constitution stands apart from other written constitutions in one important regard: It is particularly difficult to amend. Law professor Richard Albert has established that “The United States Constitution is extraordinarily difficult to formally amend, in contrast to most other less-rigid democratic constitutions.” (2) Since 1789, America has amended the Constitution only twenty-seven times, even though there have been over eleven thousand amendments proposed in our history. By contrast, the Basic Law of the Federal Republic of Germany has been amended more than fifty-five times since it went into effect in 1949. Similarly, France has amended its constitution two dozen times since 1958. Between 1982 and 2015, Canada amended its constitution eleven times. Moreover, amending the U.S. Constitution appears to have become politically more difficult over time—so much so that Albert wrote that the Constitution almost seems to be “amendable in theory alone.” (3) The last time the Constitution was amended was in 1992, when the 27th Amendment passed that affects compensation for Representatives and Senators. The last consequential amendment affecting the lives of ordinary Americans was in 1971 (!) when the 26th Amendment set the national voting age at 18 years.

There are several ways to think about the U.S. Constitution’s resistance to alteration. It’s entirely possible that the founders essentially “got it right” when they wrote the document, meaning that there hasn’t really been much need for change. The eleven thousand plus amendment proposals suggest that this is not the case. Obviously, people from a wide variety of political perspectives have thought that the Constitution needed updating. Another way to think about it is that there may have been an extraordinary number of ill-advised proposals to amend the Constitution, and these proposals were justly defeated. That’s a matter of political perspective. What isn’t really debatable is that the difficulty in amending the Constitution puts the United States in the unenviable position of being stuck with a founding document that reflects pre-modern understandings of how to organize a society. Even if we ascribe genius to the founders, they were still people who did not have our modern understandings of democracy and equal rights. That’s a problem. A final perspective to consider is that, by being so bloody difficult to amend, the Constitution stands as an obstacle to improving the lives of ordinary Americans.

Amending the Constitution

The process for amending the Constitution puts up many obstacles. Basically, there are four amendment possibilities situated in two pathways, all of which are spelled out in Article V of the Constitution. One pathway starts in the Congress and the other with the states. Both pathways need sufficient states to ratify the amendment for it to go into effect.

Congressional Initiation

1. The House and the Senate both must pass the amendment by a two-thirds majority vote. If that happens, then the amendment needs to pass by a simple majority of 50 percent, plus one vote, in three-quarters or thirty-eight of the state legislatures to go into effect.
2. The House and the Senate both must pass the amendment by a two-thirds majority vote. If that happens, then the amendment needs to be accepted at state-level conventions in three-quarters or thirty-eight state conventions to go into effect.

State Initiation

3. Two-thirds of the states (34 of the 50 states) petition Congress to call for a national convention, which passes the amendment. If that happens, then the amendment needs to pass by a simple majority of 50 percent, plus one vote, in three-quarters of the state legislatures (38 of the 50 state legislatures) for it to go into effect.
4. Two-thirds of the states (34 of the 50 states) petition Congress to call for a national convention, which passes the amendment. If that happens, then the amendment needs to be accepted at state-level conventions in three-quarters (38 of the 50 state conventions) to go into effect.

If we look at the history of amending the Constitution, we see that the first pathway is by far the most common. All but one amendment has traveled that path. One amendment—the Twenty-first Amendment, which repealed Prohibition—was accomplished with pathway #2 above. Pathways #3 and #4 have never been used to pass an amendment, and it’s not for lack of trying. From 1789 to 1993 there were almost 400 proposals from some states for Congress to call a convention to amend the Constitution. (4) In 2018, conservative interests came within six states of successfully calling for a constitutional convention that they hoped would constitutionally enshrine their values. These efforts were funded and pushed by wealthy people such as the Mercer family and the Koch brothers. (5) Progressives have had less success pushing the same kind of agenda. Legal scholars and jurists from both the Left and the Right worry about a second constitutional convention running amok and radically altering America’s constitutional order. As University of Maryland law professor Richard Boldt put it, “The lack of clear rules of the road, either in the text of the Constitution itself or in historical or legal precedent, makes the selection of the convention mechanism a choice whose risks dramatically outweigh any potential benefits.” (6)

Looking at the four pathways above, it is now clear why the U.S. Constitution has not been amended much. It is very difficult to get an amendment to pass both the House and Senate with a two-thirds majority, and then there is the high hurdle of getting thirty-eight states to approve it. Consider the fate of the Equal Rights Amendment (ERA), which was initially proposed in 1923. It finally passed Congress in 1972, only to fall three states short of ratification. Then, many years later, Nevada ratified the ERA, followed by Illinois in 2018. After Democrats took over Virginia’s state government in 2019, Virginia became the necessary thirty-eighth state to ratify the amendment. One might think that would be the end of the story. However, the text of the amendment passed by Congress in 1972 had language saying that it had to be ratified by March 22, 1979–a date that was later extended to June 30, 1982. The Democrats have passed bills in the House to remove the ratification deadline altogether, but Republicans in the Senate have let such bills die without debate. In 2020, the Justice Department’s Office of Legal Counsel issued an opinion that, because Virginia’s ratification came well after the deadline, the amendment could not be added to the Constitution. The United States Archivist is following that advice, so the Equal Rights Amendment has not been successful. (7) That’s a heck of a long time and much effort in an ultimately futile attempt to codify the equal rights of women. This story illustrates the frustration people have that “the system” can serve ordinary people. Still, ordinary people’s ability to organize and press for a Constitutional amendment is what has enabled women (19th Amendment) and people of color (15th Amendment) to vote, and holds the promise of steering the ship of state in more humane and democratic directions in the future.

Jedediah Britton-Purdy, law professor at Duke University, argued for changing Article V itself. “There is something to be said,” he wrote, “for an open, fully democratic effort to put a change to Article V directly onto a national ballot, to stand or fall with the choice of the living majority.” He suggested that Article V be amended to require a “constitutional convention every generation, staffed by a blend of specially elected delegates, senior public officials, and, perhaps, citizens selected jury-style to represent everyday experiences.” After all, he wrote, “the Constitution doesn’t have to be something we merely inherit; it could be something we can change ourselves—starting with rewriting the too-stringent rules for making such changes.”  (8)

What if . . . ?

What if you led an organization that was proposing a new amendment to the Constitution? What amendment would you propose? Why? What positive results would you hope to achieve with it? What if you were charged with making the Constitution easier to amend? What procedure would you put in place?

References

1. Jedediah Britton-Purdy, “The Constitutional Flaw That’s Killing American Democracy,” The Atlantic. August 28, 2022.
2. Richard Albert, “American Exceptionalism in Constitutional Amendment,” Arkansas Law Review. 69(2), 2016. Page 220.
3. Richard Albert, “American Exceptionalism in Constitutional Amendment,” Arkansas Law Review. 69(2), 2016. Page 221.
4. James Kenneth Rogers, “The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process,” The Harvard Journal of Law & Public Policy. 30(3), Summer 2007.
5. Jay Riestenberg, “U.S. Constitution Threatened as Article V Convention Movement Nears Success,” Common Cause. March 21, 2018.
6. Richard Boldt, “Citizens United is Bad. A Constitutional Convention to Overturn it Would be Worse,” The Baltimore Sun. March 26, 2018.
7. Steven A. Engel, “Ratification of the Equal Rights Amendment,” Department of Justice Office of Legal Counsel. January 6, 2020.