Democratizing the amendment process would be a recipe for ruin.
NRPLUS MEMBER ARTICLE B ecause the Constitution isn’t a particularly dynamic document, it’s been largely immune from the vagaries and grievances of contemporary politics. Yet this is the very reason Sarah Isgur contends that we need to make the amending process easier.
“As we get further from the drafting of the Constitution,” Isgur writes in Politico, “the more changes should presumably be needed to keep that document up to date as technology changes, social mores shift and (hopefully) the United States learns a few things about governing along the way.”
We should presume no such thing.
That’s not to say, of course, that we can never improve on American governance. One day we may be blessed with a politician wiser and more sensible than James Madison. That day is most definitely not today.
Indeed, the Bill of Rights largely concerns itself with enduring liberal ideas, untethered from technological and societal change. Some of the Founders argued that these rights were so self-evident that writing them down would be superfluous at best and destructive at worst, since it would give license to authoritarians to chip away at their meaning.
And, as Isgur points out, of the more than 11,000 proposed constitutional amendments over the past 233 years, only 27 have succeeded. All that proves is that discriminating Americans have treated (or been compelled to treat) their constitution with more deference than most. Trying to appropriate the amendment process and making it a legislative tool — as was the case with Prohibition, for instance — ends poorly.
Democratizing the Constitution would almost certainly pollute the document with more trivial and anachronistic “rights.”Just look at all the state constitutions around the nation. The Alabama constitution has been amended 577 times. Texas, 515. The New York and Oregon constitutions over 200 times. Ohio, 169 times. Because they are so easy to amend, they become cluttered documents with obsolete, insignificant, poorly written, often conflicting laws.
Or look at the European Union, whose constitution was conceived at 70,000 words, dealing with every trendy political concern, 448 Articles, 36 Protocols, 30 Declarations, 20 Declarations on the Protocols, and two Annexes (it’s now 250,000 words). The European Constitution reads more like your HOA’s Covenants, Conditions, and Restrictions than it does the manifestation of governing principles. Which is probably why it’s treated with the same reverence.
The First Amendment protects freedom of speech, press, and religion. The Second, self-defense. The three civil-rights amendments passed following the Civil War ensured that everyone enjoyed the protections of the Bill of Rights. What new right rises to the importance of those? A national minimum wage or free birth control? These are issues for the legislature. The state legislature.
All of us, no doubt, have fantastic ideas for new amendments. I’d like to overturn the 26th and raise the voting age to 30. But there is a far greater chance that the Constitution would be degraded than bettered by easing the amendment process. When Eliot Engel introduces a nonsensically wide-ranging amendment prohibiting “undue burden of proof of identity or citizenship” for voting or “undue or anonymous influence from any person,” he is trying to chip away at the integrity of elections and freedom of speech.
“The current 117th Congress,” Isgur writes, “is on pace to be the least productive in more than 50 years.” This is Isgur’s motivating argument for altering the process. Amending the Constitution, she says, is the “only way to address the country’s big, stagnating problems — from gerrymandering to speech codes.”
This is not only a flawed, but an irrelevant, objection. Some of us contend that Congress has done — spent — far too much. Do less, please. Whatever the case, legislators do not have “productivity” quotas. If voters are unhappy with their representative’s output, they are free to elect a new one. But the inability of Congress to pass Democrats’ reforms on “climate change” or “an outdated immigration system” is an organic reflection of the divided state of the nation. Conservatives don’t get a Human Life Amendment to the Constitution simply because they can’t pass a national heartbeat bill. Surely an amendment should face a tougher path than legislation.
Does anyone really believe democratizing the amendment process would ease those political tensions? The stakes for adding a constitutional right — in perpetuity — would generate a more rigid partisan response. The process would end up nationalizing virtually every issue.
Now, I’m not sure why Antonin Scalia estimated that only 2 percent of the population might be able to prevent an amendment to the Constitution. (Isgur’s calculations on that question only work if you ignore millions of Americans in the minority in blue states.) It’s all theoretical, anyway, since there probably isn’t any proposal that could capture even 60 percent right now. Then again, even if 2 percent is able to stop 98 from larding up the Constitution, the system is working.