Imagine the following real estate nightmare. You end up having to live in a house that you inherited from a long-lost relative. It is a 18th century house in a picturesque New England town. When it was built, it was one of the finest homes in the area. But to your dismay, you learn that because it is in a historical district with particularly strong preservation rules, nothing has been changed or updated in this house. So you have to try to live in a place with tiny rooms, no electricity, heated only by fireplaces, uninsulated walls and leaky windows, sweltering in the summer, ovens fired by wood, no indoor bathrooms, and so on. Who in their right mind would want to do that – live without all the conveniences of 21st century home? But that is pretty much the situation we Americans find themselves in politically. We are forced to live in a political system designed in the 18th century, with very little chance of adopting the modern improvements to political systems enjoyed by most other major democracies. All because we have what most constitutional scholars believe is the hardest constitution to change in the entire world.
High Obstacles and Minority Rule
No other democracy puts so many high obstacles in the way of amending its constitution. The numbers tell the story: in the U.S., it takes two-thirds of both Houses of Congress and three-quarters of the states to enact an amendment. Garnering two successive super-majorities like this is clearly a very high political hurdle to clear. There is an alternative – calling a constitutional convention – but it is hardly any easier. Two-thirds of the states must call for a convention, and then any amendments must be again approved by three-quarters of the states.
It only takes 34 senators from the 17 least-populous states with 7% of the U.S. population to block an amendment.
The requirement for several supermajorities to change the Constitution makes it very easy for a minority to block any proposed changes. The numbers tell the story: it only takes 34 senators from the 17 least-populous states with 7% of the U.S. population to block an amendment. Or this: only 13 states are necessary to scuttle any amendment. And state level opponents would only have to block it in either the House or Senate of a state – not both. To make matters worse, the smallest thirteen states represent only 4% of the U.S. population and could frustrate the political desires of the other 96% of us. These disturbing figures impressed even the late Justice of the Supreme Court, Antonin Scalia who was known as a conservative, strict-constructionist when it came to the Constitution. Commenting on the amazing small percentage of Americans that can block an amendment, he said: “It ought to be hard, but not that hard.”
Given the arduousness of this process, it is hardly surprising that amendments to our Constitution are rare. To date, reformers have proposed over 11,000 amendments, but only 27 have passed. We should keep in mind however that 10 of those 27 were in the Bill of Rights that passed in 1791. So really only 17 additional amendments have been ratified since then. In the last 50 years, despite dozens of proposed amendments, only one has passed. It concerned a relatively minor issue: that any raise for members of Congress can take effect only after the next election. By the way, this relatively uncontroversial amendment took 203 years to become ratified after originally being sent to the states in 1789.
Other Democracies Do It Better
The extraordinary difficulty in changing our Constitution becomes even more curious when we consider that all of our peer democracies have easier amendment processes. That is not to say that they make it easy. Many do require a supermajority to change their basic political rules. But they use a supermajority smaller than ours; such as three-fifths for France and Spain; and two-thirds for Germany, Belgium, Finland and the Netherlands. We are the only country that requires a three-fourths supermajority for all amendments. This can make a significant difference. If the U.S. required only three-fifths of the states to approve an amendment, the Equal Rights amendment would have been enacted many years ago.
In some countries, only a simple majority is required. Several Nordic countries, for instance, allow amendments to be approved by a simple majority in two consecutive sessions of their national legislatures, with the intervening election allowing for public input on the decision. And in some countries, public referendums play a role. In Ireland, for instance, an amendment must be passed by a simple majority in both the lower and upper house and then gain the support of a majority of the voters.
The amending process in other Western democracies is also made easier because some don’t have two different national legislative bodies. Many of these countries are unicameral – having only one legislative house. In Sweden, Greece, Norway, New Zealand, Luxembourg, Iceland, Finland, Portugal, and Denmark amendments have only one legislative hurdle to overcome, not two as in the U.S.
And, finally, most other Western nations do not have federalism. They have unitary national governments, with no states or other subnational units that must also approve amendments – thus eliminating another obstacle that exists in the U.S. Canada does have federalism, but even there the amendment process is considerably easier than in the U.S. Ratification requires only the approval of parliament by a simple majority, and then approval of two-thirds of the provinces that represent a majority of the population.
Virtually all other major Western democracies have much more reasonable constitutional amendment procedures — and they are doing fine.
So virtually all other major Western democracies have much more reasonable constitutional amendment procedures. As a result, they are in a better position to pass amendments when the need arises. Germany passes an amendment about once a year and France about once every two years. To many Americans, this may seem like a startling rate of change, but only because we are used to a frozen Constitution. In Europe, this moderate rate of constitutional change is simply business as usual. These countries make constitutional change difficult, but not impossible, and this gives their citizens a much better chance to change basic political arrangements that they find unfair. And no one would argue that these less labyrinthine amendment processes have pushed these democracies off the rails.
