The Constitution was designed so that it would be difficult to amend. The Bill of Rights was already in the works when they ratified the document. George Washington devoted a good portion of his inaugural address to the subject of amendments. Thomas Jefferson would later tout the necessity of changes to the Constitution by successive generations, as well as the need for a man to wear a coat.
The amendment process has been thrown into the trash because of negative partisanship and Congressional interest in doing nothing, while our national problems pile up without political accountability. If you think the Supreme Court has gotten every decision right, you should be scared of the threat of constitutional stagnation.
We need to change it.
The Constitution explains how to amend a governing contract. The amendment has to be approved by 38 state legislatures after it is proposed by 67 senators and 288 house members. Our population is not evenly divided across the states. 14 million people are in the smallest 12 states. If all the least populous states don't vote in favor of an amendment, 96 percent of us could have to agree to change the Constitution.
It is not an easy process. Over the past 233 years, only 27 Constitutional amendments have made it through. It has become more difficult recently. It is laughable that Congress has two-thirds support for anything.
The first third of our country is where half of the Constitution's amendments were made. The Bill of Rights was the first to happen. Within a few years, the next two, protecting states from lawsuits and electing the president and vice president as a ticket, were approved. The three civil rights amendments were made after the Civil War and needed to be approved by the rebelling states to reenter the Union. In the 20th century, the other 12 were all approved. The 27th amendment, which prevents a congressional pay raise from going into effect until after the next congressional election, was actually proposed with the Bill of Rights and took 202 years to get enough state votes to become part of the Constitution.
Even though it is more important to amend the Constitution, it is harder to do so. Nobody thinks the guys drafting the Constitution were aware of the problems we would face. They did not think so. The Articles of Confederation proved too difficult to amend, which is one of the reasons why the Articles of Confederation were scrapped. As we get further from the drafting of the Constitution, the more changes should be needed to keep that document up to date as technology changes, social mores shift and the United States learns a few things about governing.
The only way to address the country's big, stagnant problems is to amend the Constitution, which Congress willingly gave up so much of its power to the judicial and executive branches.
The executive branch has faced increasing political pressure to address the country's problems as Congress has done less and less legislating. The executive branch can't fill in as a substitute legislature, which is why so many executive orders and actions end up in federal court. The courts have no choice but to strike down the executive action because there is little to no chance Congress will step in to address the issue at hand or allow the executive branch to continue encroaching on congressional authority, which further erodes any congressional will to tackle politically contentious issues.
Immigration is an example. The Immigration Reform and Control Act of 1986 was the last major change to the immigration system. In the decades that followed, millions of people came to the United States illegally. Neither side benefited from fixing the problem because it was a campaign issue. Congress did nothing. Legislators didn't fix the system for legal immigration, they didn't address what to do with the people already here President Barack Obama created the Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans in 2009, after Congress repeatedly failed to act. Republican states immediately sued, arguing that the president exceeded his authority by making new laws instead of taking care that the laws be faithfully executed. The federal courts have struck down DAPA and seem poised to do the same with the Deferred Action for Childhood Arrivals program. Congress has not done anything.
It is not just partisan gridlock. Congress has done less under both of the last two presidents, despite one party control of both houses of Congress. The current Congress is on pace to be the least productive in more than 50 years.
That brings us to the Supreme Court Commission. If you think that the Supreme Court is conservative because of its opinions on abortion, partisan gerrymandering, the Voting Rights Act, campaign finance, or anything else, then instituting 18-year terms or guaranteeing every president two SCOTUS picks per term still isn't the answer. The Supreme Court sets a constitutional floor for rights, not the ceiling. Congress or an amendment process that reflects the will of the electorate can address these issues. Allowing for an easier amendment process is a way to starve the beast if conservatives truly believe that the administrative state has become bloated beyond recognition and regularly intrudes on the liberties of normal Americans. Administrative agencies rely on a very practical argument that if they don't address an issue of national importance, no one else will.
Changing the Constitution is the only way to fix the high levels of Congressional apathy. That is too hard right now. Look at the trial of the Equal Rights Amendment. Only 35 states voted to approve the amendment before the deadline set by Congress in 1979. The number of states needed to amend the Constitution has increased because of the #MeToo movement. Five states voted to repeal their ratification. Can Congress set deadlines? Is it possible for states to unratify before an amendment reaches 38? The National Archivist of the United States is being sued by Nevada, Illinois and Virginia for not recognizing the Equal Rights Amendment as part of the Constitution. They have lost so far.
To amend the Constitution at this point, you will need 34 states or two thirds of each house of Congress to propose an amendment at a time when they aren't inclined to pass legislation with a simple majority. The amendment has to be agreed to by the state legislatures of 38 states. You have to keep all the states that have already voted to approve from taking back their votes until you get to 38.
This isn't a recipe for long term survival of self-governing people. Neither side is benefiting from this system of governance. The impossibility of a substantive amendment to the Constitution at this point in our political discourse means that people are barely proposing them anymore. In the last Congress, the number of proposed amendments was half of what it was in 1996.
This can change.
The amendment portion of the Constitution needs to be changed. The bar for an amendment should be high but not too high for survival. Maybe two thirds of states is enough for the vote. We might prohibit take backs after the state has approved it.
If no amendment is made, the amendment will be valid if it is approved by two thirds of the states. All deadlines for ratification must be contained within the text of the treaty to be valid.
In the fall of 2005, I carried Justice Antonin Scalia's papers across Harvard's campus. He was speaking to me in the same way an adult would speak to a 3-year-old in order to get them to understand what he was saying. Scalia said something that I found quite shocking as I struggled to comprehend what we were talking about. I have remembered it so much that I can't remember anymore.
He believed that the Constitution was flawed. It was too difficult for the people to overturn Supreme Court decisions, which left the courts to handle the more delicate issues.
He and his judicial friend, Ruth Ginsburg, were asked how they would change the Constitution. She said she would like to see the amendment passed. Scalia gave the same answer he had given to me a decade earlier, that the population could not prevent an amendment to the Constitution. Scalia said that it should be hard, but not hard.
He is correct. The amending process needs to be changed.
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