Should It Be Easier To Amend The Constitution ?

The Constitution has only been amended 27 times in it’s 219 year history.

Ten of those amendments, The Bill of Rights, were passed within two years of when the Constitution first went into effect, and two of them, the 18th Amendment and the 21st Amendment, essentially cancel each other out. Moreover, with the exception of the 12th, 13th, 14th, 15th, 17th, and 19th, Amendments, it’s fair to say that few of the Amendments enacted after 1791 actually brought about major change in the way America is governed or to American society itself. To make the point even further, the last contemporary Amendment to the Constitution was ratified in 1971 (the 27th Amendment was ratified in 1992 but was actually part of the Bill of Rights that was not ratified back in 1791.)

In some sense, this is a testament to the resilience of the Founder’s Constitutional structure, but it’s also a function of just how difficult it is to amend the Constitution due to the requirements of Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

Over at PrawfsBlawg, Rick Hills asks whether the requirements of Article V are too stringent:

The Article V process is so onerous that it prevents constitutional change even when an overwhelming majority of Americans desire such change. Under Article V, 14 states can veto an amendment. But the fourteen least-populous states have a combined population of less than 6% of the entire nation. Hence, an amendment supported by 94.5% of the people can be blocked by a tiny minority of thinly populated states. (The census figures are included at the end of this post). Moreover, this 5.5% of the population does not merely have suspensive veto that would require 95% of the population to approve an amendment repeatedly: The 5.5% have an absolute veto that they can deploy year after year, regardless of how sustained the level of support for an amendment desired by 94.5% of the population.

Eugene Volokh argues quite persuasively that the difficulty of amending the Constitution may be one of the influences behind judicial activism:

[T]he difficulty of promoting constitutional change through Article V has channeled demands for change into other, less desirable, avenues. One of the reasons why judicial confirmations are so hotly contested is that political movements have found that it is much easier to “change” the Constitution through creative interpretation by sympathetic judges than to go through the almost insuperable obstacle of the amendment process. Although it’s difficult to prove, I suspect that constitutional change surreptitiously achieved through creative judicial interpretation is likely to be of lower average quality than change enacted through a supermajority amendment process that is somewhat easier to get through than Article V. In this 2003 article, I discussed some of the negative aspects of the massive constitutional changes imposed outside the amendment process during the New Deal period.

Readers who, like me, are sympathetic to textualism and originalism should also be aware that Article V is one of the reasons why these methodologies are not more widely accepted by judges than they are. Some judges inevitably fear that if they don’t “adjust” the Constitution to take account of changing conditions, great disasters might occur because Article V makes it too difficult to enact the needed changes through the amendment process. On balance, I think that textualism and originalism are usually (though not always) superior to the available alternatives even with Article V. But that argument would be much easier to make if we had a less difficult amendment process.

Volokh suggests reducing the 3/4 state ratification requirement to 2/3, meaning that only 33 states would need to ratify a proposed amendment rather than 38. This would maintain the supermajority requirement that seems essential to making sure that the amendment process doesn’t become just another way for majorities to trump minority rights and interests while also ensuring that, when it comes to changing the structure of government, the will of a substantial majority isn’t thwarted by a small minority.

Of course, in order to do this, we’d have to amend the Constitution, which means following the requirements of Article V.

  • UCrawford

    Should It Be Easier To Amend The Constitution ?

    No.

  • http://www.orderhotlunch.com Jeff Molby

    I didn’t read all of the arguments, but I don’t necessarily agree with you, UC. The way things sit right now, they just blatantly ignore the Constitution. If they can get away with ignoring the Constitution, it’s safe to assume they can ignore the rest of our laws too.

    If having a somewhat more fluid Constitution means we have a more enforceable Constitution, I’d be willing to consider it. I would tread very carefully though.

  • http://pith-n-vinegar.blogspot.com Quincy

    I would like to see the amendment process be easier for exactly the reason Jeff says. My one fear, though, would be people like (pre-escort-scandal) Eliot Spitzer trying to use the more liberal amendment process to chip away at the protections for the people contained in the Constitution.

    The real question is do we want something out there that small government types can point to and say, “Hey, look! You see? What they’re doing is unconstitutional and bad!” or do we want something that accurately lays out the power of government. Personally, I vote for number 1.

  • UCrawford

    Jeff,

    The problem with that position, that perhaps a more fluid Constitution would stop some of the abuse, is that it is merely a concession to the abuse of our freedoms by politicians.

    It’s one thing to change or amend a law because it wrongly impedes consensual human interaction and it is inherently unfair or unenforceable among the general populace (e.g. immigration laws, drug laws, gun laws). Abolishing or lessening such laws is a limitation upon government, not an infringement upon individual freedom. It is very much another, when our elected and appointed representatives themselves violate the laws they are tasked with upholding and the individual freedoms our Constitution is meant to protect, to propose that we should make it easier for them to amend our Constitution so that their violations of our rights may more often become legal.

