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because it exceeded the time limit set out in the original bill and because several states that approved it later rescinded their ratification.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.