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Does Article V Make it too Hard to Amend the Constitution?

Over at Prawfsblawg, University of Michigan [correction: NYU] lawprof Rick Hills has an excellent post discussing the shortcomings of Article V of the Constitution, which sets out the constitutional amendment process. As Rick points out, Article V's requirement that a constitutional amendment has to get the support of 2/3 of both houses of Congress, plus 3/4 of state legislatures makes it too difficult to amend the Constitution. Since every state but Nebraska has a bicameral legislature, that essentially means that an amendment needs to be ratified by 76 state legislative bodies (or 75 if Nebraska supports it), as well as broad supermajorities in Congress.

Rick and I both agree that there is much to be said for requiring a supermajority to amend the Constitution. However, Article V makes it almost impossible to enact any really significant amendment. Since the enactment of the Bill of Rights (which was part of the political deal by which the Constitution was ratified in the first place), there have been only a few major amendments. And the most important of these - the three post-Civil War amendments - were ratified only because the federal government essentially coerced the southern states into approving them by mandating that they would not be allowed to regain their House and Senate seats if they refused to ratify. The Constitution is, by and large, an excellent document. But it is not so infallible that major change should be nearly impossible.

As Rick suggests, the 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.

What should Article V be changed to? It's difficult to formulate a definitive answer, especially in a blog post. But I would tentatively suggest that the requirement of ratification by 3/4 of the states be reduced to 2/3 and that congressional ratification require the support of 60% of each house of Congress rather than 2/3. These revised rules would still require an amendment to have broad bipartisan support at both the state and federal level. But they would eliminate the current logjam under which changing the Constitution through the amendment process is almost impossible.

UPDATE: Various commenters ask what amendments would I like to see enacted that haven't been because of Article V? There are actually a good many. Among those that had a good chance of passing under a less restrictive but still supermajoritarian process, I would note the balanced budget amendment and the Equal Rights Amendment (though I support the latter for reasons different from those emphasized by most of its other supporters). But far more important than the fate of particular amendment proposals is the fact that the near-impossibility of enacting change through Article V means that pressure for change is often channeled into other, less-desirable directions such as judicial manipulation of the Constitution. The average quality of constitutional change is likely to be higher if it goes through a supermajoritarian amendment process less restrictive than Article V than if it gets enacted through the back door.

merevaudevillian:
[T]here have been only a few truly major amendments


I think this is a view taken as a lawyer, but not as an American citizen. Expansion of suffrage to women and 18-year-olds, the legalization of the income tax (greatly expanding the funding mechanism of the federal government), the direct election of senators (abolishing one of the most republican elements of the original Constitution), presidential term limits, and electoral votes for the District of Columbia are all significant enough to warrant serious attention. If anything, their comparatively "minor" perception may well be on account of the lack of litigation surrounding most of them.

Additionally, the fact that of the seventeen amendments since the bill of rights, two of them cancel each other out speaks, in my mind, volumes about the virtues of having so difficult of an amendment process. Even this burdensome mechanism yielded an amendment borne out of the passions of the day only to necessitate repeal just a decade later.

One thing that makes the amendment process so "difficult" at present, in my view, is the sheer unwillingness of the major parties to consider any alteration to the "sacrosanct" Constitution. In fact, amendments in the popular discourse have become little more than a threatened check on judges--if they create a federal right to same-sex marriage, then an amendment will result. Or they're merely ways of attempting to rein in judicial opinions--as many of them were, or as the Flag Burning Amendment attempts to be. Or they're merely signals to the judiciary to find the right in the Constitution if the amendment gets close enough to passage--like the Equal Rights Amendment and United States v. Virginia. (This, of course, dovetails with your points on New Deal-related changes and surreptitious judicial alterations.)

Perhaps this is because, in the last 50 years, we've come to revere the judiciary and its power of judicial review under Marbury to the point at which no one is willing to pay the political price of trying to change the Constitution through the established means. I don't think making the amendment process easier would help; instead, it's the psyche of the American people at present that we shouldn't change the Constitution because, well, the Court had the final say, and we're just fine with that (or, at least, a substantial minority is just fine with that).
3.14.2008 2:51pm
Tony Tutins (mail):
What amendments would you have liked to see pass that failed because the bar was set too high? I can recall only the E.R.A. failing, and that failure has not seemed to set women back. I would argue that it's too easy to pass amendments. Had Ike been able to serve a third term history would have been very different: for example, Khrushchev tested JFK by sending missiles to Cuba; Ike's toughness was already established.
3.14.2008 2:53pm
The Unbeliever (mail):
After the last 10 years or so, I believe it would be an irresponsible mistake to give Congress any more power than it currently claims. Especially to do something as drastic as changing the Constitution.
3.14.2008 2:53pm
reader (mail):
Thankfully Hills is no longer at Michigan. He's in NY these days.
3.14.2008 2:54pm
Kent Scheidegger (mail) (www):
A couple of changes worth considering:

There should be a mechanism for proposing an individual amendment by concurrent resolution of some number of states, bypassing Congress. At present, the only way to bypass Congress is to call for a convention. That makes amendments limiting Congress (e.g., for term limits) nearly impossible to enact.

