This Is Why It’s Good That It’s Hard To Amend The Constitution

A new poll shows that Americans have some odd ideas about the Constitution, and how to change it.

A poll conducted in connection with the recently concluded Aspen Institute conference shows that Americans have some rather alarming ideas about what should be done with the Constitution:

By a margin of 6 to 1 (61 to 10 percent) Americans believe that the Constitution should safeguard even more rights, and name gender equality as the right most deserving of constitutional protection. Majorities support guarantees of equality, of the right to privacy, of the right to own property and even the right to an education. 55 percent support the right to equality regardless of sexual orientation while 47 percent thinks the right to healthcare should be constitutionally protected as well.

(…)

When it comes to fixing to the system, voters zero in on the judiciary branch as most ripe for extensive changes. 69 percent call for a mandatory retirement age for Supreme Court justices and 66 percent favor term limits. Most significantly, by a margin of 51 to 34 the public favors popular election of Supreme Court justices, which follows the recent trend in some states that have chosen to elect their top justices. It is the most dramatic change to the system that the poll respondents favor.

74 percent agree it is time to abolish the Electoral College and have direct popular vote for the president. The public also favors by 49 to 41 holding national referenda for constitutional amendments.

As Matthew Yglesias notes, the idea of electing Supreme Court Justices is simply a horrible one. If there is one institution that should be insulated from the will of the majority as much as possible, it’s the Judiciary, and the the experience of states that do popularly elect Judges (as well as the political circus that breaks out each time there’s a Supreme Court nomination) makes it clear that such a system would be an utter disaster at the national level. As for the retirement age and term limits ideas, they do have merit but the lifetime tenure that the Founders put in the Constitution is in there for a reason; not only to shield judges from political pressure, but also to provide for a measure of consistency in the law. In the grand scheme of things, I don’t think that lifetime tenure imposes sufficient costs to be done away with.

As for elimination of the Electoral College, the primary result of that “reform” would be that Presidential candidates would concentrate their campaigns in high population states like Texas, California, Florida, and New York and ignore smaller states and smaller venues. Moreover, direct popular election would potentially make election outcomes less certain by nationalizing vote-count errors and fraud allegations. In a close election, the fate of the Presidency could be in doubt for months, and while we may have been able to afford that luxury in 1800, we can’t afford it today.

Instead of eliminating the Electoral College, it would be far preferable to reform it by adopting the District Method:

This method divides electoral votes by district, allocating one vote to each district and using the remaining two as a bonus for the statewide popular vote winner. This method of distribution has been used in Maine since 1972 and Nebraska since 1996, though neither state has had a statewide winner that has not swept all of the Congressional districts as well. Consequently, neither state has ever spilt its electoral votes.

Though I personally don’t think that the current Presidential election system is as bad as people make it out to be, the District method not only makes sense, but would also make Presidential elections more of a nationwide phenomenon than they are today. Rather than ignoring a state entirely because it so heavily favors their opponent, candidates would have an incentive to concentrate on areas of the state where they would be able to win one, or more, Congressional Districts and thus pick up an Electoral Vote or two that could make the difference in the election.

And the final idea, amending the Constitution by national referendum, is perhaps the most misguided idea of all. The Founders made the Constitution difficult to amend for a reason, and most of them can be found in the results of this poll and the desires of a majority of respondents to make things like education and health care a Constitutional “right.”

FILED UNDER: Government, Law and the Courts, Public Opinion Polls, US Politics,
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. grampagravy says:

    The 18th amendment could be used to support the notion that amending the Constitution is all too easy for a minority group, with sufficient dedication and willingness to form useful alliances, to achieve. Frankly, I don’t want people who don’t know how to use an ATM card or can’t remember how many houses they own, or who are against a moratorium but for a “pause” to have any more influence on the law of the land than the already disastrous influence they currently have. How about a freeze on the Constitution and a moratorium (that’s “pause” to you Congressman Boehner) until we figure out how to get public minded mental heavy-weights into the seats now occupied by the antithesis of same.

