Amending The Amendment Process

Under Article V of the Constitution, two thirds of both the House and the Senate must approve of any potential Constitutional Amendment. If both houses approve, the amendment is sent to each of the fifty states and becomes law only if three quarters of the states vote to ratify it. The system creates daunting barriers for any attempts to modify the constitution. Only seventeen amendments have overcome these barriers since the passage of the Bill of Rights and none in the past 25 years.

[su_pullquote align=”right”]Want to reform the Senate so that Wyoming’s residents do not have 68 times the voting power of California’s residents?[/su_pullquote]While a system resilient to change has real benefits, this extreme form of conservatism leaves options off the table. Want to reform the Senate so that Wyoming’s residents do not have 68 times the voting power of California’s residents? Forget about it. Outside the box but potentially transformative ideas for how to improve electoral politics are excluded from political discourse, such as proportional representation, ranked choice voting, or term limiting the judiciary. More banal proposals are essentially precluded as well, such as gun control, campaign finance reform, or even restrictions on Presidential pardon power. Reasonable people can oppose any of these policy changes; excluding them from consideration prior to consideration, however, cannot be excused.

[su_pullquote]Defenders of Article V typically point to its ability to protect the minority from the tyranny of the majority, but what if that minority has been in the grave for a hundred years?[/su_pullquote]The current amendment process renders the present beholden to the past. While the Framers revolutionized politics at the time, many of their ideas now seem antiquated, or at least in need of an update. We should not hold contemporary politics hostage to the wills of our ancestors. Defenders of Article V typically point to its ability to protect the minority from the tyranny of the majority, but what if that minority has been in the grave for a hundred years? If hundred-year-old corpses can overrule the overwhelming will of the people, democracy has given way to a tyranny of the ancestry.

Making the amendment process easier does not have to come at the expense of minority groups who still live and breath. I would propose simply eliminating the requirement that the states agree to new amendments; a national supermajority should be sufficient. The current system aims to prevent a small majority of states from inflicting their will on the minority by demanding that three quarters of the states agree to any proposed changes. But the Senate already accomplishes precisely this goal. Since each state enjoys equal representation in the Senate, the upper house serves as a national proxy for the state-by-state voting. My proposal would preserve the Senate’s role in the amendment process, ensuring the protection of minority states’ rights.

State legislatures may actually be a far less meaningful check on the tyranny of the majority than Senators. Due to pervasive gerrymandering, both parties have constructed artificial majorities in various state legislatures across the country. States’ delegations to the national Congress tend to be more representative of the population than state legislatures. Instead of protecting the citizens living in minority states, artificial majorities in state legislatures can veto amendments supported by their constituents and voted for at the national level.

This worry is not hypothetical. State legislators in Alabama, Arkansas, Florida, Georgia, Oklahoma, Louisiana, Missouri, South Carolina, and Virginia rejected the Equal Rights Amendment, which would have guaranteed equal rights for women, even though neither senator from any of those states did the same. States legislatures also quashed the Congressionally approved DC Voting Rights Amendment, which would have granted DC full representation in Congress and the Electoral College.

A nationally focused system would also not be particularly vulnerable to partisan waves. Almost never in American history has a single party gained a two third majority in both the House and Senate. Absent a seismic shift in American politics, such a majority would be unthinkable in the present day. This natural check makes it highly unlikely that any amendments could be passed solely along party lines. Only amendments with some bipartisan appeal, and vast popular appeal, could become law.

A final, and reasonable, concern holds that certain rights should not be subject to democratic decision-making at all. No majority, no matter how large, has the right to take away the inalienable rights of any minority, even a single individual. To accommodate these concerns, I would support preserving the onerous process currently in place for an amendment seeking to alter or repeal any of the fundamental freedoms found in the Bill of Rights.

[su_pullquote align=”right”]Improving the amendment system is necessary to better our democracy but, tragically, requires an amendment of its own.[/su_pullquote]Holding the rest of the Constitution to the same standard, however, makes little sense. The Constitution contains a host of practical formulations and decrees about the basic structure of government that should be subject to the democratic process, just like the rest of our laws. The current system makes that nearly impossible. Improving the amendment system is necessary to better our democracy but, tragically, requires an amendment of its own.

Connor Warshauer ‘21 studies in the College of Arts & Sciences. He can be reached at cwarshauer@wustl.edu.