2.8: Amending the Constitution

“The Constitution is ink on parchment. It is forty-four hundred words. And it is, too, the accreted set of meanings that have been made of those words, the amendments, the failed amendments, the struggles, the debates—the course of events—over more than two centuries.”

–Jill Lepore ⁽¹⁾

The Comparative Difficulty of Amending the Constitution

Article V provides several possibilities to amend the Constitution. Since 1789, the U.S. has amended the Constitution only twenty-seven times, even though there have been over eleven thousand amendments proposed. By contrast, the Basic Law of the Federal Republic of Germany has been amended more than fifty-five times since it went into effect in 1949. Similarly, France has amended its constitution two dozen times since 1958. Between 1982 and 2015, Canada amended its constitution eleven times. Amending the U.S. Constitution appears to have become politically more difficult over time—so much so that Albert wrote that the Constitution almost seems to be “amendable in theory alone.” ⁽³⁾ The latest amendment affecting the lives of ordinary Americans was in 1971 when the 26th Amendment set the national voting age at 18 years. (In 1992, the 27th Amendment affected compensation for Representatives and Senators.)

It’s entirely possible that the founders essentially “got it right” when they wrote the document, meaning that there hasn’t really been much need for change. The eleven thousand plus amendment proposals suggest that this is not the case. Obviously, people from a wide variety of political perspectives have thought that the Constitution needed updating. Other people would argue that these proposals were justly defeated. Another way to think about it is that the Constitution’s amending process puts up too many obstacles.

Amending the Constitution

How can the Constitution be amended? Basically, there are four possibilities situated in two pathways. One pathway starts in Congress and the other with the states. Both pathways need sufficient states to ratify the amendment for it to go into effect.

Congressional Initiation

1. The House and the Senate both must pass the amendment by a two-thirds majority vote. If that happens, then the amendment needs to pass by a simple majority of 50 percent, plus one vote, in three-quarters or thirty-eight of the state legislatures to go into effect.
2. The House and the Senate both must pass the amendment by a two-thirds majority vote. If that happens, then the amendment needs to be accepted at state-level conventions in three-quarters or thirty-eight states to go into effect.

State Initiation

3. Two-thirds or thirty-eight states petition Congress to call for a national convention, which passes the amendment. If that happens, then the amendment needs to pass by a simple majority of 50 percent, plus one vote, in three-quarters or thirty-eight of the state legislatures for it to go into effect.
4. Two-thirds or thirty-eight states petition Congress to call for a national convention, which passes the amendment. If that happens, then the amendment needs to be accepted at state-level conventions in three-quarters or thirty-eight states to go into effect.

The first pathway is by far the most common. All but the Twenty-first Amendment traveled this path. Repealing Prohibition was accomplished with pathway #2 above. Pathways #3 and #4 have never been used to pass an amendment. From 1789 to 1993, there were almost 400 proposals from some states calling for a convention to amend the Constitution. ⁽⁴⁾ In 2018, conservative interests came within six states of successfully calling for a constitutional convention that they hoped would constitutionally enshrine their values. These efforts were funded and pushed by wealthy people such as the Mercer family and the Koch brothers. ⁽⁵⁾ Progressives have had less success pushing the same kind of agenda. Legal scholars and jurists from both the Left and the Right worry about a second constitutional convention running amok and radically altering America’s constitutional order.

The U.S. Constitution has not been amended much because it is very difficult to get approval from both the House and Senate with a two-thirds majority and thirty-eight states. Consider the fate of the Equal Rights Amendment (ERA), which surmounted the Congressional hurdle only to fall three states short to ratify. Many years later, Nevada ratified the ERA, followed by Illinois in 2018. After Democrats took over Virginia’s state government in 2019, all eyes turned toward that state to finally ratify. The House of Representatives has twice passed a joint resolution declaring the ERA validly ratified—in February 2020 and March 2021—but Republicans have used the filibuster to block the measure in the Senate.

What if . . . ?

What if you led an organization that was proposing a new amendment to the Constitution? What amendment would you propose? Why? What positive results would you hope to achieve with it? What if you were charged with making the Constitution easier to amend? What procedure would you put in place?

References

1. Jill Lepore, “The Commandments. The Constitution and Its Worshippers,” The New Yorker. January 9, 2011.
2. Richard Albert, “American Exceptionalism in Constitutional Amendment,” Arkansas Law Review. 69(2), 2016. Page 220.
3. Richard Albert, “American Exceptionalism in Constitutional Amendment,” Arkansas Law Review. 69(2), 2016. Page 221.
4. James Kenneth Rogers, “The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process,” The Harvard Journal of Law & Public Policy. 30(3), Summer 2007.
5. Jay Riestenberg, “U.S. Constitution Threatened as Article V Convention Movement Nears Success,” Common Cause. March 21, 2018.
6. Richard Boldt, “Citizens United is Bad. A Constitutional Convention to Overturn it Would be Worse,” The Baltimore Sun. March 26, 2018.
7. Emily Peck, “Yes, Virginia! Women Could Finally Get an Equal Rights Amendment,” HuffPost. November 6, 2019.