Ratification of amendments should be by direct vote of the people, not the state legislatures. The current Article V has a provision for ratifying conventions, but that is a needless complication.
3.14.2008 3:02pm
Jay D:
Ironically, it would take an amendment to change the amendment ratifying procedure.
3.14.2008 3:02pm
Prufrock765 (mail):
Unbeliever is right.
We already see too many stupid demagogic amendment proposals (from both sides). Were the process easier this would only increase.
Any amendment with overwhelming support could be proposed and ratified in a matter of weeks.
The fact that in the early 70's it was just too hard to ratify an pro-choice amendment is not evidence of a flaw and should never be allowed as an excuse for the decision in Roe vs Wade.
3.14.2008 3:04pm
Ilya Somin:
Expansion of suffrage to women and 18-year-olds, the legalization of the income tax (greatly expanding the funding mechanism of the federal government), the direct election of senators (abolishing one of the most republican elements of the original Constitution), presidential term limits, and electoral votes for the District of Columbia are all significant enough to warrant serious attention.

I think these changes are all either minor (E.g. - DC electoral votes, giving the vote to 18 year olds), or had already been largely accomplished at the state level before the amendment was enacted (all but a handful of states were already electing senators before the 17th Amendment; most states had already given women the vote before the 19th Amendment and the rest were likely to do so in short order).The income tax is the single exception. But that's why I said there have been very few major amendments, not zero).
3.14.2008 3:06pm
Jay D:
But they would eliminate the current logjam under which changing the Constitution through the amendment process is almost impossible.

Logjam? How many proposed amendments are out there trying to meet the qualifications?
Federal Marriage Amendment
Balanced Budget Amendment
Flag Burning
3.14.2008 3:10pm
Displaced Midwesterner (mail):
While I don't think there is a logjam of amendments just waiting for Article V liberalization, some of this is probably do the deterrent effect of Article V itself. Because no one actually takes the idea of amending the Constitution seriously the only amendments proposed are mostly political red meat--e.g, the marriage and flag-burning amendments previously mentioned. Were the process to be easier I think there would be more proposed substantial amendments as people moved resources away from focusing on the judiciary to amendment lobbying.
3.14.2008 3:18pm
Jay D:
Considering Article V, the 17th Amendment is a Big Deal.

"Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

If states were electing Senators by popular vote, it was by their consent.
3.14.2008 3:20pm
J. F. Thomas (mail):
Federal Marriage Amendment
Balanced Budget Amendment
Flag Burning


And if these are the kind of amendments that would be passed if it were easier, the process needs to stay exactly like it is--they are all horrible.
3.14.2008 3:20pm
PatHMV (mail) (www):
In his post responding to my co-blogger Simon's question stemming from a recent Federalist Society symposium, Prof. Hills talks about potential amendments which are supported by "94.5%" of the people, yet can't get passed. However, the only example he cites regards child labor prior to the New Deal, and he provides no real statistics to back up his claim that it had exceedingly broad support, but was blocked only by a "handful" of rural states. I'm sure that's generally the case, but "handful" is an exceedingly imprecise number. (Leaving aside the issue that many of the pre-New-Deal decisions limiting the scope of the commerce clause power were wrongly decided and improperly limited Congressional authority.)

Much of Prof. Hills post is an exercise to show that, in theory, some terribly small sliver of the population could hold up an amendment strongly supported by the rest of the country. This reminds me much of the arguments made to eliminate the Electoral College because in theory it could allow a President to be elected by some very small percentage of the popular vote, if they barely won a sufficient number of small and medium-sized states but lost very heavily all the biggest states. The theory doesn't necessarily reflect reality in most or all circumstances, in part because it ignores the interlinkages among public opinion in different states and the normal political interactions which take place which impact public opinion in different regions, and generally keep public opinion from getting TOO out of line with each other.

Color me unconvinced on the need for change until I see some concrete examples of amendments that SHOULD have gone through but didn't because of the difficulties of passing the Amendments.

P.S. If you do insist on exploring ways to reduce the requirements, I would suggest a requirement that there be 2 votes on proposed new amendments, separated by at least 1 and preferably 2 Congressional elections, to help guard against momentary passions on issues like flag-burning and the like.
3.14.2008 3:22pm
Cornellian (mail):
A two-thirds of the states requirement (instead of 3/4) would allow amendments supported by only a small percentage of the population so long as that small percentage happened to be disproportionately resident in thinly populated states. Do the smallest 34 states (in terms of population) even add up to the number of people in California?
3.14.2008 3:22pm
Randy R. (mail):
Something tells me that the current mood of the populace isn't to expand rights for people, but rather the other way around. Thank goodness for the protections of the Constitution!
3.14.2008 3:24pm
MikeR:
What proposed amendments failed to pass out of Congress by 2/3 of both houses but would have passed with the new proposed requirement of 60%?

And what proposed amendments have failed to gather 3/4 of the states but have gathered 2/3?

I would need this sort of information to evaluate the proposal.

