How our inability to change America’s most important document is distorting our politics and government.
When the United States Constitution was written in 1787, it was an astonishing political novelty, even in an era of constitution-making. Before the Constitutional Convention, James Madison did a study of “ancient and modern confederations,” but written constitutions were so new that he had almost none to read. Also, no one had any idea how long a written constitution would take, or could or should take. Thomas Jefferson thought nineteen years could be about right. He was not far wrong: all over the world, written constitutions appear to have lasted only 17 years on average before they were abolished. Not the US Constitution. It has lasted more than two hundred years and has not changed in any significant way since 1971, more than half a century ago.
Laws rule people; constitutions rule governments. Lately, American democracy has begun to wobble, leaning on a constitution that has become fragile. How far can a constitution bend before it breaks? The study of written constitutions has become a lot more sophisticated since Madison’s time. A project called Constitution has collected and analyzed every national constitution ever adopted. “Constitutions are designed to stabilize and facilitate politics,” write the project’s founders. “But there is certainly the possibility that constitutions can outlive their usefulness and create pathologies in the political process that disrupt democracy.” Could that happen in the United States?
The question is urgent, the answer elusive. There are a few different ways to go about it. One is examining the history of attempts to amend the constitution, a topic that has been surprisingly little studied. Working closely with Constitution, I am leading a project called Amend – an effort to compile a comprehensive archive of every attempt to amend the US Constitution.
Another approach is to question the public. In July 2022, the nonprofits More in Common and YouGov teamed up with Constitution and Amend to conduct a national survey. It asked a sample of 2,000 Americans about whether the Constitution still works and, if not, how to fix it.
In this piece, The New Yorker asks you some of the same questions. More than two centuries later, should the US Constitution be restored?
Which statement comes closest to your view of the U.S. Constitution?
The Constitution is basically fine as it is. To see also : OHA: Climate change anxiety plays a big role in a youth mental health crisis.
The Constitution needs to be revised and amended more often.
The constitution needs to be completely rewritten and replaced.
I don’t know enough about the Constitution to say.
Americans have been asking this question in opinion polls for a long time, as political scientist Zachary Elkins has shown. When asked in 1937, “Should the Constitution be easier to amend?”, 28 percent of those polled answered yes and 60 percent said no. Half a century later, in 1987, another survey asked more or less the same question, and got more or less the same answer: 20 percent of respondents said the Constitution was too difficult to amend, and 60 percent said amending it was about as hard as it should be.
This era of contentment seems to have come to an end. In 2022, 41 percent of respondents said the Constitution should be revised and amended more frequently, and another 7 percent said it should be completely rewritten and replaced. Those are the total numbers. But the results are strikingly polarized. Seventy-two percent of Republicans think the Constitution is basically fine as it is; 72 percent of Democrats disagree.
In 1787, the men who wrote the Constitution added an amending provision — Article V — knowing that changing circumstances would require revision. At the time, change meant correcting, repairing and recovering; it mostly implied moral progress, the kind you signify when you say you’re making amends or improving your life. The idea for an amendment clause, a constitutional fail-safe, came from the states, where people demanded that their constitutions be revised, “to correct the mistakes that will creep in over time, or change the situation.” as a city meeting put it. No article of the constitution is more important, the Framers argued, because if you couldn’t revise a constitution, you could only change the government through a revolution.
Without Article V, the Constitution would not have been ratified. But from the start, most of the amendments failed, and that was the intention. Amending the Constitution requires a double supermajority: An amendment tabled in Congress must be passed by two-thirds of the House of Representatives and then approved by the legislatures of three-quarters of the states. Also, many proposed amendments are terrible. In March 1861, weeks before the shots were fired at Fort Sumter, Congress passed a doomed amendment designed to halt the secession of Southern states: to abolish or interfere with, within a State, its domestic institutions, including those of persons bound to work or service under the laws of that State.” Others have been stupid, such as the amendment proposed in 1893 that would have called the country the United States of the Earth. And many have been perfectly reasonable, but turned out not to be necessary. The Child Labor Amendment proposed to give Congress the “power to restrict, regulate, and prohibit the employment of persons under the age of eighteen.” It passed through Congress in 1924 and went to the states for ratification, where it failed; later child labor was abolished under the terms of the Fair Labor Standards Act of 1938.
