Why is it so hard to amend the Constitution?

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In his new book, Six Amendments: How and Why We Should Change the Constitution, John Paul Stevens argues for amending the Constitution to promote democracy and rights. Stevens, who served on the Supreme Court from 1975 to 2010, knows a lot about the nation’s founding document and thinks that it needs a major retooling. He’s right that there are many problems with it. But he’s wrong to think that amending the Constitution is the solution. He’s wrong because it is nearly impossible to enact new amendments. That is the problem that needs a solution.

Stevens wants to abolish the death penalty, allow for more gun control and campaign finance regulation, and give judges the power to block gerrymandering. He would also allow the federal government to order around state officials and enable people to sue state governments for damages. The six amendments he proposes would overturn Supreme Court decisions, many of which Stevens dissented from when he served on the court.

In most countries, we could seriously consider the changes to the Constitution that Stevens proposes—or, for that matter, a different set of amendments from the Tea Party. But in our country, we can’t. Any proposal to amend the Constitution is idle because it’s effectively impossible.

The problem starts with Article 5 of the Constitution. It provides that an amendment can be proposed either by a two-thirds majority in both the House and the Senate or by a convention, called into being by Congress, after a request from two-thirds of the states. That’s version A and version B of step one. If an amendment makes it through either one, then comes step two: ratification by three-quarters of the states. In other words, an amendment requires a supermajority twice—the pig must pass through two pythons. By contrast, ordinary legislation requires the approval of a simple majority in each house.

The founders made the amendment process difficult because they wanted to lock in the political deals that made ratification of the Constitution possible. Moreover, they recognized that, for a government to function well, the ground rules should be stable. But they also understood that the people will need to change those ground rules as new challenges and problems surface with the passage of time. They didn’t mean for the dead hand of the past to block necessary progress.

But the founders blundered. They made passing an amendment too hard. In the 220-plus years since ratification of the Constitution, more than 11,000 amendments have been proposed, but only 27 have been enacted. The first 10 amendments were added immediately to appease critics of the Constitution during the ratification debates. The three critical post­–Civil War amendments (13th, 14th, and 15th), which expanded individual rights, are also a special case because the Southern states were coerced into ratifying them. From 1870 to today, only 12 amendments have been enacted. And since 1971, only a single amendment has been ratified—a trivial change that prohibits Congress from giving itself a raise that takes effect before the following election—and that ratification took place 203 years after the proposed amendment was submitted to the states in 1789.

Still, how do we know that amendment is too hard rather than just hard enough? One reason is that the cumbersome national amendment process in the United States makes us an outlier. Most liberal democracies—including the nice, stable ones in Western Europe—amend their constitutions with great frequency. Germany amends its Basic Law almost once per year, and France a bit more than once every two years. Indeed, most states in the U.S. amend their constitutions every couple of years. Many have completely replaced their original founding documents. The procedures for amendment in states and most liberal democracies are much easier than they are for the U.S Constitution. For example, in Germany, an amendment requires a two-thirds majority in each House, and that’s it. In all these cases, no one complains about the lack of constitutional stability.

In setting the bar for amendment so high, the Framers didn’t foresee that as the country became more populous and diverse, it would become harder for people to reach the near-consensus required for change. The Senate began with 20 members; now it has 100. The House increased from 59 to 435. And the U.S. population has increased from 4 million to more than 300 million. The clubby atmosphere at the founding, in which horse-trading was easy, has given way to a wildly heterogeneous political environment where mutual suspicion prevails. The difficulty of forging coalitions that can overcome the strict voting thresholds for amendment in Article 5 has increased exponentially. In the mid-19th century, many people regarded the Constitution as an “agreement with hell” because it permitted slavery, and in the early 20th century, there was a widespread view that the Constitution was drafted to advance the economic interests of the political elites. These attitudes sparked significant constitutional amendment. Today, the Constitution is no longer treated as a fallible legal instrument that must be updated to keep with the times. It is a totem.

The easiest way to see the problem is to observe that no serious political movements that seek constitutional amendment have existed in years. Amendment proposals today are symbolic; no one takes them seriously. The last constitutional amendment that kindled serious public debate was the Equal Rights Amendment in the 1970s. Asked recently what amendment she would make to the Constitution, that’s the one Justice Ruth Bader Ginsburg chose. But it was Justice Antonin Scalia who gave the broader and better answer—amend the process of amendment, to make it easier. According to the Legal Times, “[Scalia] once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. ‘It ought to be hard, but not that hard,’ Scalia said.”