And it seems to me, unless you set the bar for Constitutional amendments imprudently low, that getting one's desired results through creative use/cooperation of the Judiciary will still be far easier than using the amendment process.
3.14.2008 3:25pm
The Ace:
The real danger there is the Balanced Budget Amendment. There is a time and a place for government deficit spending (war and depressions). A balanced budget amendment passed by the people's current zealous hatred of pork could cripple a war or economic recovery effort.

Second, how would such a balanced budget be enforced. The accounting wars would be a nightmare. During the first few years of the Bush administration, they counted the sale of federal lands as regular revenue, even though it was clearly a sale of a capital asset. This scoring rule lowered the perceived deficit. How about taking money out of the social security fund? Is that a debt to be repaid? Do we use Comptroller David Walker's analysis which puts the national debt at approaching $50 Trillion?

The second most powerful official in Texas is the Comptroller, who has veto authority over the budget because of a balanced budget amendment. Do we want the courts to be vetoing the entire federal budget?
3.14.2008 3:26pm
PatHMV (mail) (www):
Ilya, with regards to your update, that's an un-falsifiable statement. It's not necessarily wrong, but it really does nothing to prove your point, either. "We don't see many real, decent amendments tried because of the difficulty of the process" is not substantially different than "there are no elephants in my neighborhood because I always wear my elephant-repelling sneakers". I'm being hyperbolic, of course, but the point is sound.

Much as I support balanced budgets, and think constitutional requirements for such at the state level are sound, I'm not sure I'd actually support one at the national level, unless it were loaded with so many caveats and exceptions as to mostly make it meaningless. When war comes, or depressions, borrowing money may not be a bad idea. At any rate, if there really were broad-based support to require a balanced budget, the voters can easily accomplish that by voting out any Congressman who votes for an unbalanced budget. The fact that they're generally not willing to do so means that, however much they may approve it in poll questions, they don't feel strongly enough about it to really let it affect their vote.
3.14.2008 3:30pm
Jay D:
But far more important than the fate of particular amendment proposals is the fact that the near-impossibility of enacting change through Article V means that pressure for change is often channeled into other, less-desirable directions such as judicial manipulation of the Constitution.

I don't know if that is less desirable. Benjamin and I can still read the Constitution and see that all are equal, even if the courts declare that some are more equal than others. If it is easy to change, that's it. Two legs really are better. The constitution says so.
3.14.2008 3:30pm
Cornellian (mail):
The last thing we need is a Constitution loaded with so much petty junk it could easily be mistaken for a municipal bylaw code. That's what has happened to a number of state constitution as a result of an overly lenient amendment process.
3.14.2008 3:30pm
George Weiss (mail) (www):
the constitution could obviously use an amendment to deal with the new situation of the rights/or non rights of those suspected of terror..be they american or aleins etc..and a new burdon of proof and procedure for those cases
3.14.2008 3:30pm
Patrick Wright (mail):
Ilya,

If Article V were amended do you think that creative judicial interpretations would stop? I think it unlikely, even if the rationale presented to the electorate for amending Article V explicitly raised this point. I doubt that most "activist" judges now would readily admit that they are doing anything other than interpreting (as opposed to secretly amending) the constitution. I don't think this would prevent issues like abortion or race preferences from becoming contentious.
3.14.2008 3:36pm
KeithK (mail):
The Constitution is supposed to be hard to change. If an amendment is proposed that pisses off the people of 14 states then it shouldn't pass - that's a feature, not a bug.

Cornellian makes an important point. The Constitution is not the place to stick all of today's political fads. Keep it for the big stuff. If you can convince enough of the country that your issue is sufficiently important to pass an amendment then I guess it counts as "big stuff".
3.14.2008 3:38pm
Temp Guest (mail):
Ilya: Lot's of people would like to see the process made easier. It would be a lot easier to get: (1) an amendment defining marriage as being between just one man and one woman; (2) an amendment restricting free speech to just political speech; (3) an amendment saying that corporations and ships are not persons for purposes of constitutionalk interpretation; (4) an amendment preventing citizenship to anyone not born to a mother and father who are both citizens; (5) an amendment denying personhood to left-handed redheads. Whoops. Sorry. Just got a little carried wawy there thinking about the possibilities for my favorite ideas once your new amendment process is in place.
3.14.2008 3:49pm
nathan wagner (mail):
In my opinion, the constitution is too easy to amend, not
too hard. The constitution is an agreement among the states
(or the people of the states, if you prefer). I don't
see any reason why it should be amendable at all short of
a unanimous consent of the states. Forty-nine states shouldn't be able to impose their view on the remaining
state.

There is already too much junk in the constitution. Skipping
the first ten, the bulk of the remaining amendments could
be done without and the republic would be no worse off,
and probably much better off in the case of several of
them.
3.14.2008 4:06pm
PersonFromPorlock:

The Constitution is, by and large, an excellent document. But it is not so infallible that major change should be nearly impossible.

