Is it Too Hard to Amend the Constitution? A Brief Response

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Is it Too Hard to Amend the Constitution? A Brief Response

Yes, it is too hard to amend. A few quick thoughts on the subject.

Steven L. Taylor

May 29, 2012

Comments

In response to a NYT piece, Doug Mataconis asks: Is It Too Hard To Amend The Constitution?

As I noted in the comments: yes, it is. This is, of course, a complex and lengthy topic, but a couple of quick thoughts since the conversation is underway (I started just commenting on the other thread, but this was too long for a comment):

One problem with the nearly-impossible-to-amend US Constitution: major constitutional issues are controlled in the United States by the vote of five Justices of the Supreme Court; they are not open to an actual broad political debate. For example: there is a long-standing, going on a century-long, fight over the meaning of the Commerce Clause. And who, ultimately, is it, that controls that debate? Well, the Supreme Court. Surely it would be better to actually be able to deal with these kinds of questions as part of real constitutional debate to refine the meaning in the actual text rather than simply hoping our “side” has enough Justices on the bench when the time comes.

Indeed, as shifts need to occur in terms of our understanding and application of the constitution, we just change practices because we cannot easily amend the document to accommodate the reality of how we operate. An excellent example of this is war powers. The system that resides in the Constitution was designed for a wholly different era for a wholly different type of military activity. It was one in which there was no standing army. Instead, a decision had to be made to declare war on another country and then to raise an army for the war. It was, by current standards, a slow-motion affair that certainly has little in common with current realities. The fact that the last declared war was World War II underscores that the system as designed no longer functions. This situation is also underscored by the ongoing War Powers Act debate and is illustrated by US involvement (and the surrounding domestic political controversy) in Libya.

What we end up doing, since it is so difficult to amend the Constitution, is to change behaviors without changing the document. How is this preferable to truly requiring a functioning constitutional order that would allow for actual political debate and formalized changes to be made as we adapt the functioning of the state?

An incomplete set of thoughts, to be sure, but a few things to think about.

More later, time and thought permitting.

27 responses to “Is it Too Hard to Amend the Constitution? A Brief Response”

Doug Mataconis

May 29, 2012 at 6:41 pm

Fair points, and I have still more to say about Levinson’s piece myself, but I suppose my basic question is this —

Why shouldn’t it be hard to change the fundamental structure of our Federal Government and impact the rights of minorities?

I understand your points about the Courts, but that is the role the Courts were designed to serve so I don’t necessarily have a problem with that. I have a far bigger problem with giving eternally shifting majorities the right to change the fundamental nature of the relationship between the states and the Federal Government, and individual citizens and the Federal Government.
Ron Beasley

May 29, 2012 at 6:48 pm

@Doug Mataconis:

I have a far bigger problem with giving eternally shifting majorities the right to change the fundamental nature of the relationship between the states and the Federal Government, and individual citizens and the Federal Government.

Well it doesn’t happen often but I am in complete agreement with you. It would be borderline anarchy. As commentors in your post indicated you have to look no further than California.
Brett

May 29, 2012 at 6:56 pm

It should be noted that ease of changing the constitution has not posed a big problem in other liberal democracies. The UK makes a great case, as normal statutes are enough to change the “constitution.” Even there, constitutional reform is very difficult, but is at least doable, allowing for some semblance of responsible party governance and allowing government that is responsive to democratic mandates. Indeed, I think it is highly problematic that a document written in the 1700’s (and undemocratically at that) by a bunch of old white dudes should continue to rule our county, simply because they made it hard to change just to ensure their continued political supremacy and exclusion of the vast majority of citizens from the construction of constitutional governance.
Doug Mataconis

May 29, 2012 at 7:03 pm

@Brett:

Of course we do not live in a Parliamentary system like the UK, so comparing their unwritten “Constitution” to ours in mostly a non sequiter. Additionally, the “undemocratic” nature of the Constitution is irrelevant given the fact that it is also supposed to exist to protect the rights of the minority.
Just ‘nutha ig’rant cracker

May 29, 2012 at 7:57 pm

While I can see your point, I wonder whether the problems that you see are difficulties with the current system or features of electing spineless characatures of leadership with narrow vision and absolutist proclivities. Haven’t we met the enemy and found that he is us?
al-Ameda

May 29, 2012 at 8:19 pm

Levinson seems to have a lot of faith in majority rule. We already let the states deny equal protection under the law to gay and lesbian people, why would it be a great idea to liberalize the Constitutional Amendment Process to permit the people to approve the inclusion of discriminatory amendments into the Constitution?

Instead, he points out the fact that nearly all of the 50 State Constitutions are far easier to amend than the Federal Constitution, most typically by some form of legislative vote followed by a referendum.

