Amendment Barriers


Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.

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22 Responses

  1. Avatar DensityDuck says:

    We don’t amend the Constitution anymore. We just amend the definitions of the words used to write it.Report

  2. Avatar Tod Kelly says:

    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

  3. Avatar M.A. says:

    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

  4. Avatar James Hanley says:

    Change the ratification standard to 2/3 or 3/5 instead of 3/4?Report

  5. Avatar Jeff Wong says:

    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

  6. Avatar Dan Miller says:

    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

    • Avatar James Hanley says:

      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

  7. Avatar Burt Likko says:

    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

    • Avatar Dan Miller says:

      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

  8. “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

    • Avatar M.A. says:

      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

    • Avatar Will Truman says:

      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

    • Avatar Kolohe says:

      And if everyone’s sufferage is zero, everyone’s sufferage is equalReport

      • Avatar Will Truman says:

        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