You’ve probably heard before, quite frequently, that the US Constitution is outdated and should be amended. The Constitution itself was framed in 1789, and the most recent amendment to it was fully incorporated in 1992. It was the 27th Amendment, by the way. We’re not going to go too far into what should be changed in the US Constitution or Amendments that are currently on the table today. That’s a topic for another time, but suffice to say that yes the Constitution will always be a product of its time and times change. World’s a very different place from 1789. Heck it’s a very different place from 1992. So keeping up with those changes is probably not a bad idea. But how would we even go about it in the first place? How do you amend the Constitution?
Luckily, the Constitution was never designed to be a constant, never-changing document. Sort of. Article V of the US Constitution outlines the amendment process in clear enough terms.
Amendments begin in Congress, both the House of Representatives and the Senate have to determine an amendment is even necessary. Two thirds of both Houses of Congress have to agree on that front and then propose a constitutional amendment. Alternatively two thirds of the states have to agree to call a constitutional convention to propose an amendment together. If you think getting the House of Representatives and Senate to work together (or even work internally, senators fight a lot) good luck getting two thirds of all the American States to agree on anything. None of the 27 amendments so far have been proposed by two thirds of the states getting together to hold a constitutional convention. Not a big surprise.
Anyway, let’s assume an amendment is proposed and makes its way to the ratification process; the Archivist of the United States is charged with overseeing the ratification process. The ratification process isn’t really codified for the Archivist of the US. They actually just follow the traditions of the process set in the past. So there’s another function of the American government built on norms and traditions that we just kind of hope everyone respects.
But in order to ratify an amendment, the Archivist sends the amendment (as proposed by Congress) to each state Governor. They then submit that proposal to state legislatures and the state ratifies it, or doesn’t. Sometimes states call for their own conventions, that’s up to the discretion of Congress.
It takes three fourths of the states to ratify an amendment before it becomes a part of the US Constitution. So if you thought two thirds was dang near impossible good luck getting 75% of Americans to agree on literally anything. Except maybe that baby animals are awesome, but even then we’re not too sure.
Most of the time there’s a deadline to ratify a proposed amendment, so states are implicitly able to reject a proposed one without having to outright say “no.” Those deadlines are a bit wishy washy and can be extended or otherwise changed.
In case you were wondering about the US president, they don’t feature in this process–at least legally. Presidents might attend the certification of an amendment as a ceremonial thing. Johnson was there when the 24th and 25th were certified, and Nixon was there for the 26th. But beyond using the power of presidential rhetoric (because people tend to listen to the president), presidents largely don’t feature in this process.
Amendments Are Hard
You’ve probably figured out by now that amending the US Constitution is prohibitively difficult. Many looking at the contemporary political landscape in America might be surprised that amendments ever get ratified.
Ordinary legislation only needs to be approved by a simple majority in each House of Congress. Amending the US Constitution requires that 66% supermajority, so from the get-go the original framers of the Constitution wanted the process to be rather difficult. On some level, it kind of makes sense. If we could amend the Constitution all willy-nilly, why even have a bedrock of rules in the first place? Plus, framing the Constitution in the first place required lots of compromise, and making it hard to change the Constitution would effectively lock in the deals that made the Constitution happen. Pretty functional in the short term, but less of an issue now since the general union of the United States isn’t really under threat.
But of course, Article V in itself is some wise foresight. The framers could just have easily decided “this document never gets to change ever,” but they had the insight to realize that that’s an objectively terrible idea. Hundreds of proposed amendments are introduced each time Congress gets together, and that amounts to over 10,000 proposed amendments in the over 230 years the Constitution has been a thing. Seems like at that point we should have more than just 27 ratified amendments. Plus, the first 10 amendments were all a batch to settle early Constitutional debate, and the three post Civil War amendments came as a batch too.
So Why Is Amending the Constitution so Hard?
Changes to Germany’s equivalent of the Constitution are made almost yearly, and even states in the US amend their own constitutions every couple years. So you can benchmark America’s “hasn’t had an amendment in over 20 years” against other, similar liberal democracies and reach your own conclusion.
So why’s it so hard? Quite simply, reaching a two thirds majority in 1789 was a lot easier than it is now. America was a lot smaller, and the senate used to be just 20 people strong. Now we’re at 50 states, and at two senators each we’ve multiplied its size by a factor of 5. There are 100 senators. Two thirds of 20 is just over 13, where two thirds of 100 is 66. It’s a lot easier to get 13 people on the same page than 66. America has also gotten increasingly polarized, and opposite sides of the American political spectrum are almost perfectly diametrically opposed. There’s not going to be a lot of compromise between 2 people, much less 66. Take uncomfortable Thanksgiving dinners then multiply that to 100 people.
It’s this difficulty that has us often having the Supreme Court interpret the Constitution in new ways. Which functionally kind of changes it, but it’s not the same thing.
Brush up on some Constitutional knowledge here.