It should be, if those 'major changes' are unlikely to be written to that same level of excellence; we are, after all, talking about the US Congress.
3.14.2008 4:09pm
George Weiss (mail) (www):
Skipping
the first ten, the bulk of the remaining amendments could
be done without and the republic would be no worse off,
and probably much better off in the case of several of
them.

yeah..the republic would be fine without
-a prohibition on slavery (13th)
-the first ten amendments being applied to the states (14th)

sure
3.14.2008 4:12pm
Dave N (mail):
Cornellian said it best:
The last thing we need is a Constitution loaded with so much petty junk it could easily be mistaken for a municipal bylaw code. That's what has happened to a number of state constitution as a result of an overly lenient amendment process.
I echo and share his sentiments. Let's leave amendments for "the big stuff" and not make it easier to tamper with a document that has served us well for 220 years.
3.14.2008 4:14pm
Kent Scheidegger (mail) (www):
Regrettably, judicial activism sometimes makes it necessary to amend the constitution simply to remove judicially attached barnacles. In California, for example, we have amended the state constitution to remove the state exclusionary rule and the abolition of capital punishment, neither of which was really in the constitution in the first place.
3.14.2008 4:16pm
Jay D:
Temp Guest,

Corporations aren't persons. They don't vote. They shouldn't be able to contribute to political campaigns, among other things.

What's this about ships not being persons?
3.14.2008 4:18pm
NYTwin81:
Is there any case law that outlines limitations on amending Article V? For instance, what if Article V were amended so that any constitutional amendments thereafter had to be approved by 100% of the voters in a national referendum--so that it would literally be impossible to amend the Constitution ever again?

Obviously, such an amendment would be improper, but on what grounds? After all, the courts couldn't overturn the amendment on the grounds that it was unconstitutional.
3.14.2008 4:21pm
Simon Kenton (mail):
Cornellian is on the money with regard to Colorado, where we have pages and pages of text in the anti-trapping amendment dealing with what we can do about mice and beavers. We also have requirements limiting how much state government spending can grow, and requiring government spending on education to grow each year.
3.14.2008 4:27pm
Rick Hills (mail):
Many commenters ask for amendments that had overwhelming popular support but nevertheless could not be enacted through Article V. But these comments miss the point: No one would dream of trying to use Article V for such an amendment. Instead, they litigate before the Court seeking a judicial amendment.

Here is a non-exhaustive list of constitutional "amendments" that DID pass the judicial process and that certainly enjoy overwhelming popular support -- but that have never been formally ratified and, therefore, have utterly uncertain scope:

(1) The "redistribute-wealth-to-low-income-households" amendment to Article I, section 8 (granting Congress the power to use the spending power to redistribute wealth: Steward Machine v Davis).

(2) The "allow-states-to-delay-repayment-to-creditors" amendment to Article I, section 10 (granting the states the power to impair the obligation of private contracts: Blaisdell)

(3) The "comprehensive-federal-power-to-regulate-the-workplace" amendment to Article I, section 8 (granting Congress to enact collective bargaining, wages, and hours laws: Jones &Laughlin Steel, et al).

And so forth. Would it not be nice if these general powers had been installed by express textual amendments so that we would know their exact scope and have a democratic debate about their justification? Are you all satisfied with the status quo in which Congress has such powers de facto, but there is no clear sense of why and to what extent?

Or do you believe that these constitutional changes were not de facto amendments but bona fide constitutional interpretation?
3.14.2008 4:31pm
The Ace:
Thomas Jefferson would love this argument. John Marshall would not.
3.14.2008 4:38pm
Thomas_Holsinger:
It is not merely up to Congress. Congress can be entirely bypassed by the states. Resolutions adopted by 3/4 of the state legislatures calling for a convention to propose amendments will allow the states to convene such a body regardless of what Congress does or does not do. Proposed constitutional amendments adopted by these conventions will then circulate among the state legislatures for ratification ths same as amendments proposed by Congress.

This happens to be the only way we'll ever see terms limits for Congress.

We could start the ball rolling in California with an initiative seting a legislative term limit of one term until the leg. enacts such a resolution.

This won't happen, but I can dream.
3.14.2008 4:49pm
Elliot123 (mail):
I'm reminded of the 400 page constitution proposed for the EU. I think the US Constitution is about 12 pages. The EU shows us there is great potential for loading up the constitution with various pet amendments, horse trading amendments, and using the process to bypass the legislative process.

I'm delighted it's hard to change. If it were easier, it would simply take the place of legislation and offer an avenue to push the agendas of various interest groups.

I suspect the amendments which have not succeeded in recent years failed precisely because they didn't have the general support of the population. Some people don't like that. So what? I'm sure many of them feel they know better than the rest of us. Again, so what?

I would be very interested in a list of amendments that would make the republic a better place to live. Prof Somin says there are a good many, but provides only two - balanced budget and ERA. How about listing the Top Ten?
3.14.2008 4:49pm
MarkField (mail):
The proposed "solution" is worse than the current problem. Congress as now constructed is highly undemocratic due to equal representation in the Senate. Voting by states is even worse; the fewer states required, the more likely an amendment will pass which lacks even majority support.

