Amending the Constitution Is Necessary Right Now | Know More!
President Joe Biden’s Supreme Court Commission closed quietly. This panel of 34 of our country’s best legal minds reviewed recommendations to significantly restructure the third branch of our government. They spent months hearing testimony and circulating draughts on adding justices, limiting justices to 18-year terms, denying the court certain sorts of cases, and requiring a supermajority of justices to reverse congressional legislation.
Only the most fervent court supporters yawned at their final report.
And why? According to the Commission, “there is considerable disagreement among Commissioners on these issues.” Their findings were not dull; they were worthless. Nobody paying attention believes it will happen. The only way to reform the constitution is to add justices (and even then there was much dispute among the commissioners). The Constitution cannot be amended.
Our Founders made altering the Constitution difficult but not impossible. They ratified the agreement with several of the Bill of Rights modifications already in mind. George Washington spent a lot of time on amendments in his first inaugural address. “We may as well demand a man to wear now the clothing which fitted him while a youngster as civilized society to continue eternally under the regimen of their barbarian ancestors,” said Thomas Jefferson later.
But now, the amendment process has been thrown to the dustbin, while our national concerns — from climate change to an antiquated immigration system — pile up without political responsibility. Even if you believe the Supreme Court has made every appropriate judgment (narrator: it hasn’t), the consequent constitutional stagnation threatens the Republic.
We Must Alter Amending
It’s all in Article V of our joint governing contract. The amendment must be presented by either 67 senators and 288 house members or 34 states. Of obviously, our population isn’t uniformly distributed. Less than 14 million people live in the 12 tini To modify the Constitution, we would need to get 96 percent of the country’s 330 million people to agree — assuming all the least populated states don’t vote for it.
It’s not easy. Only 27 of the over 11,000 proposed constitutional changes have passed in 233 years. But it’s getting harder. Getting two-thirds support in today’s broken Congress is ludicrous.
It was amended almost half a century ago. That was followed by the Bill of Rights. In a few years, the following two were ratified: state immunity from litigation and a presidential-vice-presidential ticket. Following the Civil War, the rebellious states had to ratify the three civil rights amendments to rejoin the Union. Twelve more came in the 20th century. The 27th amendment, which delays a congressional pay hike until after the next congressional election, was introduced with the Bill of Rights and took 202 years to obtain enough state votes to become part of the Constitution in 1992.
Amending the Constitution has gotten increasingly difficult as its importance has grown. Nobody believes the framers of the Constitution in 1787 foresaw our issues in 2022. They didn’t either. (The Founders chose the Constitution over the Articles of Confederation because they were harder to modify.) The more away we are from the Constitution’s writing, the more revisions should be required to keep it current with changing technologies, social norms, and (hopefully) lessons learned about governance.
It’s probable the Founders didn’t expect Congress to readily cede so much authority to the judicial and executive departments, making constitutional amendments the only option to address gerrymandering and speech laws.
Less legislation from Congress means more pressure on the executive branch — and its vast array of administrative agencies — to solve the country’s issues. But the executive branch cannot serve as a surrogate legislative, which is why so many executive orders and acts wind up in federal court. That puts the courts in an unenviable position: either strike down the presidential action, knowing that Congress is unlikely to intervene or allow the executive branch to continue encroaching on legislative jurisdiction, thus eroding congressional desire to handle politically sensitive matters.
One example is immigration. The Immigration Reform and Control Act of 1986 was the last major legislative reform. Millions more illegally entered the US in the decades that followed. Fixing the situation helped neither party politically because it was a hot-button topic. So Congress sat. Legislators didn’t improve legal immigration; they didn’t address existing residents. The Deferred Action for Childhood Arrivals (DACA) program allows juveniles brought to the country illegally as well as parents of American citizens brought to the country illegally to apply for work permits. Republican states sued quickly, claiming Obama had overstepped his constitutional authority to “take Care that the Laws be properly executed” by enacting new laws. Years later, the federal courts have torn down DAPA and may soon do so with DACA. Congress, idly observing, has done nothing.
It’s not simply partisanship. Despite one-party control of both chambers of Congress and the President, Congress has done less than before. The 117th Congress may be the least productive in almost 50 years.
Returning to Biden’s Supreme Court Commission You can’t fix the Supreme Court by giving it 18-year terms or guaranteeing every president two SCOTUS nominees every term. The Supreme Court is a conservative-with-a-small-c institution that establishes a constitutional floor, not a ceiling, for rights. It is only Congress — or an amendment process — that can genuinely solve these challenges. And if conservatives honestly feel the administrative state has grown out of control and often infringes on ordinary Americans’ liberty, then easing the Amendment process is a method to starve the beast. Currently, administrative agencies argue that if they don’t solve a national issue, no one else would.
With today’s Congressional inertness, the only solution is to alter the Constitution. That’s too difficult now. Examine the Equal Rights Amendment’s travails. The ERA was first offered to the states in 1972, but only 35 states ratified it before Congress’ 1979 deadline. Following the #MeToo movement, three more states ratified the ERA, including Virginia last year, bringing the total to 38. Meanwhile, five states repealed their ratification. Can Congress establish ratification dates? Can nations be “unratified” before 38? Nevada, Illinois, and Virginia have sued the National Archivist to have the ERA recognized as part of the Constitution. No wins yet.
To alter the Constitution now, you need 34 states or two-thirds of each house of Congress, and they aren’t likely to enact legislation with a simple majority. Then 38 state legislatures must approve the amendment. Until then, you must prevent the states that have previously voted to ratify from withdrawing their votes.
This is hardly a long-term survival strategy for a sovereign people. This sluggish method of governing benefits no one. The evident difficulty of a meaningful constitutional change at this time in our political debate means they are rarely proposed. The number of proposed amendments has continuously decreased, with the latest Congress proposing half as many (78) as in 1996.
This may change!
Amend the Constitution’s amendment clause. Our creators sought a high bar for amendments, but not too high. Maybe two-thirds rather than three-quarters of states ratify? Maybe we should ban takebacks after state ratification?
I welcome modifications, but let’s start with some text: It is legal when two-thirds of the states ratify an amendment presented by Congress or by a majority of states. No state may withdraw its ratification, and all ratification deadlines must be included in the treaty itself.
In the fall of 2005, I walked Justice Antonin Scalia’s papers around Harvard’s campus. He was chatting to me in the same way an adult engages a 3-year-old in conversation, knowing they won’t grasp everything but hoping they’ll pick up some language skills. But while I attempted to understand what we were discussing, Scalia said something surprising. So much so that I still remember it.
He felt the Constitution was faulty. The people couldn’t “overrule” Supreme Court rulings, leaving the courts in charge of knotty problems best left to the democratic process.
They were asked how they would modify the Constitution in 2014. She wants the Equal Rights Amendment approved. Scalia replied as he had a decade before: “Scalia once assessed what proportion of the people might prevent a constitutional amendment, and determined it was fewer than 2%,” the Legal Times reports. A challenge, but not so difficult,” Scalia added.
Right. It’s time to change the procedure.