Guiding our Governmental Reforms: How The Constitution Can Be Amended

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JACOB BROWN: The U.S. Constitution shapes our society for better and for worse. It is the document from which, at least in theory, the power of the federal government flows. As a result, what it contains is of profound importance to us all, as is how we change what it contains. There are currently twenty-seven amendments to the Constitution serving a wide array of functions from abolishing slavery (mostly) to requiring that congressional pay raises only take effect after an election for the House of Representatives. Each went through a long and arduous process to become part of the most fundamental fabric of our system of governance. The same process that has prevented more than 11,000 proposed amendments from entering the Constitution.

Amending the Constitution is governed by Article V of the document. It lays out two main paths through which the Constitution can be amended: approval of two-thirds of each house of Congress or passage through a constitutional convention convened when at least two-thirds of states have called for one. Notably, a constitutional convention has never been convened since the adoption of the U.S. Constitution. In either case, the resulting amendment(s) must be ratified by either three-fourths of state legislatures or three-fourths of state ratification conventions with Congress choosing which method to use.

There are two notable exceptions to the ability to amend the constitution written into Article V. The first is the prohibition on amending the constitution before 1808 to grant Congress the power to regulate the importation of slaves or levy direct taxes where the gross revenues from a single state would be out of proportion with that state’s percentage of the total U.S. population. The second is the still active prohibition on denying any state its having the same influence in the Senate as the other states without the consent of that state.

Central to the amendment process is its length and difficulty.  Agreement among two-thirds of both chambers of Congress and three-fourths of all states is a high bar to pass. In a country as divided as ours, it is difficult to imagine any significant constitutional amendments managing to enter into force. This may be a positive requirement—amending the Constitution should not be done lightly—but at the same time it makes curing clearly problematic elements of the Constitution quite difficult.

Another notable characteristic of the process for amending the U.S. Constitution is the process’ lack of clarity. On its face, it seems simple: both houses of Congress vote and then state legislatures vote. However, that’s only if one specific path is used. For example, we currently have minimal legal guidance on how a constitutional convention would work, mostly due to the fact that one has never happened before under Article V’s authority.

In fact, the procedures under which such a convention would operate are so unclear that in 2019 hundreds of organizations focusing on civil rights, governmental reform, immigration, and other issues including the ACLU, the NAACP, and Citizens for Responsibility and Ethics in Washington (CREW) signed an open letter warning against such a convention. They argued that such a convention “is a dangerous threat to the U.S. Constitution, our democracy, and our civil rights and liberties” due to the lack of limitations or established procedures. This concern is not completely unfounded, nor is it just shared by liberals. Former conservative Supreme Court justice Antonin Scalia stated that “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”

To be clear, not all legal scholars share the view that a constitutional convention would be a risky gamble. Lawrence Lessig, famed academic, activist, and brief Democratic presidential candidate, has repeatedly advocated for such a convention to make our government more responsive to the people. A number of other law professors and a long list of conservative politicians, lawyers, activists, and pundits have made similar arguments about constitutional conventions. It is worth remembering that for all the uncertainty about what a constitutional convention would actually involve, any amendments proposed by the national constitutional convention would need to get the approval of either three-fourths of state legislatures or three-fourths of state constitutional conventions before they become part of the Constitution. Therefore, even if the lack of clarity surrounding how a national constitutional convention would operate leads to a convention proposing extreme or dangerous amendments, state legislatures or constitutional conventions could intervene to prevent those proposed amendments from becoming part of the Constitution.

Beyond the lack of clarity about how a constitutional convention would work, there are also a number of questions swirling around other elements of the amending process. Perhaps the most notable is if Congress can extend the deadline it set on state legislatures ratifying an amendment when it originally posed an amendment for ratification. This has mainly drawn attention due to the Equal Rights Amendment (ERA) (which states that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”). The ERA failed to get enough state legislatures to ratify it before the Congressional deadline in 1982 yet states have continued to ratify it. In fact, at this point thirty-eight states have ratified the ERA.

Despite thirty-eight states being more than two-thirds of all states, it is not clear whether a sufficient number of states have ratified the ERA. There is a somewhat open question of if states can rescind their ratifications of an amendment. Five of the thirty-eight ratifiers have also rescinded their ratifications. It is not a fully settled question of if a state can do that although it is likely that the authority to decide if they can rests with Congress.

Other notable questions include if Congress must actually initiate a constitutional convention once the required proportion of states have called for one and whether it must initiate the process of sending amendments approved by such a convention to the states.

Some Suggestions

Ultimately, given the lack of certainty surrounding the amendment process and the risk of confusion that it could cause, one of the most important things we can do is amend Article V to clarify the process a little. That there are few limits on a process for radically reshaping the Constitution is deeply concerning. Yes, there are checks in the form of any amendments coming out of a constitutional convention still needing to be ratified by three-fourths of states. However, that only works to stop bad outcomes, not encourage good ones. You can also pick your favorite ridiculous action taken by a state legislature to make that check seem insufficient. Be it Texas effectively dodging a then-clear constitutional restriction through instituting a public bounty on people who provide abortions or California attempting to limit the speech of doctors to their patients.

Another thing that we could do is just use the process more to improve the structures that underlie our government. There is nothing special about how the Constitution structures the federal government. In fact, constitutional design has drifted away from the U.S. model. Thomas Jefferson thought that the Constitution should be prone to changing about every twenty years to keep up with the desires of newer generations. Justice Ruth Bader Ginsberg voiced dissatisfaction with the U.S. Constitution, as have all the conservative lawyers, activists, politicians, and pundits calling for a substantial change in the balance of power between states and the federal government. A lot of the structural issues that people care about could be dealt with through amending the Constitution, from large flows of money into political campaigns to gerrymandering. Of course, any change should be made carefully, but we also need to be cautious about assuming that everything will work out if we do nothing.

Perhaps the most important change that could be made, though, is actually a very limited one. There is currently nothing explicitly in Article V that prevents an amendment that does something like the 1933 Enabling Act, which transferred dictatorial power to the then-chancellor of Germany Adolf Hitler in an effort to appease his Nazi party and avert their political rise. It may seem like such a law could not get through the constitutional amendment process here. However, the required vote threshold to pass the Enabling Act was only two-thirds of parliament, the proportion of each house of Congress needed to initiate a constitutional amendment. While there are some scholars who believe that such a radical change is implicitly prohibited, they have little to point to concretely in order to support the position. Altering Article V in an irreversible way so it cannot be used to create a dictator or some similarly objectionable power structure is probably a good idea.

Jacob Brown is a freshman studying Economics and Government. Jacob is from Redmond, Washington, and spends his free time figuring out how fast he can listen to podcasts. He is a member of Georgetown Effective Altruism, the Georgetown Bipartisan Coalition and the Georgetown Moot Court Team.