More than ten thousand amendments have been tabled in Congress. Many more have never made it this far. Only twenty-seven have ever been ratified and have become part of the Constitution. If you look at them all at once, you see patterns. Most successful amendments concern a constitutional settlement in the wake of a political revolution. Ratifications have usually come in fits and starts: first during the struggle for the Constitution itself, when critics secured the ratification of Amendments One through Ten, the Bill of Rights; then during the civil war and reconstruction, a second establishment, marked by the ratification of amendments thirteen to fifteen; and finally during the progressive era, when reformers reached amendments sixteen through nineteen. Since then, scattered amendments have been ratified, most notably the twenty-fifth, which instituted proceedings in case of presidential weakness, and the twenty-sixth, which lowered the voting age to eighteen. The Twenty-seventh Amendment, which deals with congressional salaries, was ratified in 1992, but was first proposed in 1789. All of these were one-offs, rather than part of efforts to constitutionalize political revolutions.
Amending the Constitution
Since 1789, members of Congress have submitted more than ten thousand proposals to amend the Constitution. Nevertheless, only twenty-seven amendments have ever been ratified, giving the United States one of the lowest rates of change in the world. Read also : Learn More About The Joy Of Growing Your Own Food – Food Man. The rest are “discards”, amendments that failed.
In this timeline, amendment proposals are grouped by congressional session and ranked by the year they were introduced as bills.
It has always been difficult to change the Constitution. But over the past half-century, it’s gotten a lot harder — so hard that people hardly try it anymore. Between 1789 and 1804 – fifteen years – the Constitution was amended twelve times. Between 1805 and 2022 – two hundred and seventeen years – it has been amended only fifteen times and only once since 1971. The Framers failed to anticipate two developments that have made the double supermajority required for Article V almost impossible: the emergence of the first political parties, which took place in the 1970s, and the establishment of a stable two-party system, rather than in the 1970s. twentieth century. As John Adams lamented in 1808, “The principle seems to be established on both sides that the nation should never be ruled by the nation: but the whole should be ruled exclusively by one party.” This turn of events raised the bar for amendment of the Constitution. The current era of party polarization, which began in the early 1970s, has raised the bar much, much higher.
How high? Political scientists talk about the ‘change rate’: the number of amendments to a particular constitution per year. Divide twenty-seven ratified amendments by two hundred and thirty-three years and you get 0.12, the US rate of change. It is one of the lowest rates in the world.
What effect does that have on American politics and government? Think of the Electoral College. Proposals to reform or abolish the electoral college have been tabled more than 700 times in Congress since 1800, and the election of the president by ballot has gained widespread support over the past half-century. In 1967, sixty-five percent of Americans were in favor of it. And since then, support has stayed at roughly the same level, with the exception of a notable dip in 2016.
As you may know, Presidents are chosen not by direct popular vote but by the Electoral College system, in which each state receives electoral votes based on its population. In the 2016 election, for example, Hillary Clinton won the popular vote, and Donald Trump won the Electoral College vote. Would you favor passing a constitutional amendment that would determine the winner of future Presidential elections by popular vote, or would you rather continue the current system, which determines the winner by Electoral College votes?
Change the constitution to determine the winner by voting. To see also : Remarks by Chief Lynn Malerba at the United States Treasurer inauguration ceremony.
Continue with winner determined by Electoral College.