If you really want to change the amendment process, make it more democratic, not less. After all, the point of doing so is to take power away from judges and give it to the people. Any "solution" which fails a test of majority rule can't accomplish this.
3.14.2008 4:52pm
Nick B (mail):

Do we want the courts to be vetoing the entire federal budget?

Yes, every single time we can as things stand. We are on a path to financial ruin, and both the Democrats and Republicans are pushing towards it as hard as they can. A possible future ruin is not a reason to allow a guaranteed current ruin.
3.14.2008 4:52pm
nathan wagner (mail):
George Weiss writes (in response to me):

> yeah..the republic would be fine without
> -a prohibition on slavery (13th)
> -the first ten amendments being applied to the states (14th)

Which part of "the bulk of" are you incapable of
understanding? While I could have gone through amendment
by amendment, it would have obscured my point. I trusted
the readers to be able to read. In your case, I am
left to wonder whether you are dense or merely willfully
obtuse.
3.14.2008 4:53pm
ChrisIowa (mail):
Actually what is more needed in the amendment process is a more feasible way for the States to propose amendments bypassing Congress. As it is, no amendment that restricts the power of Congress or the Federal Government has a prayer of getting a super majority in either the House or Senate.

I would just as soon leave the super majority for the House and Senate as it is. Instead it should be made easier for the States to call a constitutional Convention for a restricted purpose, say to agree on the language of a proposed amendment for the States to consider.

That amendment would have no chance of getting through the House or the Senate.
3.14.2008 4:55pm
Patrick Wright (mail):
Professor Hills,

As implied with my question to Ilya, I am not sure that a relaxed amendment standard would prevent judicial "amendments." At least some jurists justify their interpretations on the grounds of protecting "discrete and insular minorities." Even if the hurdle to amend the constitution is lowered, these minorities would continue to exist. So what would prevent further judicial activity in favor of these groups?
3.14.2008 5:01pm
John McCall (mail):
I would be interested in reading your article about the ERA, but I have no intention of buying a subscription to law.com for it. Is it posted somewhere else?
3.14.2008 5:02pm
cjwynes (mail):
MarkField suggests that the amendment process needs to be "democratic" in order to shift the power to the people and away from the judges. I suppose he has a point if that's really the end one wishes to achieve. But as it's written, the constitution is largely a pact between sovereign states, not a bilateral agreement between some mass of people who call themselves "Americans" on one side and the federal government on the other. If the constitution had been "democratic" in that way, it would never have been ratified and the United States would never have formed in the first place.

I think the present formula is about right. Even if you could get 75% of the state legislatures without California, New York and Pennslyvania, you'd never get 66% of the House without them. And vice versa, 66% of the House might support some amendment exclusively favored by the people in big populous states, but it would fail if it doesn't play well in Nebraska/Dakota/etc. Reducing either the House % or the state legislature % would ruin the balance of power between smaller and larger states, and essentially betray the understanding with which those states joined the union.
3.14.2008 5:08pm
PatHMV (mail) (www):
Prof. Hills, I fail to see how an easier constitutional amendment process might solve a problem like Blaisdell. Is it your argument that, if an easier amendment process had been available in 1934, the Court would have sided with Justice Sutherland's dissent, on the premise that a change were necessary, it would have already been made? Suppose that most people presented the question directly would have preferred the dissenting opinion to prevail. Should they have anticipated the demand for a contrary ruling and enacted an amendment that "no impairment really means no impairment, even for a little bit"?

No, the problem occurs when the Court reads into the Constitution something that's not there at all, but insists that it has been. That won't be fixed by an easier amendment process.

Yes, opinions like Roe are fundamentally Constitutional amendments rather than mere interpretation. However, an easier amendment process would do nothing to prevent such bastardized opinions, as it would be impossible to predict when an amendment might be necessary to preempt such a ruling.

An easier amendment process might make it slightly easier to correct such a bastardized opinion, but that doesn't really solve the problem. On abortion, for example, society is pretty much split, and depending on how you phrase the questions and group the responses, you can pretty much say confidently both that 60%+ of the country supports SOME limitations on abortion and that 60%+ of the country supports SOME constitutional protection to abortion. With a strong 40% on opposite sides, that won't be solved by even your 2/3 amendment process, and the Court will remain exceedingly important in resolving the matter.
3.14.2008 5:11pm
CDU (mail) (www):
For instance, what if Article V were amended so that any constitutional amendments thereafter had to be approved by 100% of the voters in a national referendum--so that it would literally be impossible to amend the Constitution ever again?

Obviously, such an amendment would be improper, but on what grounds?


It's not obvious to me that it would be improper. If we decided that our current constitution was perfect in every way, I even think it would be proper to simply amend away the ability to amend the constitution. Why do you think doing so (either de facto or de jure) would be improper?
3.14.2008 5:11pm
Temp Guest (mail):
Jay D. : Check your high school American history books for use of the 14th Amendment to protect corporations as fictive persons. I'm pretty sure the leagal doctrine developed during the latter part of the 19th century. It's my understanding that in admiralty law ships are often treated as fictive persons. There are good economic reasons for these legal fictions, but I'm sure some leftist or other would be offended enough by them to want to amend the Constitution if that process were easier than it is now.
3.14.2008 5:17pm
Cornellian (mail):
But far more important than the fate of particular amendment proposals is the fact that the near-impossibility of enacting change through Article V means that pressure for change is often channeled into other, less-desirable directions such as judicial manipulation of the Constitution.