Just swell … check with the State of California to see just how well the voters (the people) have done in amending the California State Constitution.
Steven L. Taylor

May 29, 2012 at 9:15 pm

@Doug Mataconis:

I have a far bigger problem with giving eternally shifting majorities the right to change the fundamental nature of the relationship between the states and the Federal Government, and individual citizens and the Federal Government.

I am not in favor of simple majority rule for amending the constitution–however, there is a lot of space between that model and what we have. I will address that in a post soon.
Steven L. Taylor

May 29, 2012 at 9:16 pm

@Doug Mataconis:

Of course we do not live in a Parliamentary system like the UK, so comparing their unwritten “Constitution” to ours in mostly a non sequiter.

Of course, the salient variable in comparisons to the UK is not that it is parliamentary, it is that it lacks a written constitution.

Brett does make a point: in the UK there is theoretical majority rule over the constitutional order, and yet tyranny has not been the result.
1. Doug Mataconis
  
  May 29, 2012 at 9:17 pm
  
  Steven,
  
  Of course, it is worth noting that the UK is a nation with a smaller, much more homogeneous population.
Steven L. Taylor

May 29, 2012 at 9:17 pm

@Just ‘nutha ig’rant cracker:

While I can see your point, I wonder whether the problems that you see are difficulties with the current system or features of electing spineless characatures of leadership with narrow vision and absolutist proclivities. Haven’t we met the enemy and found that he is us?

Well, part of our problems are institutional–problems that are very difficult to even consider addressing when the constitution is so difficult to change…
Steven L. Taylor

May 29, 2012 at 9:19 pm

@Doug Mataconis:

Additionally, the “undemocratic” nature of the Constitution is irrelevant given the fact that it is also supposed to exist to protect the rights of the minority.

I think it is essential to point out that all contemporary democratic constitutions have minority protections built into them. It is a myth that I frequently hear that only our constitutional order achieves that goal.
Doug Mataconis

May 29, 2012 at 9:23 pm

@Steven L. Taylor:

A fair point, but the question of what is adequate to protect the rights of the minority is a different question. Personally, I think our system balances it out far better than Parliamentary systems do.
Steven L. Taylor

May 29, 2012 at 9:27 pm

@Doug Mataconis:

I understand your points about the Courts, but that is the role the Courts were designed to serve so I don’t necessarily have a problem with that.

Of course, the courts weren’t especially designed to take on said role (indeed, the courts were barely designed at all). Moreover the irony ( in the context of this conversation) is that the acquisition of SCOTUS’ key power, judicial review, was acquired not via constitutional amendment, but extra-constitutional fiat (the Court simply asserted it). This is another example of changing the constitution without formal amendment.
al-Ameda

May 29, 2012 at 9:31 pm

@Doug Mataconis:

Why shouldn’t it be hard to change the fundamental structure of our Federal Government and impact the rights of minorities?

I’ll second that, the Constitution is a document that insulates us from majority impulses.
Steven L. Taylor

May 29, 2012 at 9:36 pm

@Doug Mataconis:

A fair point, but the question of what is adequate to protect the rights of the minority is a different question. Personally, I think our system balances it out far better than Parliamentary systems do.

Please forgive the fact that following is likely going to sound pompous, but I don’t know how else to say it without writing a lot more than is feasible for a blog comment: as a expert is in this field, i.e., the constitutional design of democracies, I can tell you that a) there are many, many democratic states that very strong protections for political minorities (even if they do not mirror, perhaps, the US in all ways*), and b) it has nothing to do with whether the systems are parliamentary or presidential (i.e., separation of powers systems). Indeed, on a somewhat different variable, representativeness, most parliamentary systems do a better job of representing political minorities–but that owes much to electoral rules. If the US had rules similar to most European democracies, you would be in a position to vote Libertarian and actually see Libertarians win seats in Congress. No small thing, that.

*One way the US Is different: we are probably the closest to absolutism in terms of speech than any country in the world.
Steven L. Taylor

May 29, 2012 at 9:38 pm

@al-Ameda:

I’ll second that, the Constitution is a document that insulates us from majority impulses.

I agree that one should not want the constitution to be subject to the whim of simple majorities. But there seems to be a misunderstanding in these threads: the choice is not between what we have and a system of simple majority votes. There is a vast amount of theoretical space in which to operate between those two poles.
Vast Variety

May 29, 2012 at 11:14 pm

The difficulty of changing the constitution isn’t the problem. Most of the issues that come up today have all ready been addressed in some way in the constitution as the document stands, even something as difficult for Republicans to understand as Marriage Equality.

The problem is that the political parties of this country have become far more interested in winning elections vs actually governing.
André Kenji de Sousa

May 30, 2012 at 12:02 am

Indeed, on a somewhat different variable, representativeness, most parliamentary systems do a better job of representing political minorities–but that owes much to electoral rules.

That depends on the definition of what these political minorities are.