Because Article 5 is a dead letter, people must find different ways to change the Constitution. Mainly, they entreat the Supreme Court to do so. But because the Supreme Court cannot itself amend the Constitution, these entreaties take the form of begging the court to “interpret” the Constitution in a new way. That’s why people hire lawyers to formulate their proposals as already reflected in the Constitution rather than argue that the Constitution got the position wrong and so should be changed.

In recent years, the court has changed the rules on gay marriage, gun rights, and campaign finance. Since the Supreme Court rarely overturns its precedents without public support, indirectly “We the People” can still, in a sense, change the Constitution. But the emphasis is on “indirectly.” If the sitting justices are not ideologically receptive to needed changes in constitutional rules, working change through the court means electing presidents and senators who will nominate and confirm justices with the desired ideological views, and also mobilizing popular opinion against targeted laws so that challenges to them can reach the court.

This is a broken system. Is there a solution? Sure, as Scalia said, all we need to do is change the rules in Article 5. The only problem is that this would require—an amendment.

Our Founders designed the Constitution so that amending it would be hard, but not impossible. In fact, they ratified the document with many of the amendments that would become the Bill of Rights already in mind. George Washington dedicated a good chunk of his first inaugural address to the subject of amendments. And, of course, Thomas Jefferson would later tout the necessity of changes to the Constitution by successive generations: “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

But today, thanks in large part to growing negative partisanship and shrinking Congressional interest in doing anything, the amendment process has been relegated to the dust heap while our national problems — from climate change to an outdated immigration system — pile up without political accountability. The resulting constitutional stagnation is a threat to the Republic — one that should scare you even if you think the Supreme Court has gotten every decision right (narrator: it hasn’t).

We need to amend the amending.

Article V of the Constitution explains how to amend our shared governing contract. In short, 38 state legislatures have to ratify an amendment after it is proposed either by 67 senators and 288 house members or 34 states. Of course, our population isn’t evenly divided across the states. The smallest 12 states comprise roughly 14 million people. And in a country of 330 million people, that means that, in theory, 96 percent of us could have to agree to change the Constitution — that is, if all the least populous states don’t vote in favor of an amendment.

It’s not an easy process. Of the nearly 11,000 Constitutional amendments that have been proposed over the past 233 years, only 27 have made it through. But it has also become increasingly difficult of late. In today’s dysfunctional Congress, garnering two-thirds support for anything of is a laughable notion.

Over half of the Constitution’s amendments were made in the first third of our country’s existence. The first 10 — the Bill of Rights — happened almost immediately. The next two — protecting states from lawsuits and electing the president and vice president as a ticket — were ratified within a few years. The three civil rights amendments were made following the Civil War, and ratification by the rebelling states was required for reentry into the Union. The other 12 were all ratified in the 20th century. The most recent amendment — the 27th, 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 an impressive 202-year ratification period to finally get enough state votes to become part of the Constitution in 1992.

It’s become harder to amend the Constitution even as it has become ever more important that we amend it. Nobody thinks the guys drafting 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 scrapped the Articles of Confederation in favor of the Constitution was because the Articles of Confederation proved too difficult to amend.) As we get further from the drafting of the Constitution, the more changes should presumably be needed to keep that document up to date as technology changes, social mores shift and (hopefully) the United States learns a few things about governing along the way.

But the Founders also likely didn’t foresee that Congress would willingly give up so much of its power to the judicial and executive branches, making amending the Constitution the only way to address the country’s big, stagnating problems — from gerrymandering to speech codes.

As Congress has done less and less legislating, the executive branch — and the sprawling number of administrative agencies in it — have faced increasing political pressure to address the problems facing the country. But the Constitution doesn’t allow the executive branch to fill in as a substitute legislature — which is a large reason why so many executive orders and actions end up in federal court. That leaves the courts in an untenable position — strike down the executive action knowing that there is little to no chance Congress will step in to address the issue at hand or allow the executive branch to continue to encroach on congressional authority, which further erodes any congressional will to tackle politically contentious issues.

