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Is It Too Hard To Amend The Constitution?

University of Texas Law Professor Sanford Levinson calls the Constitution “imbecilic” in the way it makes the document difficult to amend:

If one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.

It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.

No such debate is likely to take place between Barack Obama and Mitt Romney. They, like most contemporary Americans, have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well. Instead, the Constitution is enveloped in near religious veneration. (Indeed, Mormon theology treats it as God-given.)

Levinson is certainly correct that it’s difficult to amend the Constitution. After all, in order to do so, you need to get the agreement of 290 members of the House of Representatives, 67 Senators, and both Houses of the State Legislatures of 38 states. Given how closely divided this country is on even the seemingly simplest issues, the odds of getting that kind of agreement with the seven year time limit that every Amendment submitted to Congress since the 1970s has contained are fairly low. Indeed, this is why it has been forty-two years since a Constitutional Amendment was ratified by both Houses of Congress and by a sufficient number of states.1  In fact the gap between the adoption of the 26th Amendment and today is the third-longest such period in American history, the longest being the 61 years between the ratification of the 12th Amendment and the ratification of the 13th Amendment, and the second-longest being the 43 years that elapsed between the 15th Amendment and the 16th Amendment. So, yes, Levinson is correct that it is hard to amend the Constitution.

The one thing Levinson doesn’t do, though, is make a cogent argument for why this is a bad thing, in fact it really doesn’t make any argument in that regard at all.  Instead, he points out the fact that nearly all of the 50 State Constitutions are far easier to amend than the Federal Constitution, most typically by some form of legislative vote followed by a referendum. This is true, but it doesn’t really answer the question of why Article V, which allows for Amendment either via the process described above or via a Constitutional Convention called by two-thirds of the states, is somehow defective or needs to be changed.

It’s too bad, really, because I would have enjoyed hearing an argument from Levinson’s point of view on this issue. I likely would’ve disagreed with it, but one does not benefit from not exposing oneself to opposing points of view. As it stands, I cannot see any reason why it should be easier to change the fundamental building blocks of our political system. Making it easier for a majority, or a smaller supermajority, to change the rules of the game means that the minority’s rights would likely not be sufficiently protected and, considering the fact that there are plenty of people out there who would love to amend the Constitution to limit the rights of one minority group or another, that isn’t a good thing at all. One need only look at the ease with which a movement motivated mostly by mass hysteria was able convince the American people to amend the Constitution to ban alcohol to see the dangers that would be created by making such amendments easier to accomplish. Indeed, the very State Constitutions that Levinson points to as a guide are also a reason for caution given the ease with which nearly two-thirds of the states have amended their Constitutions via majority will to deny equal protection of the laws to people merely because they are homosexuals.

The Founders made it hard to amend the Constitution for a very specific reason, because the changes that could be potentially made via amendment could be so fundamental that it ought to be the case that whatever change is desired is supported by a large majority of the people. I don’t really see any reason to change that.

1 The Twenty-Seventh Amendment was ratified in 1992 but it had first been sent to the states in 1791 along with the other Amendments that became the Bill Of Rights. Since there was no time limit on ratification at the time, the final ratification of the 38th state in 1992 was sufficient to make it part of the Constitution. Indeed there are several other Amendments that were passed by Congress and sent to the States but never ratified that are, technically at least, still alive.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Marla Hughes says:

    Probably one of the first times I have agreed with at least most of an article you’ve written. Good job. I won’t quibble on the small stuff since you got the Constitutional part right. :-)

    [Edited to remove errant HTML tag, no content changed -- DM]

    Like or Dislike: Thumb up 1 Thumb down 2

  2. Michael says:

    Thank god it is hard to amend….or the Democrats who be amending the U.S. into a dictatorship.

    Like or Dislike: Thumb up 3 Thumb down 16

  3. Jenos Idanian says:

    Let me toss out a theory on the unaddressed “why” question: ObamaCare.

    This is all preparation in case ObamaCare is ruled unconstitutional. At that point, they can vow to amend the Constitution to make it legal, rally their troops, and raise tons of money — a lot of which will only be tangentially related towards an Amendment, but to boost other causes and pay off allies.

    Just a hunch, nothing to back it up, but I think it’s worth considering.

    Like or Dislike: Thumb up 3 Thumb down 13

  4. Hey Norm says:

    @ Michael…

    “…the Democrats who be amending the U.S. into a dictatorship…”

    What is that fantasy based on?

