Our founders drafted the constitution so that it would be difficult, but not impossible, to change. In fact, they ratified the document with many of the changes that would become the Bill of Rights already in mind. George Washington has dedicated a good portion of his first Opening speech on the subject of amendments. And of course Thomas Jefferson would later herald the need for changes to the constitution through successive generations: “We might as well ask a man to still wear the cloak that suited him as a boy as a civilized society to always be under the regime of. to remain their barbaric ancestors. “
But today, thanks in large part to growing negative partisanship and decreasing interest in Congress to do everything, the change process has been trashed as our national problems – from climate change to an outdated immigration system – pile up without political responsibility. The resulting constitutional stagnation is a threat to the republic – one that should scare you, even if you think the Supreme Court made every decision right (Narrator: it didn’t).
We have to change the change.
Article V of the Constitution explains how our joint administration contract can be changed. In short, 38 legislatures must ratify an amendment after being proposed by either 67 senators and 288 MPs or 34 states. Of course, our population is not evenly distributed across the states. The smallest 12 states comprise about 14 million people. And that means in a country with 330 million inhabitants that theoretically 96 percent of us have to agree to a constitutional amendment – that is, if not all the countries with the lowest population agree to a change.
It’s not an easy process. Of the almost 11,000 Constitutional amendments suggested in the past 233 years, only 27 made it. But it has also become more and more difficult lately. In today’s dysfunctional congress, getting two-thirds of the support for everything is a ridiculous idea.
Over half of the constitutional changes were made in the first third of our country’s existence. The first 10 – the Bill of Rights – happened almost immediately. The next two – the protection of states from legal proceedings and the election of the president and vice-president as a ticket – were ratified within a few years. The three civil rights changes were made after the civil war, and re-entry into the Union required ratification by the insurgent states. The other 12 were all ratified in the 20th century. The most recent amendment – the 27th, which prevents a raise in Congress from taking effect until after the next Congressional election – was actually proposed in the Bill of Rights and took an impressive 202 year ratification period to finally get enough state votes to become part of it the 1992 Constitution.
It has become more difficult to change the Constitution, although it has become increasingly important that we change it. Nobody believes that the guys who wrote the constitution in 1787 were clairvoyant about the problems we would face in 2022. They didn’t think so either. (One of the reasons the founders created the Articles of Confederation was in favor of the Constitution because the articles of the Confederation proved too difficult to change.) The further we go from drafting the Constitution, the more changes should likely be required to keep this document updated, since technology changes, and social mores change, and (hopefully) the United States learns a few things about governance in the process.
But the founders also likely failed to foresee that Congress would willingly surrender so much of its power to the judiciary and executive, leading to a constitutional amendment only Opportunity to tackle the country’s big, stagnant problems – from gerrymandering to language codes.
With fewer and fewer laws passed by Congress, the executive – and the large number of its administrative bodies – are facing increasing political pressure to address the country’s problems. But the Constitution doesn’t allow the executive to step in as a substitute legislature – which is a big reason why so many executive and federal lawsuits end up. This puts the courts in an untenable position – remove the executive knowing that Congress has little or no chance to address the issue at hand, or to allow the executive to continue to interfere with the authority of Congress, which any Congress may do further undermines ready to address politically contentious issues.
Immigration is a perfect example. The last major change in the law to our immigration system was the Immigration Reform and Control Act of 1986. In the decades that followed, millions of people illegally entered the United States. Politically, neither side benefited from the solution to the problem as it had become such an important campaign issue. So the Congress did nothing. The legislature has not established the system of legal immigration; they haven’t bothered with what to do with the people who are already here. After efforts in both chambers of Congress stalled repeatedly, in 2009 President Barack Obama launched the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of Americans (DAPA), which allow some people to become minors illegally were allowed into the country and parents of American citizens illegally apply for work permits in the country. Republican states immediately sued, arguing that the president had exceeded his constitutional authority to “see that the law is properly enforced”. and made these new laws instead. More than a decade later, federal courts have denied DAPA and appear ready to do the same with DACA. Congress, watching all of this, has still not done anything.