Immigration is a perfect example. The last major legislative change to our immigration system was the Immigration Reform and Control Act of 1986. Millions of people came to the United States unlawfully in the decades that followed. Politically, neither side benefited from fixing the problem because it had become such a salient campaign issue. So Congress did nothing. Legislators didn’t fix the system for legal immigration; they didn’t address what to do with the people already here. After efforts in both houses of Congress repeatedly stalled, in 2009 President Barack Obama created the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA), which allowed some people who had been brought to the country illegally as minors and the parents of American citizens in the country unlawfully to apply for work authorization. Republican states immediately sued, arguing that the president had exceeded his constitutional authority to “take Care that the Laws be faithfully executed,” and was instead making those new laws. More than a decade later, the federal courts have struck down DAPA and seem poised to do the same with DACA. Congress — watching all this play out — has still done nothing.

And it’s not just partisan gridlock. Despite one party control of both houses of Congress and the presidency under both of the last two presidents, Congress has continued to do less than ever. The current 117th Congress is on pace to be the least productive in more than 50 years.

That brings us back to Biden’s Supreme Court Commission. If you believe the problem with the Supreme Court is its conservative opinions on abortion, partisan gerrymandering, the Voting Rights Act, campaign finance, or well, literally anything else, then instituting 18-year terms or guaranteeing every president two SCOTUS picks per term still isn’t the answer. The Supreme Court is an inherently countermajoritarian, conservative-with-a-small-c institution that sets a constitutional floor for rights, not the ceiling. Only Congress — or an amendment process that reflects the will of the electorate — can truly address these issues. And if conservatives truly believe what they say — that the administrative state has become bloated beyond recognition and regularly encroaches on the liberties of normal Americans — then allowing for an easier Amendment process is a way to starve the beast. Administrative agencies currently rely on the very practical argument that if they don’t address an issue of national importance, no one else will.

Faced with today’s sky-high levels of Congressional inertness, the only way to fix those things is by amending the Constitution. And right now that’s too hard. Look at the trial and travails of the Equal Rights Amendment. First proposed to the states in 1972, only 35 states voted to ratify the ERA before the expiration of the deadline set by Congress in 1979. But in the wake of the #MeToo movement, three more states voted to ratify the ERA — Virginia just last year — bringing the total number of states to the 38 needed to amend the Constitution. But in the meantime, five states voted to repeal their ratification. Can Congress set deadlines for ratification? Can states “unratify” before an amendment reaches 38? Nevada, Illinois and Virginia have filed a lawsuit against the National Archivist of the United States to recognize the ERA as part of the Constitution. So far, they’ve lost.

This means that to amend the Constitution at this point, you are going to need 34 states or two thirds of each house of Congress to propose an amendment at a time when they aren’t inclined even to pass legislation with a simple majority. Then, state legislatures of 38 states have to agree to the amendment. And in the meantime, you have to keep all the states that have already voted to ratify from taking back their ratification until you get to 38.

This is not a recipe for the long term survival of a self-governing people. Neither side is benefiting from this turgid system of governance. And the obvious impossibility of a substantive amendment to the Constitution at this point in our political discourse means that people are barely proposing them anymore. The number of proposed amendments has been steadily declining, with about half as many proposed in the last Congress (78) as were proposed in 1996.

But this can change!

Amend the amendment portion of the Constitution. Our founders wanted the bar for an amendment to be high but not up where the air is too thin for survival. Perhaps two thirds of states is enough for ratification rather than three quarters? Perhaps we explicitly prohibit take backs after ratification by a state?

I’m open to edits, 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 shall be valid when ratified by the legislatures of two thirds of the several states; provided that no amendment shall abridge the privileges or immunities of citizens of the United States. No state shall be able to withdraw their ratification and all deadlines for ratification must themselves be contained within the text to be ratified.

In the fall of 2005, I carried Justice Antonin Scalia’s papers across Harvard’s campus as we chatted about legal nerdery. Looking back, he was speaking to me in the same way an adult tries to engage a 3-year-old in conversation, knowing they don’t understand all of it but hoping they are learning to speak the language in the process. But as I struggled to comprehend what we were talking about, Scalia said something that I found quite shocking. So much so, I’ve remembered it to this day.

He said that he believed that the Constitution was flawed. It was too hard for the people to “overrule” Supreme Court decisions, which left the courts holding the bag on thorny issues better left to the political process.

In 2014, he and his judicial bestie, Ruth Bader Ginsburg, were asked how they would change the Constitution. She said she would like the Equal Rights Amendment to be ratified. Scalia gave the same answer he had given to me a decade earlier: As reported by the Legal Times, “[Scalia] once calculated what percentage of the population could prevent an amendment to the Constitution, and found it was less than 2 percent. ‘It ought to be hard, but not that hard,’ Scalia said.”

He’s right. It’s time to amend the amending process.