[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.