And it’s not just a partial standstill. Despite one party’s control over both houses of congress and the presidency under the last two presidents, congress continued less than ever. The current 117th Congress is well on its way to being the least productive in more than 50 years.
That brings us back to Biden’s Supreme Court Commission. If you think the problem is with the Supreme Court his conservative views on abortion, partisan gerrymandering, the suffrage law, campaign finance, or literally anything else, and then the introduction 18-year terms of office or guarantee for each president of two SCOTUS picks per term of office quiet is not the answer. The Supreme Court is an inherently counter-major, conservative-with-little-c-institution that sets a constitutional lower limit on rights, not the upper limit. Only Congress – or a process of change that reflects the will of the electorate – can really address these issues. And if conservatives really believe what they’re saying – that the administrative state is bloated beyond recognition and regularly encroaches on the freedoms of ordinary Americans – then an easier change process is one way to starve the beast. Managing authorities are currently relying on the very practical argument that if they fail to address an issue of national concern, no one else will.
Given today’s sky-high values of congress Inertia, the only way to fix these things is to change the Constitution. And that’s too difficult at the moment. Look at the process and effort of the equality amendment. First proposed to states in 1972, only 35 states voted to ratify the ERA before the 1979 deadline set by Congress. But in the wake of the #MeToo movement, three more states voted to ratify the ERA – Virginia last year – bringing the total number of states required to amend the Constitution to 38. In the meantime, however, five states have voted to repeal their ratification. Can Congress set deadlines for ratification? Can states “not ratify” before an amendment reaches 38? Nevada, Illinois and Virginia filed a lawsuit against the United States National Archivist for recognition of the ERA as part of the Constitution. So far they have lost.
That means that to change the constitution at this point, you will need 34 states, or two-thirds of each house of Congress, to propose a change, at a time when they are not even inclined to pass laws by simple majority. Then the legislatures of 38 states have to approve the change. And in the meantime, you must prevent any states that have already voted for ratification from withdrawing their ratification until you reach 38.
This is not a recipe for long-term survival for a self-governing people. Neither side benefits from this dull system of government. And the obvious impossibility of a substantial constitutional amendment at this point in our political discourse means that people hardly ever propose it. The number of changes proposed is steadily declining, with about half as many proposals at the last Congress (78) as in 1996.
But that can change!
Change the amendment part of the constitution. Our founders wanted to set the bar high for change, but not where the air to survive is too thin. Perhaps two thirds of the states are more likely than three quarters for ratification? Perhaps we expressly prohibit withdrawals after ratification by a state?
I’m open to change, but let’s get the ball rolling with some text: An amendment to this Constitution proposed by a majority of both Houses of Congress or a majority of States is valid when ratified by the legislatures of two-thirds of the various States; provided that no amendment diminishes the privileges or immunities of United States citizens. No state may withdraw its ratification and all ratification deadlines must themselves be contained in the text to be ratified.
In the fall of 2005 I carried Judge Antonin Scalia’s papers across Harvard campus while we talked about legal nerds. In retrospect, he spoke to me the way an adult tries to engage a three-year-old who knows he doesn’t understand everything but hopes that he’ll learn to speak the language in the process. But when I tried to understand what we were talking about, Scalia said something that I found quite shocking. So much so, I still remember it to this day.
He said he believed the constitution was flawed. It was too difficult for the people to “overturn” Supreme Court decisions, leaving the courts with pockets on sensitive issues that were better left to the political process.
In 2014, he and his legal friend Ruth Bader Ginsburg were asked how they were going to change the constitution. She said she would like the gender equality amendment to be ratified. Scalia gave me the same answer he had given me a decade earlier: As from her Legal times, “[Scalia] once calculated what percentage of the population could prevent constitutional amendment and found that it was less than 2 percent. “It should be hard, but not that hard,” said Scalia.
He’s right. It is time to change the rectification process.