The More in Common/YouGov 2022 survey suggests that if a constitutional amendment to abolish the electoral college were a matter of public opinion, it would win, forty-seven percent to thirty-five. However, support varies by party: Seventy-three percent of Democrats want to abolish the Electoral College and 63 percent of Republicans want to keep it. Such a change does not seem to be in the realm of the possible. Accordingly, most people interested in this reform have instead sought to increase the size of the House of Representatives and admit Puerto Rico, the District of Columbia, and Guam into the state — both measures that will increase the number of delegates to the United States. Electoral College would change . Meanwhile, the domestic tranquility remains elusive. In two of the past six presidential elections, 2000 and 2016, the winner of the popular vote has lost the presidency; in the wake of the 2020 election, supporters of the loser staged an armed uprising at the Capitol.
An immutable constitution is not an American tradition. US state constitutions are much easier to amend than the federal constitution. The average rate of change of a US state is 1.23; The Alabama Constitution has a rate of change of 8.07. However, a high rate of change is generally not a sign of political well-being, as it comes at the expense of stability. It can also be disastrous in states where constitutions can be changed by a popular referendum: Research suggests that the language of voting initiatives is so corny that many voters, confused or misled, end up casting votes that go against their real preference. It’s a Goldilocks problem. You don’t want your constitution to be too hard to change, but you don’t want it to be too easy either.
To make it easier to amend the Constitution would itself require a constitutional amendment, meaning it won’t happen. But what if it could? The most radical way to make amendments easier would be to drop supermajority requirements, allow Congress to pass proposed amendments by a simple majority, and then not send them to the state legislature. for ratification, but to the whole people, through a national popular referendum. I’m not suggesting this. No one is, not even the far-right movement – a descendant of the Tea Party – calling for a second Constitutional Treaty. Still, it’s a valuable thought experiment. Would the 85 percent of liberals who want to make the constitution easier to change be happy with the results?
Consider, for example, the hot-button issue of immigration. Amendments to revoke birthright citizenship — a guarantee of the Fourteenth Amendment — have been introduced in Congress at least twenty times since 1991. Red states whose governors have taken strong anti-immigration stances — including Texas’s Greg Abbott and Florida’s Ron DeSantis — may well support amendments to their state constitutions that restrict immigrant rights. And a national initiative is easy to imagine.
Would you favor or oppose the following? A constitutional amendment that would deny the children of undocumented immigrants, tourists, and temporary residents automatic U.S. citizenship?
Terrifyingly, using a referendum-based system, a federal constitutional amendment ending birthright citizenship would be defeated only very narrowly, forty-nine percent to fifty-one, according to the poll conducted by More in Common and YouGov.
You could ask the same question about abortion. This summer, Kansas voters rejected a proposed state constitutional amendment banning all abortions. In November, voters in California, Michigan and Vermont will vote on amendments to their states’ constitutions guaranteeing the right to abortion. What would be the result if abortion were submitted to a national popular referendum?
Would you favor or oppose the following? A constitutional amendment guaranteeing the right to access abortion.
Surveys are not binding. They aren’t even particularly reliable. But this 2022 poll offers at least a glimpse of what could happen if some constitutional amendments were voted on in a nationwide referendum this year. A constitutional amendment to restrict abortion would likely be ratified, fifty-one to forty-nine – and yet, paradoxically, a constitutional amendment to guarantee the right to abortion would also be ratified, from fifty-seven to forty-three.
Under current rules, no federal abortion amendment could be ratified. No proposal, in any direction, will win a two-thirds majority in either house. But that does not mean that the Constitution will not be amended on this point. Instead, it is undergoing massive change through constitutional interpretation, in the hands of the Supreme Court.
“Nothing new can be incorporated into the constitution except through the amendment process,” Judge Felix Frankfurter declared in 1956, and “nothing old can be removed without the same process.” That is not entirely true. The Constitution has become immutable, but not immutable. Its meaning can be changed by the nine people who serve on the Supreme Court. They can’t rewrite it, but they can reread it.
The Framers did not design or even anticipate this method of amending the Constitution. They had no intention of judicial review (the Supreme Court’s power to review the constitutionality of legislation), and they believed they were protected from the possibility of judicial supremacy (the inability of another branch of government to control the power).