I'm not convinced this is correct. Courts tend to be less circumspect when interpreting statutes rather than the constitution on the assumption that if Congress doesn't like the outcome, they can always amend the statute. Making the constitution easier to amend might make the courts even more constitutionally inventive, rather than less.
3.14.2008 5:31pm
pete (mail) (www):

As it is, no amendment that restricts the power of Congress or the Federal Government has a prayer of getting a super majority in either the House or Senate.


For those saying it is impossible to restrict the power of congress through the current amendement process remember that the 27th amendment, which limited the power of congress to change its compensation, was just ratified in 1992. Sure it took over 200 years to finally be ratified, but it did get a supermajority both houses of congress back in 1789.
3.14.2008 5:37pm
Lonely Capitalist (mail):
In a discussion with my barber, who had a leather bound, gold edged book about the second amendment on hand, he said that the U. S. constitution says that international treaties are the law of the land.

Thus, he said, the senate (which used to be chosen by the state legislatures, but now is popularly elected) could amend the constitution and abolish the second amendment by ratifying a treaty outlawing guns! Can this be true?
3.14.2008 5:41pm
MarkField (mail):

But as it's written, the constitution is largely a pact between sovereign states


John Marshall pointed out the error of this view in McCulloch v. Maryland: “The government proceeds directly from the people; is "ordained and established" in the name of the people … [T]he people were at perfect liberty to accept or reject it, and their act was final."


not a bilateral agreement between some mass of people who call themselves "Americans" on one side and the federal government on the other.


I agree that the Constitution is not an agreement between people and government. It is, instead, an act of sovereign authority by the people. That's why any amendment needs their approval.
3.14.2008 5:43pm
MarkField (mail):

Thus, he said, the senate (which used to be chosen by the state legislatures, but now is popularly elected) could amend the constitution and abolish the second amendment by ratifying a treaty outlawing guns! Can this be true?


Short answer: No. Treaties can override statutes, but not the Constitution.
3.14.2008 5:45pm
Soronel Haetir (mail):

A couple I'd like to see that have zero chance of passing would be the elimination of voice votes and a requirement that legislators read the entire text of any bill they vote on including conference resolutions. Perhaps with a pre-vote test that is scored afterward, if the test is not passed then that member's vote is negated.
3.14.2008 5:55pm
byomtov (mail):
I think there is an important difference between requiring a 2/3 vote in Congress and a 60% vote. Sixty percent majorities come up sometimes. Two-thirds majorities are rare. I would not like to see a process whereby an amendment could pass Congress without at least some support from members of both parties, state ratification requirement notwithstanding.
3.14.2008 6:01pm
aces:

And what proposed amendments have failed to gather 3/4 of the states but have gathered 2/3?


I can name two: the Equal Rights Amendment, ratified by 35 states, 1 more than a 2/3 majority; and the Titles of Nobility amendment, ratified by 12 states, an exact 2/3 majority.
3.14.2008 6:03pm
Gaius Marius:
So say we all!
3.14.2008 6:18pm
Cold Warrior:
Simon Kenton, excellent comment. Colorado is a fine example of constitutionalism run amok.

Would it be possible to limit constitutional amendments purely to subjects of constitutional dimension? I don't know, and that's my main concern with watering down Art. V


Had Ike been able to serve a third term history would have been very different: for example, Khrushchev tested JFK by sending missiles to Cuba; Ike's toughness was already established.


I am in favor of repeal of the 22nd Amendment, but I would like to see a maximum age clause in its place. Why? Well, Reagan had often noted that the 22nd Amendment unfairly deprives the American people of the right to put in place their favored candidate for President. However, in retrospect, a 3rd Reagan term (1/89 through 1/93) would've left us with a pretty clearly senile President. There's no magic age here (and this is not a comment inspired by McCain), but I'd like to see something like, "No person being 76 years or older may be elected President or Vice President." That is, 80 would be the maximum age.
3.14.2008 6:18pm
Lonely Capitalist (mail):
"No person being 76 years or older may be elected President or Vice President." That is, 80 would be the maximum age.

And if in 50 or 20 years medical science allows 80 yer olds to be as fit as 40 year olds?

Leave it alone and let the people decide when a candidate runs.
3.14.2008 6:25pm
Cornellian (mail):
In a discussion with my barber, who had a leather bound, gold edged book about the second amendment on hand, he said that the U. S. constitution says that international treaties are the law of the land.

Thus, he said, the senate (which used to be chosen by the state legislatures, but now is popularly elected) could amend the constitution and abolish the second amendment by ratifying a treaty outlawing guns! Can this be true?

Short answer: No. Treaties can override statutes, but not the Constitution.


