The Difficulty of Amending the Constitution

A point often made about the Federal Constitution is that formal amendments under Article Five are very difficult to make. They are more difficult than in most state constitutions and more difficult that most other comparable national constitutions. To an extent this burden is used as a justification for Supreme Court rulings that “update” the meaning of certain constitutional provisions, as well as for overruling what are viewed as erroneous Supreme Court precedents.

Whether that argument is valid or not, another thought along these lines is that, if you think that the Constitution is too difficult to amend, then you should err when possible on constructions that make amendments easier to adopt. The Joint Resolution now pending in the Illinois Legislature to ratify the ERA argues that Congress should have the power to waive the prior deadline for ratification (which expired in 1982) because the Constitution is one of the hardest in the world to amend. But this construction of Article Five depends on the premise that hardest=too hard. Is that the case?

More ERA strangeness tomorrow.

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5 Responses

  1. Brett Bellmore says:

    In chemistry there’s the concept of the rate limiting step; The step in a series of reactions which is the slowest, and thus dictates the overall rate of the reaction.

    If you compare the rate of amendments being ratified once sent from Congress, to the rate at which they’re issued by Congress, it becomes clear that the “rate limiting step” for amending the Constitution isn’t ratification, it’s Congress originating the amendments. Congress hasn’t sent a new amendment to the states since 1978! Forty years ago.

    We don’t need to make ratification easier. We need to make originating amendments easier.

    So, if you’re concerned that the Constitution is too static, you wouldn’t urge Congress to engage in sophistry to declare defeated amendments ‘ratified’. You’d call for a constitutional convention.

  2. Joe says:

    “Update” here means applying the Constitution per the facts on the ground in an up to date way — so, e.g., determining what is “necessary” or if something is “equal” per current knowledge and institutions in place. The Constitution sets up a framework that allows for or even encourages that sort of thing.

    The courts having somewhat less compunction for overturning old precedents because an amendment is that much harder to change what now seems to be a bad call makes sense as one factor in judicial decision-making.

    The “one factor” is important here. In my view, too much time has passed for Congress to reasonably waive a deadline in place over thirty years ago. If this was 1986 or something, that wouldn’t be as true. Plus, the first part makes the concern that much less compelling — in thirty years, there is room for significant change in how a specific provision is interpreted & an amendment that singles out one aspect of it (ERA a subset of equal protection) is less compelling now. Finally, to the degree there is support for the amendment — which logically Congress would have to determine if they did extended the deadline — should be able to re-start the clock and have states ratify starting from scratch fairly quickly.

    • Brett Bellmore says:

      Joe, realistically, the advocates of the approach Gerard is describing are advocating it because the prospects for passage of a new ERA have, if anything, gotten worse, not better. Obergefell did ERA boosters no favors; If the courts could up and decide that the 14th amendment suddenly “means” things that ERA proponents treated as vicious libels when attributed to the ERA, who knows what meanings the courts might attribute to an actually ratified ERA? With a judiciary like this any new amendment, unless drafted with utter precision, amounts to handing an embezzler a signed blank check.

      The public may have had no effective option for defeating the judiciary on SSM, but they can and likely would avoid giving that judiciary more excuses to engage in such mischief.

      • Joe says:

        I do think there is less of a felt need for the ERA to pass these days so it’s a reasonable idea, shrugs.

        As to Obergefell, it did was the result of over thirty years of societal and legal develops since 1982. Like other things, over decades of development — not “suddenly” — specific applications of broad concepts like equal protection are likely to change a lot. Plus, it wasn’t based on sex discrimination though it could have been. In fact, part of the reason it WAS NOT is because many consider sexual orientation and sex as at least somewhat separate things.

        The fact SOME people (at least publicly), addressing but one aspect of the issue, didn’t think the ERA would lead to same sex marriage (some supporters did; others didn’t say it was a “vicious libel”) is akin to how people in 1787 was quite sure “x” provision wouldn’t result in “y” and hey! It did, since they weren’t all prophets. And, again, it took over 30 years without the ERA.

        The public supported state ERAs and entrusting state legislatures to interpret them along with other open-ended provisions. So, I’m not sure what they will do here, especially since the public at large supports same sex marriage or isn’t so horrified by it that they will use it to oppose something they otherwise would support like sexual equality.

  3. Brett Bellmore says:

    A secondary point about the alleged difficulty of amending the Constitution: Difficulty is relative.

    I might find it “difficult” to persuade the bank to loan me the money for a home improvement loan. This might not mean doing so would be infeasible, just troublesome, and with the potential for failure.

    But I still might do it, if I really wanted that new deck, and a bank loan was the only way to afford it.

    Now suppose that somebody had blown a hole in the back wall of the bank, and the vault lies open and unguarded. And all I have to do in order to obtain the money for my new deck is to saunter in and pick it up, with no messy paperwork or possibility of being turned down.

    What are the odds, now, that I’m going to bother applying for a loan? Pretty slim, I should think.

    As I pointed out above, the real obstacle today to amending the Constitution isn’t ratification, it’s origination. After the DC voting rights amendment in 1978, Congress simply stopped making any serious effort to originate new constitutional amendments. (The balanced budget and term limits amendments in ’95 were theatrics, deliberately managed to fail.)

    You might consider that this isn’t because amending the Constitution suddenly became absolutely more difficult after 1978, but rather that it became relatively more difficult, because some other way of changing the Constitution was available, that was easier than amendments.

    Living constitutionalism, ‘amendment’ by judicial fiat, is the gaping hole in the bank vault in our story. It doesn’t require Congress to formally draft an amendment, it doesn’t require running the risk of the amendment being unpopular, or failing ratification. You just make sure that incoming judges find the ‘amendment’ congenial, and in due time the Constitution turns out to “have always meant” your new meaning.

    With it available, Congress doesn’t bother originating new amendments. Farcically declaring dead amendments ‘ratified’ would not change this, the number of dead amendments available for Congress to pull off that trick is quite short, many of them are not amendments the modern Congress would want anyway, and even if they were, there’s no way for Congress to avoid being blamed for the new ‘amendment’.

    Judicial ‘interpretation’ has none of these faults. The Constitution gets ‘changed’ regardless of whether the change is popular, and a body not subject to being voted out in the next election gets all the blame. Why, with it available, would Congress ever originate an amendment?