Stifling Political Innovation
Political systems need to adapt to the times, abandon traditions that are no longer working, and embrace new innovations that improve democracy. But that is exactly what our Constitution prevents us from doing. We remain hostage to an anachronistic and undemocratic governmental system designed over two centuries ago, unable to adopt the improvements that other Western countries have incorporated into their political systems.
A good example of how our frozen Constitution inhibits desirable institutional change is the Supreme Court. Virtually all other major democracies have rejected the idea of life-time appointments for justices in favor of term limits or age limits. But following their example would require an amendment, which as we know is extremely difficult in our system. Or consider the Electoral College. A large majority of Americans want to get rid of it. And over 700 amendments have been proposed to reform or eliminate this anachronistic and malfunctioning institution, but all have failed to overcome the minority-rule obstacles to ratification. Persistence counts for a lot in many areas of life, but apparently trying to amend the Constitution is not one of them. The path to a better democracy in the United States is being impeded by the undemocratic process of amending our Constitution.
Our Constitution also stifles other kinds of political innovations. For instance, many of our peer democracies have banned or placed strong limits on private funding of political campaigns, and have adopted various forms of public financing for these races. But our Supreme Court has declared that private funding is a form of free speech and thus protected by the 1st Amendment. Campaign finance reformers have proposed many amendments to overturn this ruling, but again their chances of passage are minimal at best.
Finally, consider that sixteen democracies in Western Europe have adopted constitutional amendments ensuring equal rights for women. And yet, the barriers to amending the constitution are so high in this country, that our Equal Rights Amendment has languished for over 40 years, unable to be passed. This despite the fact that over 75% of Americans support such an amendment. It is not hard to imagine most Americans supporting other constitutional amendments to ensure such things as the right to vote or the right to adequate medical care. But there is little chance that efforts to pass such changes could overcome the ridiculously high barriers to amending our Constitution.
In any real democracy, the people should have the right to change basic constitutional arrangements that they find faulty and amend the constitution to improve the political system. We are effectively denied that right in this country.
Jefferson Knew Better
Most people, understandably, blame the founding fathers for this situation. But not all of them thought it was a good idea to have a constitution written in stone. Thomas Jefferson believed the Constitution should continually evolve and that each generation should be able to rewrite it. As he put it: “No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation…Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.”
Jefferson also argued that we make a mistake when we venerate a constitution and refuse to acknowledge that political institutions should improve as human knowledge expands.
Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. … [But] laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
The Political Bias in the Amending Process
There is a clear political bias to the amendment process: it gives more political power to some voters and less to others. Two of the three veto points – the Senate and the states – over represent some parts of the electorate. As noted in another article on this site, the Senate vastly over-represents voters from small states – who tend to be rural, white, and conservative. The same problem exists in the states’ role in the amending process. Less populous states like South Dakota have just as much power in the process as more populous states like California. Each essentially casts one vote for or against an amendment, regardless of their size. Giving undue power in the amending process to small states clearly works to the advantage of the Republican Party.
An overly difficult amending process also tends to work in favor of the GOP. As discussed in the article on the gridlock caused by our separation-of-powers system, any institutional bias toward inhibiting change and maintaining the status quo tends to support Republican political goals more than Democratic. In general, the Democratic Party is more interested in change while the Republicans are often primarily concerned with preserving that status quo and the current political and economic advantages enjoyed by the wealthy individuals and corporations that support the GOP.
Transferring Power to an Unaccountable Court
Making the Constitution so difficult to change creates another problem. If the public and their representatives cannot amend the Constitution, then any hope for change often rests in the hands of the Supreme Court and its ability to interpret and reinterpret that document. But this transfers an enormous amount of power to the Court. And as we’ve seen elsewhere on this site, the Supreme Court is the least democratic and least accountable branch of government – nine people appointed for life who can do pretty much what they want without any concern for what the public desires.
We can see the problems caused by this in the case of gun control policy. In all other major Western democracies, there are no constitutional rights to bear arms, so gun control policy is controlled by popular elected legislatures – which makes a great deal of sense. But the U.S. has the 2nd amendment – and so our gun control policy is determined by how the Supreme Court interprets that amendment. Until recently, the Court had ruled that this right applied primarily to state militias, as the text of the amendment suggests. And this allowed for some state gun control policies to pass constitutional challenges. But in 2008, the Court ruled that the 2nd amendment guaranteed the right of personal ownership of guns – which has now made it much more difficult to pass gun control legislation. This of course is the opposite of what most of the public wants. They have been clamoring for increased firearm regulations. But since the public has no effective ability to change or abolish the 2nd amendment, policymaking power in this area has been ceded to the justices of the Supreme Court.