Actually the Supremacy Clause provides that both the Constitution and ratified treaties are the supreme law of the land, without establishing a hierarchy as between the two. One might argue that it is an undesirable result to favor a ratified treaty over the constitution in some or all circumstances, but the text of the constitution by itself doesn't explicitly preclude that outcome.
3.14.2008 6:30pm
Tony Tutins (mail):
State of Missouri v. Holland showed that treaties could bind the states, apparently watering down the Tenth Amendment.

But, the Court held that, "The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment," which should interest those critical of the emanations from a penumbra.
3.14.2008 6:46pm
Simon Dodd (mail) (www):
Cornellian:
Actually the Supremacy Clause provides that both the Constitution and ratified treaties are the supreme law of the land, without establishing a hierarchy as between the two.
What it says is that the supreme law of the land shall be "th[e] Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States." Surely that does, at least implicitly, create a hierarchy. Only treaties made under the authority of the United States are the supreme law of the land; since the authority of the United States derives from (and is thus inferior to) the Constitution, must not any law or treaty made pursuant to or under authority of that power also be inferior to the Constitution?
3.14.2008 7:01pm
PatHMV (mail) (www):
Absolutely, Simon. Congress only has those powers granted to it by the Constitution. If a treaty exceeds those powers, then it is not made "under the Authority of the United States."
3.14.2008 7:04pm
PersonFromPorlock:

Congress only has those powers granted to it by the Constitution.

Or, of course, the power to regulate interstate commerce.
3.14.2008 7:17pm
EIDE_Interface (mail):
ERA really means SRA = Special Right Amendment. Once women were given the right to vote indiscrimination(19th), that was it. Now everyone had equal rights in the Constitution. That southern states wouldn't give equal rights in practice(until the late 1960s) has nothing to do with the Constitution.
3.14.2008 7:18pm
Waldensian (mail):

Thus, he said, the senate (which used to be chosen by the state legislatures, but now is popularly elected) could amend the constitution and abolish the second amendment by ratifying a treaty outlawing guns! Can this be true?

Your barber has been drinking the Barbisol again.
3.14.2008 7:42pm
Cornellian (mail):
Surely that does, at least implicitly, create a hierarchy. Only treaties made under the authority of the United States are the supreme law of the land; since the authority of the United States derives from (and is thus inferior to) the Constitution, must not any law or treaty made pursuant to or under authority of that power also be inferior to the Constitution?

Or you could read that as referring to "treaties made under the authority of the United States" as opposed to treaties made under some other authority, e.g. the authority of a state, or the authority of the President acting alone, without Senate ratification. It's plausible to read the language as meaning that treaties can deal only with matters within federal jurisdiction under some other provision on the Constitution, but nor is it a slam dunk from the text alone that this is the only possible result.
3.14.2008 8:26pm
Cornellian (mail):

Your barber has been drinking the Barbisol again.


I believe it's called Barbicide.
3.14.2008 8:35pm
eyesay:
The Unbeliever: "After the last 10 years or so, I believe it would be an irresponsible mistake to give Congress any more power than it currently claims." That's interesting. After the last 7 years or so, I believe it would be an irresponsible mistake to give the president any more power than the current occupant currently claims.

On a law blog dedicated to original intent of the framers, I am appalled by the lack of dismay that (1) Congress has ceded its power to declare war, and (2) the current occupant has, repeatedly, unilaterally declared through signing statements that the law does not mean and will not be enforced according to its plain meaning.

George Weiss: "the constitution could obviously use an amendment to deal with the new situation of the rights/or non rights of those suspected of terror..be they american or aleins [sic] etc..and a new burdon [sic] of proof and procedure for those cases" Please explain why existing constitutional provisions are inadequate to protect the rights of suspects, or inadequate to protect national security.
3.14.2008 8:47pm
Simon Dodd (mail) (www):
Cornellian,
[You could read it that way, o]r you could read [i]t as referring to "treaties made under the authority of the United States" as opposed to treaties made under some other authority, e.g. the authority of a state, or the authority of the President acting alone, without Senate ratification.
That holds, surely, only if there's some other power to make a treaty, if there's some authority other than the Constitution's by which the United States can make a binding treaty. But what other power is there? The two examples you offer don't hold up. States can't make treaties, Art. I § 10, Cl. 1. And the President can't make a treaty without Senate approval; he might be able to conclude what I think are termed "executive agreements" with foreign powers, but without Senate approval, such agreements are not treaties, any more than a text that the House concludes an agreement with the Senate over is legislation without Presidential approval.

I've long been rather fond of Justice Black's formulation from Reid v. Covert: "The United States is entirely a creature of the Constitution. Its power and authority have no other source." 354 U.S. at 5-6 (footnote omitted). That case is of particular relevance here, because it answers Lonely Capitalist's barber: "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." Id. at 16.
3.14.2008 9:16pm
Cornellian (mail):
And the President can't make a treaty without Senate approval; he might be able to conclude what I think are termed "executive agreements" with foreign powers, but without Senate approval, such agreements are not treaties, any more than a text that the House concludes an agreement with the Senate over is legislation without Presidential approval.