  2. grampagravy says:

    The last sentence should be …freeze on the Constitution and a moratorium on amendments etc.

  3. Doug,

    I believe Maine did split its district votes in 2008, the first time that ever happened. I’ve written about this very issue here.

  4. Pete says:

    Hey Grampagravy, how about passing the Fair Tax and taking away the leverage those congress critters have through working the income tax?

  5. Doug,

    I should add that in that link I provided, Steven did a good job of defending the idea of a popular national vote, so much so that I’m kind of on the fence at the moment.

  6. steve says:

    ” In the grand scheme of things, I don’t think that lifetime tenure imposes sufficient costs to be done away with.”

    The price has become way too high. We get judges with limited experience since they must be young as they will serve for a long time. We also have a history of judges serving past their mental prime. Make it a 10-12 year appointment.

    Steve

  7. As for elimination of the Electoral College, the primary result of that “reform” would be that Presidential candidates would concentrate their campaigns in high population states like Texas, California, Florida, and New York and ignore smaller states and smaller venue

    This is not true (sorry, this is one of my pet peeves).

    First: at the moment candidates routinely ignore large population states like CA, TX and NY because they know from the get-go what the probability is in terms of which way the state will go. As a result, Rep voters in CA are basically unimportant as are Dems in Texas (Florida, of course, is another story).

    Second: smaller states are pretty routinely ignored now.

    So, what we currently have is a system that encourages most campaigning to a relatively narrow band of potential swing states with token campaigning elsewhere.

    If candidates actually had to maximize their votes nationally,the incentives would be to go where ever those pockets of votes are, not ignore such voters because the state is almost certainly going to go Red or Blue no matter what.

    (and I see, after quickly going to write this comment that Robert already noted a previous rant of mine on the topic 🙂

  8. Steven,

    I’m on the fence, but still not quite convinced. If the district method were used it would eliminate many of the current weaknesses, like having only a few states even competitive, and would still provide a real incentive to address less populated areas. Also, the neighborhood effects of, say, a Republican presidential candidate campaigning in a California Republican’s congressional district would work against regionalization.

    It might also bring the party to a more moderate position on issues, or have it organize around a more widely accepted theme, such as limited government. Right now, with the party so focused on the South, it focuses on social conservatives often to the dismay of western conservatives who are more of the rugged individualist types.

    Also, I tend to view the whole issue of electoral reform as a multiple issues. There are too few representatives for a country as large as ours. There are additional benefits to instant runoff voting, etc.

  9. Sarah says:
  10. Steven,

    I forgot to mention the advantage of localizing recounts. That is a clear benefit of using the district method.

    Having said that, I would be fine with a national popular vote especially if it included IRV.

  11. Sarah,

    My mistake, I thought it was Maine.

  12. @Robert: a quick response: think about how many gerrymandered safe districts are out there and consider the degree to which you are taking the problem I am describing and moving it to smaller units in many, many cases.

    It also strikes me that the best way to produce candidates who have to present truly nationally-oriented platforms is to make them have to actually run truly national campaigns.

  13. john personna says:

    Majorities support guarantees of equality, of the right to privacy, of the right to own property and even the right to an education. 55 percent support the right to equality regardless of sexual orientation while 47 percent thinks the right to healthcare should be constitutionally protected as well.

    What are we, a bunch of Swedes?

  14. John,

    Nice snark. This is why I would never favor a constitutional convention. Some of those are OK, but the “right” to healthcare or education? Those are both scarce resources and it completely escapes me how one might have a right to those, absent a contract. As a matter of policy it might be better to expand access to those things, but there’s no such right that I’m aware of without defining the notion of rights down.

  15. john personna says:

    I suppose if we were a bunch of Swedes we’d be 78% in favor, or something.

    (And our smaller numbers could include people who are merely supporting k-12 education, and access to health care.)