    Like or Dislike: Thumb up 8 Thumb down 4

  5. Al says:

    California’s Constitution is really easy to amend and as a result it is the third longest in the world. We’ve written bigotry into it and we’ve made about three quarters of our total budget non-discretionary. Even with proposition 13 (which New Jersey has graciously demonstrated is not the source of California’s financial woes) it’s a pretty good counter argument.

    Like or Dislike: Thumb up 7 Thumb down 0

  6. BTD says:

    Levinson wrote a book about it. Hard to get it all in to a Times Op Ed piece.

    Like or Dislike: Thumb up 2 Thumb down 0

  7. Ron Beasley says:

    The Oregon constitution is really easy to amend. Fifty one percent of both houses and the Governor can send it to the people. As a result it is now used to do things the legislature should do but can’t. It takes two thirds of both houses to pass a tax increase but it can be done as a constitutional amendment with 51 percent of both houses and the voters.

    Like or Dislike: Thumb up 7 Thumb down 0

  8. Vast Variety says:

    If anyone needs a good lessen in why making it easy to amend the consitution is a bad thing I would like to submit California as evidence.

    Like or Dislike: Thumb up 9 Thumb down 0

  9. Hey Norm says:

    Got to agree with Doug on this.
    Just look at the Balanced Budget Amendment for example. What if it was easy to pass something like that? We have had a balanced budget 13 of the last 83 years. But some ill-informed ideologues would make it law if given a chance. The result would be catastrophic.
    The Founders were Elites…and they did their best to protect us from idiots.

    Like or Dislike: Thumb up 6 Thumb down 0

  10. Eric the OTB Lurker says:

    @Jenos Idanian:

    Yes, Jenos, I totally agree. Those nefarious liberals will rally two-thirds of the House, three-quarters of the Senate, and 38 bicameral legislatures to totally ram Obamacare down the American majority’s throat… … … Oh, wait, that is a majority Amending the Constitution.

    Well, ramming it down the minority’s throat, anyway, right?

    Like or Dislike: Thumb up 8 Thumb down 0

  11. Did the Founding Fathers make it too hard to amend the Constitution? No, they didn’t.

    Actually, I am going to say yes, they did (but don’t have a lot of time to go into it at the moment).

    We have one of the most difficult to amend constitutions in the world and it makes adaptation problematic. It should be hard to amend a constitution, but not nearly impossible (which is the case with ours).

    It is worth noting that we have really only amended it 17 times as a normal course of governing, and 3 of those took the Civil War.

    Like or Dislike: Thumb up 4 Thumb down 0

  12. Great article, Doug! If you like conservative analysis and philosophy on a wide spectrum of issues, visit our page at sophistopia.com. I’m a former IMF economist and I would like to expose the impracticality and danger of liberalism to the U.S. public before the 2012 election. Check us out, and pass our page along if you like what you see!

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    Visit sophistopia.com for more.

    Like or Dislike: Thumb up 0 Thumb down 11

  13. PD Shaw says:

    1. I think the Constitution is somewhat too difficult to amend, given the size of the country and partisanship.

    2. Some of the historic complaints that Levinson alludes to are the result of judicial decisions that were either unpopular at the time or in retrospect or just based upon one’s p.o.v. Question whether the problem is the difficulty in amendment, or in judicial decisions that frustrate popular demands. Unlike most other democracies, the U.S. has strong judicial review.

    3. The U.S. Constitution is described by some as a common-law Constitution, so its not supposed to direct the outcome of every public policy issues, just loosely provide the framework for the dispute and the guiding principles. It looks different than, for example, the French Constitution. Its conceptually difficult to amend such a Constitution, and we should avoid it if possible.

    I would support an amendment that lowered the numbers to a majority of both Houses and state legislatures, but I still think amendment should be rare.

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  14. PD Shaw says:

    I should add that I think a false metric is being proposed, if the original Constitution is written with some permanency, i.e. not determining the outcomes of future policy disputes, then it should not need to be amended frequently. It certainly does not need to be amended as frequently as a more directive constitution.

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  15. Tsar Nicholas says:

    Good blog post.

    A federal Constitution that’s too difficult to amend presents serious problems, yes, but those pale in comparison to the reverse scenario, if the federal document was too easy to amend. Regarding the invididual states, however, those are horses of entirely different colors and, quite frankly, it’s not surprising that a law professor such as Levinson can’t see those dichotomies, for the simple reason that law professors generally speaking effectively are brain dead.

    @Hey Norm: Catastrophic? Well, yeah, for government workers and their ability to suck off the public’s teat. P.S. — In that single comment you engaged both in self-parody and what the DSM defines as projection. Congrats.

