It’s Hard To Amend The Constitution; It Should Be

As progressives continue to lament the likelihood that the Supreme Court will not serve their cause of reinventing the Constitution via lawfare to accomplish what they have proven unable to do because Congress is paralyzed and people in America don’t want to live in their woke Utopia, a new front has opened on the Great Awokening.

The 26th Amendment to the Constitution took effect 50 years ago this summer, extending the right to vote to all Americans age 18 and older. It was the fourth amendment in the span of a decade, three of which expanded voting rights — a burst of democratic reform nearly unequaled in the nation’s history.

This half-century drought is all the more distressing in a time of intense social and political turmoil, with demands from both the left and the right for large-scale reforms of the American system of government. Overturning the Supreme Court’s ruling in Citizens United, mandating a balanced budget, establishing a positive right to vote, banning the burning of the American flag? Forget it.

There are a lot of people who are absolutely certain that the Constitution is literally horrible and must be changed. But it’s hard, so very, very hard.

None of these frequently proposed amendments has anywhere near the level of support needed to clear the hurdles set out in the Constitution: a two-thirds vote in both the House and the Senate, followed by approval in at least three-quarters of the states, which today is 38. Sometimes even that isn’t enough. The Equal Rights Amendment, which would ban discrimination on the basis of sex, passed Congress in the early 1970s and picked up its 38th state last year. Yet it will probably never be adopted because it exceeded the time limit set out in the original bill and because several states that approved it later rescinded their ratification.

Jesse Wegman argues that the founding fathers expected us to change the Constitution all the time, and that changing it was as much a point of the Constitution as respecting what it said in the first place.

This paltry record would have surprised the nation’s founders, who knew the Constitution they had created was imperfect and who assumed that future generations would fix their mistakes and regularly adapt the document to changing times.

Of course, the Constitution provides for its amendment, which has been used when there was sufficient support for such a fundamental shift in the paradigm that Congress and the states could reach consensus. That the founders expected it to be “regularly” adopted to “changing times” is a bit aspirational. No nation can function when the basic rules of the road are in perpetual motion. What’s lawful and proper today can’t change tomorrow, and change back again next week, or people will be incapable of choosing how to conduct their affairs with sufficient reliance that it won’t be “out” the next time hemlines go up.

What the founders failed to anticipate was the rapid rise of national political parties, which took shape even before George Washington left office and made it difficult if not impossible for the people to come together as a whole in support of major systemic reforms.

To be fair, even with the rise of national parties, amendments to the Constitution were possible, albeit difficult, for most of this country’s existence. But Jesse gives away the tacit part of his argument in the end of the sentence, “major systemic reforms.” Do we want such “reforms”? Are they “reforms,” or are they a wishlist of the moment that would create massive upheaval without any sound basis to believe that it would improve our lot as a nation.

If the Constitution could be readily amended, would the Second Amendment be gone? Would the First Amendment include an exception for “hate speech”? Would the Fifth Amendment exclude sex offense from the privilege against self-incrimination? Would abortion be an express constitutional right, until it wasn’t, until it was again, and wasn’t again? Would the Equal Protection Clause morph into the Equity Protection Clause?

In a companion piece, the New York Times includes a short list of constitutional changes proposed by various academics. Are they changes that a vast majority of Americans would support after being fully and honestly vetted for both their purpose and the seen and unforeseen consequences of a paradigm shift?

The Constitution is hard to change, and thankfully so. Jesse uses the failed Equal Rights Amendment as an example of what’s wrong with the amendment process, but he fails to grasp how it demonstrates what’s wrong with his argument. Had the ERA been enacted, it might well have precluded any accommodations being made to address discrimination against  transgender, and quite possibly even gay, people. Or perhaps it would start a tidal wave of similar “rights” amendments for each group claiming marginalized status, which would then create an impossible conflict since dominant rights are a zero-sum game.

The outcome would likely not have been as problematic back in the 1970s, when the ERA was proposed, as it would be today. Back then, nobody was concerned with transgender people, and everybody understood sex to mean male and female, recognizing that the anomalies were just that, anomalies, and the tail didn’t wag the dog. Had we enacted it then, would its meaning have completely changed as the word “sex” was reimagined to mean something entirely different than what it meant when the ERA was enacted?

Our Constitution, for all its imperfections, is a glorious document as it has managed to sustain a fledgling nation for longer than any other constitutional republic existed. Even its “imperfections” are a dubious characterization, as they’re only imperfect to those who don’t care much for the rights they protect for other people. Each of us would probably have changes we believe would improve the Constitution, based on our policy preferences and what we believe to be a societal good. And we’re not all that thrilled with other people’s ideas of what should be changed.