  16. john,

    I’m quite in favor of expanding access to both, it just makes me nauseous thinking of it in terms of rights.

  17. floyd says:

    With all the corruption in the last couple of elections , along with reforms designed to corrupt the system further [like mail in voting and motor voting] , The ideas above are as harmless as beating a dead horse. Too bad for those who would wish to have insults heard post injury .

  18. floyd,

    What corruption the last couple of elections? Obama beat McCain fair and square and Bush beat Kerry as well. There were allegations out of Ohio in 2004, but they didn’t amount to much and I’ve heard no allegations about Obama in 2008.

    Also, there’s nothing inherently corrupt in voting via absentee ballot and I’ve heard no problems with motor voter. Where do you get your information?

  19. grampagravy says:

    Remember that “Life, Liberty, and the pursuit of Happiness” stuff? Some, or all of the preceding can be denied to those whom misfortune, illness, or accident of birth places in economic circumstances that won’t provide for our much vaunted, over-priced health care that nets us an average life-span lower than 36 other countries who spend less per person on the entire enterprise. That makes me nauseous.

  20. grampa,

    What kind of a “right” would it be if it’s not available? Policy-wise it’s desirable to expand access and perhaps even have a single payer system, but that still wouldn’t make it a right, simply good policy.

  21. BTW, “life, liberty and the pursuit of happiness” doesn’t guarantee anyone happiness, only the freedom to pursue it. Also, since it’s in the Declaration it doesn’t have legal weight anyway.

  22. tom p says:

    Robert:

    ***Some of those are OK, but the “right” to healthcare or education? Those are both scarce resources and it completely escapes me how one might have a right to those, absent a contract.***

    In Spain, they have a right to health care, and it IS via a “contract”… namely their constitution. Not sure about the rest, but it sure worked for my in-laws.

    I always wonder about those who are worried about the “rationing” of health care. I always want to say: It ALREADY IS rationed…. You got the money? You got the health care. (I waited a long time to hear A Sullivan admit this… he finally did)

    The funny thing is, even with the rising cost of health care, nobody thinks it will happen to them.

    Sheep. No, worse than that, STUPID sheep.

  23. tom p says:

    And Robert: by “stupid sheep” I don’t mean you…. unless you think it will NEVER happen to you.

  24. John C says:

    Keep the Electoral College.
    Put Senate selection back in the hands of the States.
    Give voters 5 votes for an at-large national election for the House. (Cumulative voting)

    DC residents get to vote for the House just like everyone else.
    Gays in Kansas can vote (at least once) for the gay candidate.
    Gun owning Chicago residents can vote for the NRA candidate.
    Maybe a 3rd party candidate would actually succeed. (Besides Bernie Sanders.)

  25. Put Senate selection back in the hands of the State

    This one, I must confess, always vexes me insofar as it treats the states as if they are some creature independent of the citizens living in them. Currently the citizens living within those lines on the map select their Senators. As such, how is that not having the Senate in the hands of the states?

  26. tom p.

    I don’t want to get too hung up on language, but I’ll just state what I’m thinking and you can make of it what you will.

    I’m a negative rights kind of guy. For instance, I have a right to not be assaulted and there’s no shortage of this. If someone violates my right, they can be taken to court and put in prison. Now, with regard to a “right” to healthcare, there could very well be a shortage. It could be a lack of doctors. If you need hospital care and there aren’t enough doctors, what sort of “right” do you have?

    Now, the way statists usually handle this is by redefining rights, namely they call it a right to equal access, etc. That doesn’t make it a right. BTW, your use of the word contract is rather loose.

    As I said before, for policy reasons it’s desirable to increase access to health care, and that might even mean single payer (as long as it’s implemented well), but it doesn’t mean anyone has a right to anything.