    @Vast Variety: FYI, you wouldn’t want to own property in California and have to pay real estate taxes if it weren’t for Prop. 13. You do own property and pay real estate taxes, don’t you?

    Besides that salutary amendment there have been in California several exemplary referendum-based constitutional amendments over the past couple of decades, most notably Prop. 187 and Prop. 209. Although obviously if you’re a liberal, especially of the airheaded variety, then you’d have an opposite viewpoint of those items and of many other examples in California of conservatism as public law and policy. I do appreciate that.

    Like or Dislike: Thumb up 1 Thumb down 4

  16. al-Ameda says:

    Levinson seems to have a lot of faith in majority rule. We already let the states deny equal protection under the law to gay and lesbian people, why would it be a great idea to liberalize the Constitutional Amendment Process to permit the people to approve the inclusion of discriminatory amendments into the Constitution?

    Instead, he points out the fact that nearly all of the 50 State Constitutions are far easier to amend than the Federal Constitution, most typically by some form of legislative vote followed by a referendum.

    Great … check with the State of California to see just how well the voters (the people) have done in amending the California State Constitution.

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  17. Hey Norm says:

    Tsar pulls out the Government workers meme…a favorite of the wing-nuts like Tsar.
    It’s good to be predictable.

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  18. Hey Norm says:

    And one-dimensional.

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  19. Jenos Idanian says:

    @Eric the OTB Lurker: Did you see the part where I said that they’d succeed in getting the Amendment passed?

    Let me spell out what I inferred: they will use a push for an Amendment as a fundraiser and rallying point, use that to push other matters and pay off their cronies, and then quietly let it die away unratified.

    Kind of like how the right has used the Right To Life amendment, come to think of it…

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  20. grumpy realist says:

    @Tsar Nicholas: Glad to see how little you think of the government workers at places like the USPTO, DOD, NIST, and NASA. After all, they’re all just “sucking off the government’s teat.”

    So I guess you want to get rid of patents and trademarks, the military, the national bureau of standards, and space development in the US. I’m sure China will be very happy with you.

    (Seriously, do you even think before you type?!)

    Like or Dislike: Thumb up 1 Thumb down 0

  21. mattb says:

    @Jenos Idanian:

    Kind of like how the right has used the Right To Life amendment, come to think of it…

    And the recent pledge that Romney signed (along with other GOP presidential hopefuls) to push for an Amendment to the Constitution defining Marriage as between a man and a woman.

    Promises to push for Constitutional Amendments (balanced budget begin one that keeps popping up on both sides) in order to rally the base and raise money has been a pretty common tactic for quite a while.

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  22. DRE says:

    @Tsar Nicholas:
    @Vast Variety: FYI, you wouldn’t want to own property in California and have to pay real estate taxes if it weren’t for Prop. 13. You do own property and pay real estate taxes, don’t you?

    I own property and pay real estate taxes in California. Because of Prop 13, my property tax is based on a value that is literally 10 times as high as my neighbors on either side, both of whom have larger lots and larger houses. On the other hand a neighbor across the street, with a smaller lot and much smaller house is taxed based on a value that is twice what mine is, because he bought 5 years after I did, and I bought 12 years after my neighbors. And this wonderful system is part of the state Constitution. And anyone who has had to live through many elections here knows, all you have to do to amend the Constitution is raise a ridiculous amount of money, and be a better liar (or trivializer) than your opponent when it comes to making ads about what the amendment would do.

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  23. Bill Walker says:

    One of the reasons the Constitution is so “hard” to amend is the fact Congress refuses to obey the Constitution and call an Article V Convention when the applications of the states require it to do so. By one estimate at least eight conventions should have been held since the states first reached the two thirds mark required by the Constitution in 1911. The number of states now applying is now 49 with a total of 748 applications. These can be read at http://www.foavc.org. In all the states now have 34 issues including three which have so much state support they would not only cause a convention call on their own numbers, but in one case, repeal of income tax, been ratified if the Constitution were obeyed.

    So actually it is not as “hard” as one assumes if you are in full possession of all the facts. Indeed, given the issues before a convention today, it is safe to say that between four to eight issues have a fair chance of becoming amendments IF Congress is forced to do what the Constitution demands: call a convention. When both methods of amendment proposal are in play, the Constitution is no more difficult to amend than any other constitution but when Congress loads the deck by refusing to follow the rules then of course only a few amendments will pass. The problem is, we can’t rely on Congress anymore to solve the problem because in most cases, Congress is the problem.

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