That’s the point, that when we can reach the extreme level of agreement that the most fundamental law of the land should be changed, the Constitution provides the mechanism to do so. Contrary to Jesse’s complaint, when a nation is so deeply polarized that it can’t reach consensus, that’s exactly when no change should be made. Yes, it’s hard to amend the Constitution. If it weren’t, the Constitution would be a disaster and our ability to function as a nation would prove impossible. Thankfully, the founders protected us from ourselves by making change so difficult that it didn’t blow with the winds of transitory public sentiment. That’s the point.

 

13 thoughts on “It’s Hard To Amend The Constitution; It Should Be

  1. Kurt

    Congress not able to pass along bills to be signed by the President, or not able to override a veto?

    Same, same – Works As Designed

    Kurt

  2. Charles

    Maybe Alabama would be more to his liking?

    As stated in the easily-amended Wikipedia: “It was adopted in 1901 and is Alabama’s sixth constitution. At 310,296 words, the document is 12 times longer than the average state constitution, 44 times longer than the U.S. Constitution, and is the longest and most amended constitution still operative anywhere in the world.”

  3. Rengit

    Jesse’s argument even, in some respects, fails on his own terms. He mentions that three of the four amendments to the Constitutions passed during the civil rights era expanded voting rights and the democratic process. No more poll taxes. No more literacy tests. Many at the age of high school seniors and the vast majority of college freshmen have the constitutional right to vote. Plus the Voting Rights Act and the cases flowing from Baker vs. Carr. We’ve had precisely one amendment in the 50 years since then, and it was the political equivalent of a lay-up with the other team’s players all at the other end of the court: the only people who wouldn’t have been for the 27th Amendment were members of Congress.

    Maybe making sure every voice is heard at the ballot box, which Jesse celebrates, makes it a lot harder to build the level of supermajority consensus across Congress and the states necessary to amend the Constitution.

  4. Kirk A Taylor

    All one needs to do is look at states where constitutional changes are easy to see how they make it too easy for one side to impose their will on the other side. Sure, one group is ecstatic but eventually the shoe will be on the other foot…often as a direct result of anger over the changes…

    Then we just seesaw back and forth with zero certainty about anything…tyranny of the majority.

  5. rxc

    The EU tried to get approval for a Constitution that the Progressives would prefer, with all the positive rights listed explicitly, and all the nasty things specifically prohibited, or at least allowed to be prohibited as they emerged. Unfortunately, it failed to receive referendum approval from the French and Dutch, who voted against it. (The Irish initially voted against it, but were convinced to vote again, and GET IT RIGHT THIS TIME). So the EC turned it into a treaty, which did not require a referendum.

    I think that the Progressives want to do something similar, with the Presidential Election Pact. If that works out, they might be tempted to try some other “improvements”. They are very clever and persistent.

  6. Anthony Kehoe

    Two of the things I appreciate most about the US Constitution is how clear and concise it is. Ireland’s “pocket” constitution comes in a book with 235 pages (including index, no notes). The UK doesn’t have one since Parliament is Supreme and none is required. The Pocket Constitution I got when I had my swearing ceremony was 45 pages, with index. But the two that are directly relevant to your piece are Canada and Australia. They get around that “hard to change” bit by making “rights” subject to law. This means the right can be constrained or expanded by simple application of legislation.

    Take a look at the US First Amendment and the similar entries for other countries. It’ll be a rather laborious exercise in the latter.

    I suspect if our Constitution were that easy to amend we would all be in trouble.

    1. Rengit

      Section 33 of the Canadian Charter of Rights and Freedoms, the “notwithstanding clause.” As far as I can tell, it means both the provincial and parliamentary legislatures can override the rights enshrined in the Charter at will, including explicitly rejecting judicial decisions. Which as you point out is in broad comportment with the English doctrine of parliamentary supremacy. That doesn’t seem like much of a guarantee of rights. But that reflects why Canada and the US are different countries.

    2. SHG Post author

      Americans love it when other countries can do things, like criminalize speech, they don’t like and hate it when they can do things, like criminalize speech, they do. And yet, they fail to grasp why this could present a problem.

      1. DaveL

        The right miss the point may be the most time-honored and cherished of all unenumerated rights in America.

  7. JorgXMcKie

    “Jesse Wegman argues that the founding fathers expected us to change the Constitution all the time”. After many years of teaching American government, about the only thing I believe I can accurately say about the thought or expctations of the Founders is that they really, really disliked the idea of rule by small, temporary majorities. Pehaps they disliked that even more than oppresive monarchy, but I’m not sure on that one.

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