As with the filibuster, whether you like judicial supremacy generally depends on whether your party is in power or not. The Court is the least democratic branch of government. But it also has the ability to protect the rights of minorities from a majority. In the 1950s, because Jim Crow laws prevented blacks in the South from voting, it proved impossible to end segregation through electoral politics or a constitutional amendment; instead, the N.A.A.C.P. tried to end it by taking Brown v. Board of Education before the Supreme Court. Since then, the Court has made many constitutional changes: it has secured the rights of criminal suspects; established rights to contraception, abortion and same-sex marriage; declared corporate campaign donations as free speech; and interpreted the Second Amendment as limiting the government’s ability to regulate firearms. Which of these you think are bad decisions and which are good depends on your point of view on many things. But, unlike a constitutional amendment, any decision the Court makes can be reversed, as was overturned this year in 1973’s Dobbs v. Jackson Women’s Health Organization, Roe v. Wade. (You can reverse a constitutional amendment, but only with another: That’s how the ban ended.)
In 2002, Congress considered a proposed amendment that read, “Marriage in the United States shall consist only of the union of a man and a woman.” Introduced again and again in subsequent congressional sessions, it went nowhere. Instead, in 2015 in Obergefell v. Hodges, the Supreme Court ruled that same-sex marriage is constitutionally guaranteed under the Equal Protection Clause of the Fourteenth Amendment. Given the direction the Court is heading, will that ruling be sufficient to protect that right? Alternatively, if this question too were put to a national popular vote, how would Americans lean?
Would you favor or oppose the following? A constitutional amendment guaranteeing the right to marry of any two adult citizens, regardless of sex or gender.
Much depends on the formulation of survey questions. But the research data suggests that in a referendum a constitutional amendment banning same-sex marriage would be rejected thirty-five percent to sixty-five, while a constitutional amendment guaranteeing same-sex marriage would be ratified sixty-two to thirty-eight.
Reversing Roe v. Wade did not require a constitutional amendment (although many were proposed). Instead, something extraordinary was needed: an entirely new way of constitutional interpretation. Roe built on a 1965 case, Griswold v. Connecticut, which protected access to birth control under a right to privacy. After Griswold, conservative critics of the Court began to devise a tailor-made approach to constitutional interpretation to beat it: the case law of originalism. Robert Bork first proposed his framework in 1971, in an essay arguing against Griswold. Originalism underlies one of the most radical constitutional reversals in recent American history: the reinterpretation of the Second Amendment as protecting an individual right to bear arms as opposed to the people’s right to form militias. (Bork himself disagreed with this reinterpretation, put forward by the N.R.A.) This spring, in the Bruen case, the Court strengthened its N.R.A.-informed interpretation of the Second Amendment. What would happen if the Second Amendment were held in a referendum?
The Second Amendment currently reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Which revised version, if any, would be closest to your preference?
“The right of the people to have and bear weapons will not be violated.”
“The right of the people to have and bear arms should not be violated except to ensure public safety.”
“The government will regulate the keeping and carrying of weapons by civilians.”
Delete any mention of weapons from the Constitution.
There is a good reason that US constitutional amendments are not decided through national referenda. (After all, remember that Brexit was decided by a national popular referendum.) “A nation of philosophers is as little to be expected as the philosophical race of kings that Plato desired,” Madison wrote in Federalist No. 49. to disturb peace by taking too much interest in the public passions is an even more serious objection to a frequent reference of constitutional questions to the decision of the whole society.” If the question of whether the government can regulate the possession of firearms were put to the people, and the people were divided equally, what would be the result? Madison was concerned that bringing constitutional matters directly to the people was an experiment was “too thorny to be unnecessarily multiplied.” But again, it is clear that the people should play a greater role than if no more amendments were sent to the states.
