Fixing Constitutional Amendments: A Cure Worse Than The Disease

It is easy to look at our chaotic political situation and say that we wish substantive, enduring change could be enacted more quickly. Legislation can get passed one year and repealed the next, so it is easy to see why the idea of making constitutional amendments simpler to pass is appealing. What’s more, when a problem has its roots in our Constitution, a true solution is practically impossible under the current state of affairs. The suggestion that we allow amendments to pass with two-thirds majorities in Congress alone, and no input from the states, is an attractive one. There are genuine problems that could be addressed via constitutional amendment, and this article’s companion piece names a few. I think, though, that the proposed change would create more problems than it solved. I think that it is preferable that constitutional amendments remain extremely difficult to pass.

Let’s assume for the sake of argument that the proposed change will noticeably increase the frequency of successful constitutional amendments. Admittedly the vast majority of failed amendments never make it out of Congress—only a half dozen have ever been voted down by the states. That said, I expect politicians would work harder to get them through—trading votes and compromising—if they knew there wasn’t an additional obstacle in their path. Regardless, if we do not assume that this change will effectively increase the number of constitutional amendments, the debate is meaningless.

My first worry is that there is no reason to think that amendments will be used for our preferred purposes. Whether you lean left or right, it is tempting to think of passing an amendment that ensures that your policy agenda is enacted. If it’s enshrined in the Constitution, it is practically inviolable. But the other side has the same avenue open to them, making it easier makes it easier for everyone.[su_pullquote align=”right”]It would be tyranny of the majority in the most absurd of ways; a huge majority lasting a single election cycle could rule the nation for decades.[/su_pullquote]

We might start off addressing bipartisan complaints like the Electoral College, but what comes after that? The entire fabric of our legal system becomes vulnerable to popular waves from either side and to blatantly partisan constitutional amendments. Let’s say the Democrats have an incredibly good year in 2020, so with some compromises and the cooperation of moderate conservatives they can hit the two-thirds mark on constitutional amendments.[su_pullquote]The entire fabric of our legal system becomes vulnerable to popular waves from either side and to blatantly partisan constitutional amendments.[/su_pullquote] All of a sudden, they have the power to alter the founding principles of the law in their favor. Since partisan waves of that magnitude are rare, it could be a whole generation before the GOP has enough votes to override. That could be a generation with no 2nd Amendment, or with abortion rights written into the Constitution. If all that sounds peachy to you, imagine the opposite happens and the country has to wait for a two-thirds-of-Congress blue wave to repeal an amendment banning abortion. It would be tyranny of the majority in the most absurd of ways; a huge majority lasting a single election cycle could rule the nation for decades, and all this from representatives elected only for two to six years. A two-thirds majority in Congress does not prove that two-thirds of the American people or the states support an amendment, and it certainly does not prove anything about the preferences of future generations who must live under our amendments.[su_pullquote align=”right”]A two-thirds majority in Congress does not prove that two-thirds of the American people or the states support an amendment[/su_pullquote]

Even if we assume that these sorts of partisan wave-driven amendments will be reversed relatively quickly—say, five to ten years later—this gives us a chaotic and concerning level of legal change. The Constitution is at the foundation of our legal system, and when it is amended, any statutes or judicial rulings stemming from the overwritten law become meaningless. The courts will be constantly defining our new laws and ruling on all of those new legal grey areas. Unelected judges and justices will be in the position of constantly legislating from the bench as more and more amendments appear that need judicial interpretation. As the responsibility for lawmaking flows towards the courts and away from the legislatures, our democracy becomes less democratic. What’s more, constant change makes it tough for people to keep track of what the law actually says, and act accordingly. This places still more power in the hands of legal insiders, the judges and lawyers who find the law far more accessible.

I am not saying the current situation is perfect. I am not saying that there aren’t advantages to having constitutional amendments as a viable option in the legislative toolbox. My goal is only to outline the dangers that grow progressively more worrisome the easier it is to pass an amendment. Exactly how those dangers are to be weighed is a debatable question. I think the weight of the arguments shows, however, that we should err towards leaving constitutional amendments rather difficult to pass.

Jack Goldberg ’19 studies in the College of Arts & Sciences. He can be reached at jackgoldberg@wustl.edu