    The reason our Constitution was designed to be difficult to amend was because our Founding Fathers realized that only in exceptional circumstances should it need to be amended (abolishing slavery, women’s suffrage, equal protections) and that making it easy will only open the doors for more repression by government. You’ve said it before, the Constitution is not a “living document”…it was designed specifically to protect our individual rights and has done so largely effectively for almost 250 years. If our current politicians are having problems abiding by that document, it’s not a problem with the Constitution…it’s a problem with them.

  • http://www.orderhotlunch.com Jeff Molby

    The problem with that position, that perhaps a more fluid Constitution would stop some of the abuse, is that it is merely a concession to the abuse of our freedoms by politicians.

    Key provisions of the Constition are gone whether you want to concede it or not. Would they not be easier to restore if we didn’t have to spend half our energy just convincing people that they’re gone?

    making it easy will only open the doors for more repression by government

    I don’t have time to go into detail, but compare that logic to that of a drug-criminalization proponent. Have we not just created a black market (judicial activism & state secrets) for amendments? Isn’t a black market worse than a reasonably structured open market?

    You’ve said it before, the Constitution is not a “living document”…

    I was referring to constant attempts to “reinterpret” the thing. For the most part, I’m cool with amendments, even if the bar were to be lowered slightly (but not a lot).

  • Ben

    In no way should it be easier to amend the Constitution. Think about the crap that’s proposed now. Amendments on flag burning and gay marriage would probably be the least of our worries.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Jeff,

    I don’t have time to go into detail, but compare that logic to that of a drug-criminalization proponent. Have we not just created a black market (judicial activism & state secrets) for amendments?

    Drug laws are bad because they infringe on the individual’s right to engage in non-violent consensual activity. Repealing or lessening them is a way of strengthening individuals’ rights and returning power to the individual. The difficulty in amending our Constitution is good because it inhibits politicians from more quickly being able to erode our freedoms by revising our Constitution for increasing their personal power.

    Politicians, in their capacity as politicians, do not have the same rights as most other professions. Their job has strict limits imposed on it by the Constitution because we have conceded them a level of power through the law over other individuals’ lives that other professions do not legally possess. When they overstep their Constitutional boundaries, they’re not just “trying to do their jobs”, they’re violating our rights by exceeding the authority granted to them. When we give them the ability to amend the Constitution, we’re not making it easier for them to engage in consensual human interaction, we’re making it easier for them to limit everyone else’s consensual interactions and easier for them to draft our rights away.

    You say that key provisions of the Constitution are no longer there, I’m assuming that you mean because they’re no longer enforced. I would argue that those provisions are still there but that the current government is choosing to ignore and violate them…a situation that may change and for which current political leaders may still be held accountable. Give them the power to re-write the Constitution more easily to legitimize their actions and it’s much less likely that it will.

    Our Constitution has been able to be re-written when we’ve overwhelmingly deemed it necessary, and I do not see any pressing issue that currently requires a Constitutional Amendment. In fact, I’d say that it’s been re-written too often (considering Prohibition and the income tax). I’m firmly against making it easier for politicians to do so and for making the Constitution more vulnerable to the whims of short-term public opinion and particularly aggressive administrations.

  • http://www.belowthebeltway.com Doug Mataconis

    While I agree that amending the Constitution should not be easy, I think Professor Volokh has a point when he talks about the relationship between the difficulty of amending under Article V and the rise in Judge-made law a/k/a judicial activism.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Doug,

    Some judges inevitably fear that if they don’t “adjust” the Constitution to take account of changing conditions, great disasters might occur because Article V makes it too difficult to enact the needed changes through the amendment process.

    This mindset that Volokh discusses is certainly not a desirable outcome. It is not, however, a sufficient rationale for our politicians to be able to more easily re-write the laws. Politicians and judges have always attempted to skirt the boundaries of the Constitution because they worried that it wasn’t responsive enough. But the Constitution has always been there as a baseline to limit how far they may push and to give reformers down the road a tool to undo the more egregious abuses…and the difficulty in amending it has kept that tool relatively sharp. If we give the government more ability to re-write the Constitution, we make that tool less effective for writing abuses by politicians once the people recognize them and eventually we lose that tool. Making it easier to amend the Constitution is a horrible idea.

  • http://www.belowthebeltway.com Doug Mataconis

    U.C.,

    But when you think about, Volokh’s proposed change isn’t all that radical.

    Instead of needing 38 states to ratify an Amendment, you’d need 33, five fewer. It’s not that radical a change, but if the population of 2/3 of the nation wants a certain change to the Constitution, why shouldn’t they have it ?

