Should It Be Easier To Amend The Constitution ?by Doug Mataconis
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.