Exactly. Ergo such a treaty, with only a presidential signature but no Senate ratification might have some legal effect, but doesn't get the benefit of being part of the supreme law under the Supremacy Clause. There's nothing inherently absurd about reading the Supremacy clause reference to treaties made under the authority of the United States as a reference to this distinction, rather than a reference to the enumerated powers of the federal government.
3.14.2008 9:37pm
glangston (mail):
Considering that the first 10 Amendments were 100%, it seems they chose to water it down for future needs.
3.14.2008 9:48pm
Brett Bellmore:

Since every state but Nebraska has a bicameral legislature, that essentially means that an amendment needs to be ratified by 76 state legislative bodies (or 75 if Nebraska supports it), as well as broad supermajorities in Congress.


Achieving majority support in 76 legislative bodies is actually not a particularly difficult obstacle, assuming that support for an amendment is close to uniformly distributed. Each legislative district can be considered a sample of public opinion, and a fairly large sample, at that. If a non-trivial majority of the population supports an amendment, then majorities in most legislative districts will support it, and achieving support in a majority of seats in a supermajority of legislatures will be easy.

The real obstacle is that Congress does not originate amendments Congress does not want, no matter how much public support for them exists, (Term limits, for instance.) and Congress, thanks to supine courts, does not need amendments for what it wants. They just usurp any power they want, and the courts sign off on it. So, no amendments get sent out to the states anymore.

The 27th amendment is instructive: Originated at the same time as the Bill of Rights, only recently ratified, and almost instantly rendered moot by the Supreme court. The federal government not only won't originate amendments hostile to it's own interests, if they somehow get ratified, it won't permit them to take effect.

I will echo the comments above: If we're going to be making the amendment process easier, what we really need to do is cut Congress entirely out of the loop, and let the states amend the Constitution without any Congressional consent or cooperation. Clearly this would require a constitutional convention to achieve.

My real fear is that Congress will not easily give up the strangle hold it has over the amending process, since only amendments hostile to Congress's interests could result. If the requisite number of states ask Congress for a convention, does anyone want to bet that Congress will ignore the request, and the Court will, as it usually does with Constitutional clauses Congress finds inconvenient, declare the matter non-justiciable?
3.14.2008 10:52pm
REPEAL 16-17 (mail):
The last two times that the Congress tried to amend the Constitution, the States stop that attempt (the ERA &the DC Voting Representation Amendment). Those two attempts are reason enough not to make amendment easier to adopt.

Two-thirds of the States should call a new Constitutional Convention (that the amount called for in Article V). The purpose of such a convention would be to propose an amendment or amendments that would decrease the Congress's authority. Keep in mind that such a convention could only propose amendments; it can't enact anything.
3.14.2008 11:05pm
Andrew Hyman (mail) (www):
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.


The amendment process is not so difficult. If 51% of the people, in each of a sufficient number of states, demand an amendment, then they can get it under the current system.

What we really need is a better system for stopping judges who want to change the Constitution through creative interpretation, rather than merely expounding on the Constitution's ambiguities. The first step in this regard would be to add language to the judicial oath explicitly forbidding this kind of treacherous shenanigans.
3.15.2008 12:07am
juris_imprudent (mail):
Good grief, isn't Prohibition example enough that it should be even harder to amend the Constitution?

Make it easier and you are inviting the Constitutional jurisprudence of California, or Florida.
3.15.2008 12:46am
thankful_enthusiast:
I wouldn't mind reducing the states' direct involvement in the amendment process if we re-introduced their indirect involvement -- via repeal of the 17th amendment. Senatorial elections are a waste, anyway.
3.16.2008 2:53am
Larry Fafarman (mail) (www):
It is said that one of the purposes of the Constitution is to protect minorities from the tyranny of majorities. Making the Constitution easier to amend would make it easier for majorities to tyrannize minorities.

One way for Congress to get around the courts is to use its power under Article III to "strip" the Supreme Court of jurisdiction over particular issues:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (emphasis added)
3.16.2008 3:11am
Joshua:
As I've pointed out in the past, the danger of making/keeping the Constitution too hard to amend, while at the same time proscribing broad judicial interpretation, is that after another century or two without amendments (a distinct possibility, given how politically and culturally fragmented our nation has become), the Constitution will probably start looking to 22nd/23rd century Americans increasingly the way shari'a law looks to us - as a backward and rigid code that is irrelevant to how people actually live centuries after that code was set down. At that point neither piecemeal amendments nor creative interpretation will be enough to rectify the situation - there will have to be either a new Constitutional convention to overhaul the document or even redraft it from scratch, or an outright revolution. Either way, the Constitution as we know it will be toast.
3.16.2008 7:39pm
David M. Nieporent (www):
Joshua, that doesn't make sense as an analogy. Shari'a doesn't look to us like an outdated code adequate for its era but not for the modern world; it looks to us like a code that was never legitimate. We don't view the Constitution the same way.

Moreover, to the extent we think Shari'a is "backwards," it's because of the substantive provisions of Shari'a. But the Constitution, with a few exceptions, is primarily procedural, and there's no reason that it should be seen as "backwards" or "rigid."
3.17.2008 12:20am