    And there’s a difference between politicians who try to play games with the Constitution and Judges who do the same thing. Politicians are at least subject to being removed from office. Federal Judges, except in the rare case of impeachment, are not.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Doug,

    Instead of needing 38 states to ratify an Amendment, you’d need 33, five fewer. It’s not that radical a change, but if the population of 2/3 of the nation wants a certain change to the Constitution, why shouldn’t they have it?

    You’re confusing me with someone who thinks democracy is the same as freedom. As far as I’m concerned we’d only be making it easier for 2/3 of the country to vote away the rights of the remaining 1/3 on bullshit like outlawing gay marriage, or flag burning, or health care or whatever issue the politicians decide to rabble-rouse about in any given election year.

    As far as I’m concerned, every issue that’s been important enough to add as an amendment to the Constitution has been added and if others pop up in the future we’ve sufficient tools in place to take them into account. The Constitution is not meant to be a responsive document…it is meant to protect individual liberties that existed before it, not to re-write them or create new ones. I am absolutely opposed to making it easier to do so.

  • http://www.belowthebeltway.com Doug Mataconis

    I agree about the creating “new rights” idea, but we’re also talking about structural reforms here.

    Term Limits, for example.

    Or my favorite pet project which I know will never happen, repealing the 17th Amendment.

  • http://www.thelibertypapers.org/author/tarran/ tarran

    Doug,

    What if 2/3 of the country voted for an amendment that established an obligation for all lawyers named Doug to pay a 90% the income tax wouldn’t you have a different view?

    We all recognize that a democracy, where 51% can bind an unwilling 49% to some undesired course of action on any arbitrary issue to be bad.

    Why then should we make the Constitution more “democratic”? Making the constitution easier to amend won’t make people respect it more. It is, rather, a surrender to the horrible notion that a mob can push around everyone else. Like all promises to “respect you in the morning” I would take it with a grain of salt.

    If 66% of the country really believes that a certain law is just or fair, they can implement it in their respective states. While Congress is denied the power to outlaw marijuana, individual states are free to do so.

    If Congress lacks the power to outlaw abortion, there is nothing preventing a state from outlawing it.

    If Congress lacks the power to compel states to legalize assisted suicide, there is nothing preventing individual states from permitting it.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Doug,

    Or my favorite pet project which I know will never happen, repealing the 17th Amendment.

    Women’s suffrage?

    :)

    I agree about the creating “new rights” idea, but we’re also talking about structural reforms here. Term Limits, for example.

    If the people want term limits badly enough, they can still amend the Constitution. It’s been done 27 times already (which has been more than enough). Making amendments easier to get in term limits also means you’ll be making it easier for amendments regarding flag-burning, outlawing gay marriage, abortion (either way), limiting states’ rights, or any number of things that I can’t think of off the top of my head. Not worth it…the amendment process is fine as is.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    If 66% of the country really believes that a certain law is just or fair, they can implement it in their respective states. While Congress is denied the power to outlaw marijuana, individual states are free to do so.

    If Congress lacks the power to outlaw abortion, there is nothing preventing a state from outlawing it.

    If Congress lacks the power to compel states to legalize assisted suicide, there is nothing preventing individual states from permitting it.

    I agree with everything tarran’s said (although I thought the fed had outlawed marijuana and were claiming that the states had no right to legalize…although I’d agree that should be beyond the scope of their authority).

  • http://www.belowthebeltway.com Doug Mataconis

    UC,

    No direct election of Senators….but now that you mention it ;)

    I understand where you’re coming from and I’m not entirely sold on the argument that Volokh and Hills make. But I think it’s worthy of consideration.

    Of all the Amendments that have been proposed over the years, the only one that would come close to ratification under Volokh’s amended Article V would be the Equal Rights Amendment and even that one would have fallen 3 states short.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Doug,

    I understand where you’re coming from and I’m not entirely sold on the argument that Volokh and Hills make. But I think it’s worthy of consideration.

    I considered it and reject it, for all the reasons I listed.

    No direct election of Senators….but now that you mention it ;)

    UC’s disclaimer: Just to be clear to any female readers, I am not in any way, shape or form in favor of eliminating womens’ suffrage and hereby take this opportunity to distance myself from Doug “Sexist Pig” Mataconis who I can neither confirm nor deny was once drinking buddies with Bob Packwood. :)

  • http://www.belowthebeltway.com Doug Mataconis

    Just great.

    It was bad enough when I had the Paulistians breathing down my neck, now you’re going send the suffragettes after me ;)

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    What can I say? I’m an extreme moderate and I believe that anyone who does not support my views of moderation should be castrated :)

  • http://www.orderhotlunch.com Jeff Molby

    Drug laws are bad because they infringe on the individual’s right to engage in non-violent consensual activity. Repealing or lessening them is a way of strengthening individuals’ rights and returning power to the individual.

