Amendment Barriers
[Cross-posted from NaPP]
Doug Mataconis and Steven Taylor go back and forth on whether the Constitution is too hard to amend. This is an area where my instincts are to agree with Mataconis, but where I actually agree with Taylor rather strongly.
One of the arguments that drives me batty is, with regard to a plethora of proposed amendments, “For people who claim to love the Constitution, conservatives sure want to change it a lot.” To me, there is absolutely nothing contradictory in loving the Constitution and supporting changes that are expressly authorized in said constitution. There is more textual support for changing the Constitution by way of amendment than by way of judicial review, which was something we inferred. Now, whether the right actually believes in this distinction is another matter. But it’s a valid distinction whether they are using it cynically or genuinely.
The problem is that the amendment system is broken. The bar is set so high that the only way to deal with the changes of time with regard to the Constitution is by way of judicial decree. Now, I don’t support making constitutional changes really easy, either. I originally come from a state where it is such, and that opens up a host of other problems. I also, unlike the University of Texas professor who got this conversation started, don’t think that we should be looking at state constitutions anyway as I don’t believe their comparable. Looking internationally, as Taylor does in a second post, is not necessarily a bad idea, so long as we remain cognizant of the fact that what works there may not work here.
The point that it’s more possible – at least in theory – to change the constitution by way of another convention is an interesting one. And almost terrifying. That would open the door towards all manner of change and I don’t have the highest confidence in what we would come up with. I think that sense is universal, which is one of the major reasons why one has never been called. That and the small states banding together to Save Our Senate (which would almost certainly get a look-over if this Pandora’s Box were opened). If it weren’t for the valve-release of judicial review, we might have had to call one by now just to sort out the whole “Interstate Commerce” thing. Not that I think the courts have it right, but it may well be (and I think is) the lesser of evils.
I’m not sure exactly what the correct threshold is. I’d rather err on the side of “too hard” than “too easy,” but I think there is a strong argument that we err too far in that direction.
We don’t amend the Constitution anymore. We just amend the definitions of the words used to write it.Report
That’s true. It’s okay, too.Report
It’s also not as new a thing as we like to believe.Report
I have already argued this here, but I don’t think the problem is that the Constitution is too hard to change, it’s that there’s just no compelling reason to change it these days.Report
There’s an interesting discussion of parts of the Constitution that need amending that you might want to keep an eye on if you are interested in constitutional clarifications.Report
Change the ratification standard to 2/3 or 3/5 instead of 3/4?Report
8th Amendment forbids “cruel AND unusual punishments”. This means that cruel punishments are okay as long as they are done on a regular basis.
I would like to see more unusual punishments that are not cruel, like say “you are banned from the use of toilet paper forever” or forcing people to walk across the country. Mind calm down the mind.Report
“The jury has found you guilty. I sentence you to wear this Hot DOg On A Stick uniform for the next 18 months.”Report
Tod, you may not have known that there is a population out there that fetishizes women who wear Hot Dog On A Stick uniforms. Apparently the hat is a focus of particular interest.
Rule 34.Report
This is either proof that we’re all going to be OK, or that mankind is doomed. I can’t decide which.Report
Put on the Hot Dog on a Stick uniform for two weeks.
If you find your picture online as the header for some fanfic, you can take that as “doomed”.Report
By the way, having known a few girls who worked there while we were in high school, its Dog on a Log…Report
Is there a way to make a distinction between types of amendments? For instance, amendments about the structure of government (limiting the president to two terms, term limiting Congress, etc etc) could face a lower barrier than amendments governing the rights of the general citizenry (free speech, buying alcohol). I’m not sure if there’s a principled way to make this distinction, but if there is it might be a good idea.Report
Such a distinction could be made, but inevitably it would result in the Sup Ct ruling on cases where the designation of type is disputed, which would have the weird outcome of having them ruling on merely proposed amendments. But I don’t know that there’s anything fundamentally problematic about that.Report
The difficulty of amending the Constitution is a primary reason why so many controversial Supreme Court opinions have proven so enduring.
The difficulty with amending the Constitution is that any proposed amendment would be immediately evaluated in terms of “Would it benefit Republicans?” or “Would it benefit Democrats?” and immediately you’ve got 40% of the country against it.Report
And of course any proposal to make it easier to amend the constitution would itself involve amending the constitution. It’s a nasty catch-22.Report
“That and the small states banding together to Save Our Senate (which would almost certainly get a look-over if this Pandora’s Box were opened).” I wonder how an attempt to abolish the senate might run up against this provision of the fifth article of the constitution: “Provided…that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Leaving aside the near impossibility of getting 3/4 of the states to sign on to abolishing the senate, how might this clause be invoked to “protect” the senate (I’m assuming that abolishing the senate would in effect be depriving each state “of its equal Suffrage”)? I assume some small states might take it to court, but then would the federal courts punt and say it’s a “political question”?
I’ll spare you linking to my own plan to reform the senate–a plan I’ve shilled often enough on this blog–but I do believe that a wiser, and more likely to be enacted, reform would be to change the powers of the senate while leaving the representation and “equal Suffrage” intact.Report
The question of political suffrage and Senate reform is interesting. The right wing seems to have a kick to repeal the 17th amendment and go back to having Senators appointed by state legislators recently. They also are on another kick for a “ban flag burning” amendment as well as a long-running crusade to disenfranchise poor or minority voters in the name of stamping out an epidemic of voter fraud that – at least as far as investigations in all 50 states by law enforcement and attorneys general of both parties can determine – simply doesn’t exist.
I wonder how much the Senate thing has to do with gerrymandered districting that has given Republicans solid control of state legislatures even in a number of states where the statewide races for Senate seats or Governorship are usually a tight race. Currently the count sits at 27 controlled by Republicans, 17 controlled by Democrats, 7 “split” between houses, and Nebraska (which is “officially nonpartisan”). The cynic in me suspects that Republicans pushing the plan do so not out of principle but because by way of further disenfranchising voters who are already disenfranchised by gerrymandering it’d give them a guaranteed majority in the Senate that couldn’t be stopped by campaigning against the actual Senator(s).Report
I’m not sure I’m familiar with your plans for the Senate? I am actually not opposed to some reform, except for a desire to defend it in the abstract and not get 1000 questions about why it exists in the first place (I never understood until I started living in some lowpop states).
If there is concern about the equal suffrage part, I think the straightforward solution is to simply make the senate a powerless, honorary body as the upper house is in many parliamentary states.Report
Mostly what I would do is give the senate a suspensory veto of anything passed by the House, but give it a lot of oversight over the executive branch: it could nullify executive orders and could remove cabinet officers for “no confidence” (and thereby have an option other than impeachment). I would probably require supermajorities for such actions.Report
And if everyone’s sufferage is zero, everyone’s sufferage is equalReport
Bingo. Arguably, if you did away with the senate entirely, the same rule could apply. It would be kind of weird to say that the Constitution allows for the abolition of the Senate, but not the restructuring of it. Maybe if you got rid of the Senate and then referred to the restructured upper house as something else, that might be a loophole. Or saying “That was the United States Senate. This is the Senate of the United States! Different.”
I suspect that if it came down to it, the courts would simply redefine what “equal” means and say that “as population-proportional as possible” applies.Report