In James Joyner’s post below, Doug Mataconis raised the following points about amending the constitution:
The drafters of the Constitution recognized their own lack of perfection, and their inability to foretell the future, by putting the Amendment procedures of Article V in place. Yes, it’s a difficult thing to do, but that’s because it should be difficult to alter the fundamental law of the land without an adequate consensus. It’s not impossible, though, as has been proven on 27 different occasions in the past. The fact that we can’t, or won’t, come to a consensus on some issues isn’ their fault, it’s our own.
Emphases in the original.
I agree with the general sentiment, insofar as yes, consensus is a requirement for constitutional change and it shouldn’t be easy. But, I am going to blame the Framers in the sense that they choose an especially cumbersome mechanism that ultimately makes change very, very difficult and verges on the impossible when considered in conjunction with factors like the population-disparities between states and the general pro-conservative (small “c”) bias of the system (in simple terms, the system has a pro-rural bias, which tends to be opposed to change).
In our book comparing the US to 30 other democracies, my co-authors and I noted the amendment processes of all the constitutional orders under examination and found the US’ to be the most restrictive. It requires bicameral approval, two-level action (federal and state), and high thresholds (2/3rds at proposal and 3/4th at ratification). Note that these were not derived as the result of some theoretical scheme, but rather as part of the politicking of the convention.
Here is the figure comparing amendment processes. Top left is the most permissive, bottom right is the least.
Of course, Doug is correct that having a complex system does not mean that amendment is impossible. Of course what it does mean (and has meant) is that we have allowed constitutional change via Supreme Court because is has been the only viable route (whether originalists like it or not). It also means that systemic changes are likely only to come via major crisis/breakdown of the system,
On those last points, I do blame the Framers for creating such a restrictive process that reform is mostly coming in via different routes (the courts, and norm changes) and that major reform can only occur via crisis.
But, yes, contemporary Americans are to be blamed for not addressing major problems in the here and now.
But let’s talk about those 27 amendments that appear to prove that the system can be changed, but thinking them through actually show how little change the amendment process produces.
Consider: the first 10 are the Bill of Rights–basically extensions of the writing of the Constitution itself, all ratified by 1791.
The next two, the 11th (about who can sue states) and the 12th (fixing a flaw in the Electoral College), were early tweaks ratified in 1795 and 1804, respectively.
The 27th was actually one of twelve proposals written to be the Bill of Rights, so while it was ratified in 1992,* it belongs in this early set of immediate post-convention tweaks.
So, 13 of the 27 (48.15%) of all the amendments (almost half!) are from this very early period and are all of a piece with either fulfilling political deals linked to ratification (i.e., the Bill of Rights) or are linked to post-drafting tweaks. These are all better understood as part of the writing of the Constitution, as opposed to examples of how the process allows for change.
The next three amendments, the 13th, 14th, and 15th are the Civil War amendments, which abolished slavery, made former slaves citizens and extended equal protection of the law, and gave black males the right to vote (respectively).
Here we see how crisis leads to change–it took a bloody Civil War to rectify the sin of slavery (and only force of arms followed by Reconstruction led to southern states acquiescing to these changes–normal politics was not going to accomplish that feat).
So, that leaves only 11 amendments after the Civil War (if we count the 27th as I did above). If we note that two of those are about prohibition (its creation and its repeal, the 18th and the 21st) we are down to 9. This is not a robust process for addressing change.
And, I would note, that the last time we successfully went through the amendment process was 1971–almost a half century ago (longer even than the ~40-year gap between the 15th and the 16th).
All of this is to say that we need to consider all of this when evaluating exactly what our amendment process can actually accomplish.
*If you don’t know the story of the 27th Amendment, I recommend the following: How a C-grade college term paper led to a constitutional amendment.
