Amendment Barriers

Doug Mataconis and Steven Taylor go back and forth on whether the Constitution is too hard to amend. This is an area where my instincts are to agree with Mataconis, but where I actually agree with Taylor rather strongly.

One of the arguments that drives me batty is, with regard to a plethora of proposed amendments, “For people who claim to love the Constitution, conservatives sure want to change it a lot.” To me, there is absolutely nothing contradictory in loving the Constitution and supporting changes that are expressly authorized in said constitution. There is more textual support for changing the Constitution by way of amendment than by way of judicial review, which was something we inferred. Now, whether the right actually believes in this distinction is another matter. But it’s a valid distinction whether they are using it cynically or genuinely.

The problem is that the amendment system is broken. The bar is set so high that the only way to deal with the changes of time with regard to the Constitution is by way of judicial decree. Now, I don’t support making constitutional changes really easy, either. I originally come from a state where it is such, and that opens up a host of other problems. I also, unlike the University of Texas professor who got this conversation started, don’t think that we should be looking at state constitutions anyway as I don’t believe their comparable. Looking internationally, as Taylor does in a second post, is not necessarily a bad idea, so long as we remain cognizant of the fact that what works there may not work here.

The point that it’s more possible – at least in theory – to change the constitution by way of another convention is an interesting one. And almost terrifying. That would open the door towards all manner of change and I don’t have the highest confidence in what we would come up with. I think that sense is universal, which is one of the major reasons why one has never been called. That and the small states banding together to Save Our Senate (which would almost certainly get a look-over if this Pandora’s Box were opened). If it weren’t for the valve-release of judicial review, we might have had to call one by now just to sort out the whole “Interstate Commerce” thing. Not that I think the courts have it right, but it may well be (and I think is) the lesser of evils.

I’m not sure exactly what the correct threshold is. I’d rather err on the side of “too hard” than “too easy,” but I think there is a strong argument that we err too far in that direction.

Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.


  1. What I found really interesting about Doug’s piece is that this is only the third-longest period since the last previous amendment. I try to imagine what could possibly happen that would lead us to pass another one, and my brain just gives me a blue screen of death. I wonder if it felt that way to those of a similarly reformist persuasion during the other long periods? (Although given that one of those periods still had slavery on the table, I like to think most people had some basic notion where that was headed.)

    • The ERA is the last Amendment that had enough steam to start people signing things.

      If there’s going to be another amendment before I die, I suspect that the ERA will be it.

      • My first response to this was to suggest perhaps a GRA, but then I remembered that we’ll just let the courts use the 14th Amendment to solve that problem, and then I was back to the OP.

    • It will happen again when there is something that the country is thoroughly behind that the courts certainly won’t let them do. A possible example that comes to mind is health care. If everyone finally agrees that the current system can’t work but every attempt at any sort of fundamental overhaul is blocked by the courts, then something will address whatever it is that has the courts blocking it.

      More likely than that, though (since I don’t think the courts will stop acting as a pressure-release valve), it will be something electoral: Altering or repealing or enacting term limits or something. Maybe, for that matter, term-limiting the court. Something like when they got rid of independent counsel, when every’d just had enough. More likely than all of these things is the Electoral College. The Democrats got burned in 2000. Had the GOP gotten burned in 2004 (and they almost did), I think there is a good chance that we’d have a national popular vote about now.

      I’d be surprised if there weren’t something in my lifetime. I just don’t know what.

      • The existence of the NPV movement seems like a really good indication that we’ve mostly just given up on the idea of constitutional amendment.

        I do think you’re right, though. Something will presumably have to happen. I just can’t get my head around it at this point. How about marijuana legalization?

        • The problem with the NPV is that it needs either conservative or swing states. There is no way the swing states would ever go for it. If you can get the conservative states on board, such as by having George W. Bush win the popular vote by seven digits but lose the electoral just after Gore won by six digits and lost the electoral, I think the path becomes very clear for an amendment. In other words, if you have what’s required for the NPV, you have what you need for a constitutional amendment. I think the election dynamics have changed that the EC is going to become a more regular issue. All it takes is one side getting burned, then the other. I think this is, if not likely, very plausible.

      • > More likely than that, though (since I don’t think
        > the courts will stop acting as a pressure-release
        > valve), it will be something electoral


        Ain’t no slogan that gets people up and bothered like, “Your vote is systemically denied to you!” I expect this to come about sometime in the next 20 years, probably in a state that has a very-much increasing Latino population that jumps from a minority to an effective super-majority. Texas, Arizona, California are the three most likely candidates, with Texas and Arizona being more likely than California to pass some sort of “meets federal challenge but it obviously just in there to keep the expatriate Mexicans from voting” law.

        But I think this sort of thing takes time to build up enough steam. We’re obviously not there *yet*…

  2. One of Taylor’s points, that a virtually unamendable constitution leaves questions to the judiciary, may not be the worst thing in the world. In practice it has served the system with a bit a flexibility that a pure textual approach may not have had. Plus, isn’t this the way they basically do it in the UK, with no formal written constitution? (just several hundred years of democratic precedents)

    • It’s very definitely not the worst thing in the world. Far worse are some of these state constitutions that are only reined in by the fact that they have to honor the federal constitution, too.

      But I do think there are better things, too.

      • One of the roots of California’s troubles is that the state constitution can be amended by a simple majority of the voters.

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