    I said look at the proponent’s argument, because I think you’re falling into a similar trap. We’ve created a black market for Constitutional amendments. That’s not good, no matter how you slice it.

    Rewind to the New Deal era. Let’s say the bar was lowered. Let’s say 3/5 of both houses plu 2/3 of the states. Let’s say they passed an amendment that added sweeping powers to Article 1 Section 8 and then proceeded to pass all of the legislation that they were going to pass anyways.

    Now fast forward back to present day. We would still face the challenge of undoing the programs they started, but at least we’d still have a literal Constitution to work with.

    Instead, we have nearly a hundred years of court precedent that completely bastardized the plain meaning of some pretty simple language and completely neutered several key concepts.

    I agree that a high bar and perfect enforcement would be better, but let’s be honest here; that obviously hasn’t happened and I’m not sure what we can change to make it happen.

    If you’re still not willing even consider it, ask yourself this: why 2/3 and 3/4? Why not 3/4 and 4/5? They’re all arbitrary numbers and the founders were imperfect.

  • TerryP

    I see no reason to change the rules on amending the Constitution now for many of the same reasons as have been discussed above.

    Probably the biggest reason why we haven’t seen many amendments in recent years isn’t the difficulty of getting amendments passed, it is the ease in which we have bypassed the Constiitution in those years. We are passing so many laws and doing so many things that are so obviously unconsititutional that people don’t seem to care anymore about what is constitutional and what isn’t. For politicians it is so much easier to just act like the Constitution doesn’t exist than amend it.

    We should be trying to get people to better understand what the Constitution really stands for than try to make it easier to amend it.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Instead, we have nearly a hundred years of court precedent that completely bastardized the plain meaning of some pretty simple language and completely neutered several key concepts.

    Courts change, political administrations change, but amendments rarely do. Had it been easier to pass new amendments back in the New Deal era I have little doubt that FDR would have re-written our Constitution (as he planned to do until he died), Social Security and employment would now be constitutionally guaranteed rights and we’d be in a much worse fix once that system finally goes bankrupt.

    Fine as is.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford
  • http://www.orderhotlunch.com Jeff Molby

    Courts change, political administrations change, but amendments rarely do. Had it been easier to pass new amendments back in the New Deal era I have little doubt that FDR would have re-written our Constitution (as he planned to do until he died), Social Security and employment would now be constitutionally guaranteed rights and we’d be in a much worse fix once that system finally goes bankrupt.

    You’re forgetting that they’d be easier to repeal as well. You’re also forgetting that most of the country already considers those things guaranteed rights.

    FDR could have passed every idea he ever came up with and we’d still face the same problem; we’d still have the challenge of explaining to the public why the unintended consequences of his ideas outweigh any benefit.

    The primary difference would be that we wouldn’t have to spend X% (where X is a significantly large number) of our time debating interpretations with people don’t even bother to read their mortgage papers, let alone a court opinion. The drastic change in policy would be a matter of record.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Jeff,

    You’re forgetting that they’d be easier to repeal as well.

    Nope, I just realize that laws are tough to get removed as is and amendments will likely be even tougher. If we can’t get rid of Social Security and the damn thing’s not even an amendment what makes you think it would be easier to get rid of an amendment for “universal” health care or “universal” employment?

  • http://www.orderhotlunch.com Jeff Molby

    If we can’t get rid of Social Security and the damn thing’s not even an amendment what makes you think it would be easier to get rid of an amendment for “universal” health care or “universal” employment?

    The reasons mentioned in paragraphs 2 and 3 at 9:49.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Jeff,

    FDR could have passed every idea he ever came up with and we’d still face the same problem; we’d still have the challenge of explaining to the public why the unintended consequences of his ideas outweigh any benefit.

    And if the laws were not Constitutional, court rulings would be able to chip away at them or repeal them. With an amendment, that option is off the table.

    The primary difference would be that we wouldn’t have to spend X% (where X is a significantly large number) of our time debating interpretations with people don’t even bother to read their mortgage papers, let alone a court opinion.

    You’re arguing to give in to their ignorance. Politicians pass shitty laws all the time, but with our Constitution we have an ability to overcome those…even if it hasn’t been particularly effective during this administration. Your solution of making it easier to pass amendments would erode the very foundation of our protections, though.

    I’m sorry Jeff, but I’m not seeing the upside here for individual freedoms…no way.

  • http://www.orderhotlunch.com Jeff Molby

    And if the laws were not Constitutional, court rulings would be able to chip away at them or repeal them.

    Do you believe the current interpretations of the general welfare and interstate commerce clauses are consistent with the Constitution as it was intended?

    If not, how do you reconcile that with your optimism that court rulings are sufficient check on the legislature and executive?

    You’re arguing to give in to their ignorance. Politicians pass shitty laws all the time

    And they appoint shitty judges that give great deference to their shitty laws.