If we had an easier amending process similar to other Western countries, the Supreme Court would have less power over the Constitution and citizens would have more.
If we had an easier amending process similar to other Western countries, the Supreme Court would have less power over the Constitution and citizens would have more. Social and political movements would be able to wage viable campaigns to change the Constitution, rather than having to rely on the Court to reinterpret it. In the case of firearms, for example, gun control advocates would have a better chance of changing the Constitution to make it clear that personal gun ownership can be regulated, instead of having to wait until the Supreme Court changes its current interpretation of the 2nd amendment. Citizens groups could also pursue a more realistic strategy of using constitutional amendments to overturn Supreme Court rulings that have been widely unpopular, such as the Citizens United campaign finance decision.
The States Do It Better
It’s easy to think that making constitutions very hard to amend is just the way we do things in America – part of our political culture. But this is not true. Most states have made changing their constitution much easier than the federal government. As is usually the case, the states differ considerably in their procedures for amending their constitutions – but rarely are the obstacles as high as on the federal level. For example, eighteen states allow citizens to change their state constitution directly through a voter initiative process. Thirty-six permit an amendment to be submitted to voters after it has passed through the legislature.—sometimes by a supermajority and sometimes by a simple majority. A few states permit amendments to be passed by a simple majority of the state houses in two separate legislative sessions. Forty-four states allow for the calling of a constitutional convention to consider amendments.
The average state constitution has been amended 115 times – compared to 27 for the federal constitution.
These procedures have given citizens and state legislatures a much better opportunity to change and modernize their state constitutions. Most states amend their constitution every two years or so. The average state constitution has been amended 115 times – compared to 27 for the federal constitution. Also, many states have actually adopted completely new constitutions when the old ones became hopelessly outmoded. In total, there have been 150 different state constitutions. So constitutional innovation is alive and well on the state level.
Solutions for the United States
Our peer countries provide many models for how we could unfreeze the U.S. Constitution and make it more amenable to needed changes. We could, for example, adopt the Canadian approach. Amendments could then be passed with the support of a simple majority vote in the House and Senate, and the approval of two-thirds of the state governments representing at least 50% of the population. The Irish model may also have some appeal. Amendments would need only the support of the majority in the House and Senate and a majority of citizens in a national referendum.
The federal government could also follow the example of the states noted earlier. In Connecticut, amendments are adopted if approved in two successive sessions by a simple majority of both chambers of the state legislature and then approved by a majority of the voters. In Colorado, amendments can be passed through the initiative process with the support of 55% of the electorate.
Making the amending process more reasonable would greatly lessen the many problems of our current approach. It would reduce the ability of minority political groups to block needed constitutional changes. It would unfreeze the Constitution and allow us to get rid of antiquated political arrangements like the Electoral College. We would encourage more constitutional innovation to deal with our modern social and political problems. The power of an unelected and unaccountable Supreme Court would be reduced. And it would reduce the pernicious political biases built into our current amending process. All in all, an easier amending process would be a big step toward a more democratic political system in the U.S.
The Chances for Reform: Slim or None
There are several important factors working against revising our constitutional amending process. First, as Thomas Jefferson noted earlier, many Americans view our Constitution with “sanctimonious reverence, and deem [it] like the arc of the covenant, too sacred to be touched.” This kind of constitution worship makes it difficult to convince people that fundamental changes in this document are needed.
Second, there is no organized political effort to reform the amending process right now. There are a large variety of activist groups promoting new amendments in areas ranging from campaign finance to a balanced budget to equal rights for men and women. But there is no large movement advocating making the amending process easier.
The Catch 22 of American politics: we can’t fix our democracy because the process of fixing it is undemocratic.
The third problem is this: amending the amending process takes an amendment. Thus the problem itself – a ridiculously arduous amendment process – makes fixing it very difficult. This is a part of a larger Catch 22 that we see repeatedly in American politics: we can’t fix our democracy because the process of fixing it is undemocratic. For example, we can’t get rid of antiquated arrangements like the Electoral College, which encourages minority rule, because the amending process is controlled by a minority.
All in all, it is hard to be optimistic about reform in this area. Unless Americans suddenly wake up to the severity of this problem, it seems that we are fated to remain prisoners of our old and outmoded Constitution – while other Western nations are free to routinely update their constitutions and pursue a more democratic future.
read the conclusion: How Likely is Reform?