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Will Cover
Oct 17, 2022
United States' Amendment Process Needs Updating
For the last several decades, an average of 76 constitutional amendments have been proposed for the United States Constitution every year (“Measures Proposed to Amend the Constitution” n.d.). The last time a truly substantive amendment to the Constitution was ratified was 1971, with the lowering of the voting age from 21 to 18. As political polarization and obstruction grow, it seems possible that the Constitution will never be amended again (Boxel et al. 2020). This process is too important to ensuring constitutional stability and popular sovereignty to be rendered useless. Instead, the U.S. needs to amend the amendment process.
When the Constitution was written, the framers did not intend for the ratification of amendments to be as difficult as it has become. Thomas Jefferson argued that the Constitution should be revised every 19 years, to ensure that the current generation was able to actively choose to engage in the social contract that is the United States government (Reutter 2007). Indeed, the Bill of Rights, which is one of the most important parts to the Constitution, is made up entirely of amendments. Nonetheless, the United States is in a prolonged constitutional dry spell.
The lack of recently ratified amendments is not for lack of trying, or popularity. The current Congress has proposed an amendment which would make healthcare a federally protected right (“H.J.Res.44” 2021). Such an amendment is supported by over 60% of Americans (Jones 2020). Another recent proposal sought to replace the Electoral College with a national popular vote, which also has over 60% support (Salzer and Kiley 2022). During his administration, President Barack Obama called for an amendment overturning the Supreme Court’s decision in Citizens United v. FEC. While it was more controversial at the time, three-quarters of adults and two-thirds of Republicans support what has become an incredibly popular amendment (Balcerzak 2018). Nonetheless, there has been no movement towards making this proposal a reality.
The roadblock in the constitutional amendment process is the Constitution itself. Article V outlines two methods for proposing an amendment: a two-thirds majority in both houses of Congress or a constitutional convention called by two-thirds of the state legislatures. Once an amendment has been proposed, there are two methods for ratification: the approval of three-fourths of the state legislatures or three-fourths of specially-called state conventions (“Article V, U.S. Constitution” n.d.). When the Constitution was written, reaching this level of cooperation was much less difficult given the relatively small size and population of the United States compared to 2022. Now, the requirement for such high majorities is uniquely stringent compared to constitutions around the world (Lijphart 2012).
The institutional factors behind the amendment process do not entirely explain for why amendments occur, however. This explanation does not account for why the United States has historically passed a series of popular and successful amendments, but has failed to do so over recent decades. Instead, the frequency of amendments are the result of the interaction between institutional and cultural factors. The United States takes the worst of both worlds, with unusually obstructive institutional factors, and less trusting attitudes coupled with polarized political parties (Blake et al. 2021).
It is not particularly surprising, then, that the possibility of a constitutional amendment seems increasingly unlikely for the United States. The ability to amend a constitution, however, is imperative to its utility. Amendments are typically thought of as restricting, by placing limitations on the power of the government. However, they can also be enabling, by providing an alternative route for people to exercise their democratic authority when legislatures prove unwilling to act (Sunstein 1991). The entire purpose of the amendment process is to provide slightly more stability than legislation, but preserve the ability to change a constitutional system to adequately meet the needs of current generations. With such a high and accelerating rate of social and technological change, constitutional flexibility is more important now than ever (Ginsburg and Melton 2015). Nevertheless, the current amendment process in the United States makes this flexibility impossible, and leaves many popular amendment proposals with nowhere to go.
Fortunately, the prevalence of constitutional systems around the world provide the United States with many alternative amendment processes to choose from. Typically, there are three levels of popularity an amendment needs to reach to be approved: a simple majority, between a one-half and two-thirds majority, or a two-thirds majority. Allowing constitutional amendments through national referendums is another popular method which would allow the United States to circumvent legislative gridlock. One particularly interesting process comes from Ireland, which requires only a simple majority to approve an amendment, but has both a legislative vote and national referendum for ratification (Lijphart 2012).
While there is no clearly correct process for constitutional amendment, Article V is not working for the United States. The realities of modern politics has rendered it impossible to pass amendments, even if they have broad support from the voters of both political parties. In particular, the requirement for approval from three-fourths of the states to ratify an amendment is increasingly unrealistic for a republic with 37 more states than when this bar was decided upon. The introduction of a national referendum, potentially coupled with a lower ratification threshold under the existing methods would ensure that a valuable safeguard of popular sovereignty and constitutional security would not go unused. Another alternative is the Irish model, with a referendum replacing the role of state legislatures in the amendment process. Ireland has used their more flexible system to pass an amendment eliminating the country’s incredibly restrictive abortion policy (Ely 2022). Similarly, the American public broadly favors a legal right to abortions, but this and other popular amendments would have no possibility of ratification under the current system (Hartig 2022).
References
“Article V, U.S. Constitution.” National Archives and Records Administration, National
Archives and Records Administration, https://www.archives.gov/federal-
register/constitution/article-v.html.
Balcerzak, Ashley. “Study: Most Americans Want to Kill 'Citizens United' with Constitutional
Amendment.” The World, The World, 10 May 2018, https://theworld.org/stories/2018-
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