Chapter 18: Amending the Constitution

“The Constitution is ink on parchment. It is forty-four hundred words. And it is, too, the accreted set of meanings that have been made of those words, the amendments, the failed amendments, the struggles, the debates—the course of events—over more than two centuries.”

–Jill Lepore (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. Still, another way to think about it is that the Constitution’s amending process just puts up too many obstacles. We’ll look at the amendment possibilities below. 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

How can the Constitution be amended? Basically, there are four possibilities situated in two pathways. 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

  1. 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.
  2. 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 surmounted the Congressional hurdle only to fall three states short to ratify. Then, many years later, Nevada ratified the ERA, followed by Illinois in 2018. After Democrats took over Virginia’s state government in 2019, all eyes turned toward that state to finally ratify. Keep in mind that the ERA was first proposed in 1923 and passed the Senate in 1972. (7) That’s a heck of a long time to get something done. 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, for one thing, and holds the promise of steering the ship of state in more humane and democratic directions in the future.

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. Jill Lepore, “The Commandments. The Constitution and Its Worshippers,” The New Yorker. January 9, 2011.
  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. Emily Peck, “Yes, Virginia! Women Could Finally Get an Equal Rights Amendment,” HuffPost. November 6, 2019.

 

 

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