If the US had rules similar to most European democracies, you would be in a position to vote Libertarian and actually see Libertarians win seats in Congress. No small thing, that.

Well, several US states are bigger than these democracies. 😉
André Kenji de Sousa

May 30, 2012 at 12:12 am

No, I think that there is a bigger question here: What´s the best way for a Constitution to limit the power of government? If it´s too easy to Amend a Constitution then politicians can simply ditch the parts of the Constitution that limits their powers. On the other hand, a relatively vague and short Constitution, like the American one, is subject to the judgment of the people in the Supreme Court.
André Kenji de Sousa

May 30, 2012 at 12:13 am

There is another point here: the devotion to historical figures like the Founding Fathers in POLICY discussions is something unique to the United States of America.
WR

May 30, 2012 at 12:34 am

@Doug Mataconis: “Of course, it is worth noting that the UK is a nation with a smaller, much more homogeneous population”

This seems to be the standard right wing explanation for why everything in the United States has to stay exactly as it has been, even if other systems work better. Allow a safety net like they have in Scandinavia? Nope, those are all smaller, much more homogeneous populations. Have heath care for all, like in other European states? Nope — smaller, more homogeneous.

Not only does this have nothing to do with the issues at question — it’s simply flat out wrong.

Doug, have you actually ever been to Britain? Yeah, it’s a smaller country. But it’s filled with Britains from all over the world — not just Wales, Scotland and Ireland (all of whose citizens might argue about being called “homogeneous”) but Africa and Asia. If you haven’t noticed, it’s been decades since beans on toast was replaced as the national dish by curries.
Lit3Bolt

May 30, 2012 at 12:38 am

I suspect I’m like many other informed people in America; while I would be thrilled to have the Constitution reformed in my lifetime, I have zero faith in our political elites to carry out said task.

Thus, since reform is not an option, we only have catastrophe or ossification in our political future.
grumpy realist

May 30, 2012 at 1:48 am

One of my friends described the American system of government as “a system designed by geniuses to be run by idiots.”

And put me on the side for wanting to keep the system as it is. California is a mess, partly because it’s so easy to amend its Constitution. (Also gets used as evidence as to why direct democracy isn’t the greatest idea.)

We may find the system extremely broken at present, but I don’t blame that on the Constitution. I blame it on the 24-hr news cycle, on the tendency of the media to look upon governing as nothing more than a series of rival football team matches, and the rise of the shock-jocks. We lost the Soviet Union as our Enemy and now have turned on each other. China must be sitting on its ass and laughing.
superdestroyer

May 30, 2012 at 9:01 am

Most progressive like the difficulty of amending the constitution because that leaves lawyers in charge and it means that the constitution means very little. Most amendmend had to do with changing numerical rules that courts could not blatantly disregard unlike their disregard for many portions of the constitution.

Notice how no one is proposing that if the Supreme Court overturns the ACA that the Democrats could just amend the constitution to make federal mandates legal. The proposals instead are to find a way to reword the law to make something legal that was previously ruled illegal.
That Other MIke

May 30, 2012 at 9:58 am

@Doug Mataconis: Except that isn’t true at all, Doug. You’re making the common American mistake of confusing/conflating Whiteness with a broad cultural base, and doing so in a European context is incorrect.

Although I am a resident of the US, my hometown is Abingdon, in Oxfordshire; I would lay good money on there being more cultural and dialectal differences between Abingdon and Gloucester (only fifty miles away) than between most US States; the difference is even more pronounced when you consider the differences between the North and South of England as general groupings, and the differences between everywhere else and London. And this doesn’t even take into account the broader differences between England and the other Home Nations.

So, no; the UK is not particularly homogenous when you consider the facts.
André Kenji de Sousa

May 30, 2012 at 8:20 pm

The point is not whiteness. The point is that United Kingdom is not extremely large country, where you should deal with the interest of very different regions. With the exception of Argentina, Canada and Australia, that have a relatively small population, all the ten biggest countries by area faces or faced problems with separatism. Mexico and Brazil faced problems with rebellious states in the 19 Century(Tejas was not the only state that proclaimed secession from Mexico: Zacatecas, three Northern states and Yuacatan tried the same thing that Texas did).

These regional differences creates a much tougher environment for parliamentarian systems. Not that I have any envy for the Parliamentary Democracies of Europe. The Dutch and specially the Italian Parliaments make the American Congress looks good. Hell, here in Latin America people laughs about the prospect of a country being lead by sexual pervert like Berlusconi..
That Other MIke

May 30, 2012 at 9:10 pm

@André Kenji de Sousa: Sorry, that’s nonsense. First of all, the comment was regarding homogeneity, and there is considerably less local/regional variation in the US than in Europe; I don’t know if you noticed, but separatist movements have not exactly been non-existent in Europe.