All kinds of ideas are circulating to shake things up. Constitutional populists — Tea Partyers, Trumpists, and other conservatives, from Rick Santorum to Greg Abbott — have united around a proposal to revise the Constitution through a provision in Article V that has never been used, stating that the country is “on the application of the legislatures of two-thirds of the various states, will call a convention for proposing amendments.” Nineteen state legislators created a version of that filing; thirty-four are required. Since 2013, this effort has been led by the Convention of States project, which is funded in part by the Koch brothers. A new book, “The Constitution in Jeopardy,” co-authored by former Democratic Senator Russ Feingold, warns that, if Republicans win a few more state legislatures this year, a convention that will change the Constitution, or at least the federal government , is around the corner.
If you could fix Item V, how would you do it? In 2020, the National Constitution Center asked three teams of experts — mostly constitutional lawyers, divided into teams of libertarians, conservatives and progressives — to draft a new constitution. The libertarians, who joked that “all we had to do was add ‘and we mean it’ to the end of every clause,” left Article V alone. The conservatives decided to change their constitution more easily (“but not too much easier”) by lowering the vote requirement in Congress from two-thirds to three-fifths, and in the states from three-quarters to two-thirds. And the progressives came up with a plan under which changes could be proposed “not only by two-thirds of the members of each House (or two-thirds of the states), but by members of each House (or states, for constitutional conventions) who -represent one-third of the members of each House (or two-thirds of the states). third of the American population.” Think of it as an amendment caucus; if an amendment passed in Congress, it could then be ratified by three-quarters of the states (as things are now) or “by states representing three-quarters of the population.” No one is calling for constitutional change through a national referendum.
Americans are not going to change Article V any time soon, because we are not going to change any part of the Constitution any time soon. Ultimately, the really interesting question is not what would happen if the people could change the constitution through a popular vote, but what actually happened, in the first place, to paralyze Article V and give the Supreme Court superpowers.
The Constitution became virtually untouchable in the early 1970s, just as originalism was rising slowly and steadily. The Twenty-sixth Amendment, which was ratified in 1971 and lowered the voting age from twenty-one to eighteen, a goal of the anti-war movement, turned out to be the only amendment to establish a goal of one of the political revolutions of the 1960s: the women’s movement. , the civil rights movement, the gay rights movement and the environmental rights movement. People did not see that coming: they expected that these movements would lead to adjustments.
In 1970, civil rights activist, constitutional theorist, and Episcopal priest Pauli Murray told the Senate Judiciary Committee that passing the proposed amendment on equal rights, excluding gender discrimination, was essential to ending what Murray Jane mentioned. Crow, and to usher in a new and better era in the history of the country’s constitutional democracy:
The adoption of the Equal Rights Amendment and its ratification by the various states could usher in an unprecedented Golden Age of human relations in our national lives and help our country become an example of the practical ideal that the sole aim of governments is to create the conditions under which each individual’s uniqueness is nurtured and encouraged to fulfill his or her highest creative potential.
Of course that didn’t happen. No golden age ever does that. In 1972, Congress passed the Equal Rights Amendment and sent it to states, where most observers expected it to be ratified soon. But in 1973, the Supreme Court ruled in Roe v. Wade. And conservatives began a decades-long campaign to promote originality, reverse Roe, and the E.R.A. by stating, as Phyllis Schlafly did, that “the E.R.A. means abortion.” Every major change attempted since then has failed. And while efforts are being made to destroy the E.R.A. to revive them, they have not succeeded so far either.
Polarization weakened Article V. But the Constitution really broke when it became too fragile to guarantee equal rights for women. Liberals gave up on constitutional amendment; conservatives abandoned it in favor of promoting originality. Yet nothing is broken that cannot be repaired. The question now is how.
Funding for Amend has been provided by the National Endowment for the Humanities, the Harvard Data Science Initiative, and the Inequality in America Initiative. Special thanks to Zachary Elkins and Constitut and to the Comparative Constitutions Project and More in Common. Assistance in the investigation was provided by Mia Hazra, Henry Haimo, Samuel Lowry, Imaan Mirza, Tobias Resch, Fawwaz Shoukfeh, Jonathan Schneiderman and Meimei Xu.
