The constitutional amendment process is a dead route as currently enshrined in Article V of the United States Constitution. When the document was being drafted in 1787, the framers were concerned with creating a consensus despite the divisive issues that risked a dissolution of their convention, such as the composition and form of the Senate as well as the issue of slavery. A difficult amendment process was included in the Constitution to preserve the hard bargains reached that summer as well as to elevate the document from immediate political passions. They settled on two methods that create unduly high barriers to amendment, especially in a country as large and diverse as the United States: supermajorities in both houses of Congress or two-thirds of the states calling convention, to be followed by ratification by an even greater supermajority of the states. Legal scholar Eric Posner notes that “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.”
In the nearly 230-year history of the US Constitution, over 11,500 amendments have been proposed as of January 2017. Of these, thirty-three have been sent to the states for ratification, but just twenty-seven have been ratified, two have been defeated, and four are still pending. Meantime, special circumstances gave strong tailwinds for a number of the amendments that have been ratified: ten came immediately after the Constitution was adopted to appease anti-Federalist critics (the Bill of Rights), and the three post-Civil War “Reconstruction” amendments are a special case as well because the Southern states were overseen by the victorious Union government and coerced into ratifying them. Since 1971, only a single amendment has been ratified, and that one 203 years after its submission to the states in 1789.
If the demographic picture of the United States in the late eighteenth century still held, the amendment bar that the framers set might not be so insurmountable. But the country grew from a population of four million to 320 million. The first session of Congress ended with twenty-six senators and sixty-four representatives. Now we stand at 100 and 435 respectively. The three-fourths minimum of states needed to ratify a proposal increased from nine in 1787, to thirty-eight today. Concomitant with the population increase has been a growing ethnic and geographical diversity of citizens, resulting in a heterogeneity at odds with the two supermajorities needed for an amendment.
One of the most consequential effects that the high bar for constitutional amendment has is the pressure it creates on the Supreme Court to “interpret” the Constitution in a new way. If there was a broad consensus that a position that the Constitution had was wrong, the amendment process is supposed to rectify it. Yet the pressure is not relieved if an amendment effort fails. An alternative strategy is arguing to the Supreme Court that the issue is already reflected in the Constitution. To the eternal consternation of textualists or originalists, such as Justices Clarence Thomas and Neil Gorsuch, proposals for new rights or legal doctrines are formulated by legal advocates as already existing in the Constitution. Justice William Douglas found the constitutional protection of privacy emitting from “penumbras” or shadows within the Bill of Rights, even though no “zone of privacy” explicitly exists in the document, let alone the right of married couples to use contraception (Griswold v. Connecticut, 1965). The late Justice Antonin implored litigants to seek remedies through legislation or constitutional amendment. “You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court, can compromise.”
Yet even Scalia acknowledged that the amendment process is too restrictive. When asked whether he would change the Constitution in any way, he responded, “if there were a targeted amendment that were adopted by the states, I think the only provision I would amend is the Amendment Provision.” He went on: “It ought to be hard [to amend the Constitution], but it shouldn’t be that hard.”
By most reasonable standards, the bar for constitutional amendments is too high. It creates pressure on the Supreme Court, the “non-political” branch, to do the work that amendments should do, politicizing the court and its decisions. The framers were right to elevate constitutional amendments above immediate political passions. But they more or less arbitrarily picked the requirements of the two supermajorities necessary for constitutional revisions. The silver lining is that Article V itself can be changed. The bad news is that it would require an amendment.
Article by Max Efremov, Senior Studying Economics