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.