  27. floyd says:

    Robert;
    If you didn’t notice 2008 Illinois, Minnesota, Ohio or Oregon just for example, then you could be blinded by your bias, or simply not paying attention.Nothing I might say would have impact in that case.
    I didn’t mention “Absentee” voting by the way , I was talking about mail-in ballots. It is simply impossible not to see the potential for fraud and corruption there! So much so that no further comment need be mentioned.
    As for Motor Voter… It is only for those incapable of finding the registrar, Advantage Democrat.
    Those were just examples, a few among many, how about the recent cases of voter intimidation which were willfully ignored , and therefore encouraged, by the present administration after charges were brought?
    My point is not partisan…. if corruption is allowed to continue to expand without response, the ramifications are enormous, even for those who initially benefit.

  28. floyd says:

    tom p;
    Did you mean to say that instead of being denied healthcare for finacial reasons, it would be more fair to be denied due to bureaucratic fiat.
    Seriously, if the government can’t regulate the insurance companies, where is their competence to RUN the system? So far all they have managed to do is allow a game of insurance tyranny unchecked. How about just fix the system we have instead of scrapping it at the cost of the last vestige of personal control?

  29. steve says:

    “Did you mean to say that instead of being denied healthcare for finacial reasons, it would be more fair to be denied due to bureaucratic fiat.”

    Except that this is not what happens. Medicare seldom denies care. It spends too much, not too little.

    Steve

  30. grampagravy says:

    @Robert Prather
    “BTW, “life, liberty and the pursuit of happiness” doesn’t guarantee anyone happiness… .”

    Look back, I never said it did.

    “Also, since it’s in the Declaration it doesn’t have legal weight anyway.”

    I also never stated that The Declaration of Independence was a Bill of Rights, or that it carried “legal weight,” but I would argue that the words I used from it were intended to be, and should be, guiding principles when considering issues that affect quality of life.

  31. André Kenji says:

    Brazil has a mandatory retirement age of 70 for it´s Justices. The result is that almost all Justices were appointed by the current president. And there is no Electoral College here, so with two exceptions, all the major presidential candidates since 1989 came from one state, São Paulo.

    But, distributing the votes by gerrymandered districts would not be so much better. Why not proportional distribution of the votes by state?

  32. sam says:

    floyd, you case would be much stronger if you would supply citations (you know, linky things), which is what Robert asked for, really “(Where do you get your information?”). Or you look like you’re just making shit up.

  33. Brummagem Joe says:

    I love to quote H. L. Mencken because he got so right. No one ever went broke underestimating the stupidity of the American people. Fortunately the founding fathers were well aware of this propensity and took steps to guard against it.

  34. Brummagem Joe says:

    floyd says:
    .
    “Seriously, if the government can’t regulate the insurance companies, where is their competence to RUN the system? So far all they have managed to do is allow a game of insurance tyranny unchecked.”

    One wonders if you’re familiar with the practice of lobbying and campaign contributions.

  35. floyd says:

    Joe;
    Only one? How pretentious.

  36. floyd says:

    Sam;
    Thanks for the humorous interjection.
    Considering the excrement that can be had with those “linky things”, even credible ones would hardly garner any perception of credibility to the “made up” minds which are the “feces du jour” here, and the verity of information is irrelevant to those.
    I simply stated that which was widespread news for years in plain view.
    My credibility here is not questioned by anyone possessing any of greater substance.

  37. Trumwill says:

    This one, I must confess, always vexes me insofar as it treats the states as if they are some creature independent of the citizens living in them.

    Would it clarify things if people were to say “state government” instead of state? Seems pretty obvious to me that’s what they mean. The state’s elected government is a creature independent of the citizens of the state. That was why they were given the senators in the first place.

  38. Would it clarify things if people were to say “state government” instead of state? Seems pretty obvious to me that’s what they mean. The state’s elected government is a creature independent of the citizens of the state. That was why they were given the senators in the first place.

    But what would be the advantage for citizens to place an intermediary, even if one they selected, between themselves and the selection of Senators? What purpose would that serve?