Is the US Constitution too hard to amend?

[lpetrich]

The United States Constitution - The U.S. Constitution Online - USConstitution.net

A How-To Guide to Blowing Up the Constitution - NationalJournal.com "With America paralyzed by government gridlock, maybe it's time to admit that our political system doesn't work anymore. What if we start over?"
also The U.S. Needs a New Constitution—Here's How to Write It - The Atlantic

It's full of holes, only some of which have been patched; it guarantees gridlock; and it's virtually impossible to change. "It gets close to a failing grade in terms of 21st-century notions on democratic theory," says University of Texas law professor Sanford Levinson, part of the growing cadre of legal scholars who say the time has come for a new constitutional convention.

"A lot of people have conniptions" when you start talking about changing the Constitution, acknowledges Nick Dranias, a constitutional lawyer at the conservative Goldwater Institute in Arizona. "But the idea that the Founders thought the Constitution would be a perfect and unchanging document is simply not true." The problem is that they didn't realize how difficult they'd made it to actually change things. The U.S. Constitution is the world's hardest to amend, according to Levinson. (Yugoslavia used to hold that distinction; perhaps not coincidentally, Yugoslavia no longer exists.)

Many US state constitutions are also much easier to amend than the national one, and some of them have been amended numerous times.

The procedure for amending it is set forth in Article V.

Proposing the amendments:

• Both houses of Congress voting for one, each one by a 2/3 vote.
• A Constitutional Convention. (never used)

Ratifying the amendments:

• 3/4 of the state legislatures voting in favor.
• 3/4 of the states having ratifying conventions that voted in favor. (used only once, for the 21th Amendment)

Even then, the US Constitution has been amended 27 times, or 17 times outside of the Bill of Rights, the first 10 amendments. Here is when they were submitted for ratification, and then passed:

• 1 to 10: 1789 - 1791
• 11: 1794 - 1795 ... 12: 1803 - 1804
• 13: 1865 - 1865 ... 14: 1866 - 1868 ... 15: 1869 - 1870
• 16: 1909 - 1913 ... 17: 1912 - 1913 ... 18: 1917 - 1919 ... 19: 1919 - 1920
• 20: 1932 - 1933 ... 21: 1933 - 1933
• 22: 1947 - 1951
• 23: 1960 - 1961 ... 24: 1962 - 1964 ... 25: 1965 - 1967 ... 26: 1971 - 1971
• 27: 1789 - 1992

There were four big bursts, roughly corresponding in time to various progressive eras: adoption of the Constitution, Civil War and Reconstruction, the Progressive Era, and the Sixties. This suggests that the next amendments are likely to be passed in the next big era of progressive change, one that is long overdue by historical standards.

This difficulty of amendment may be responsible for how much US constitutional law involves interpreting and reinterpreting that document, rather than amending it.

 

[Blahface]

Yes. It shouldn't be easy, but it also shouldn't be as hard as it is. Ideally, we'd have a new constitution every 30 years. High School Students should all be given a mandatory team project at the end of the senior year in which each team writes their own mock constitution.

 

[Tom Sawyer]

The US Constitution was a fine document for the late 1700s. Tacking on more amendments and trying out different interpretations of obscure passages, however, is like swapping in new parts for an old car to stop it from breaking down entirely. It's less work and there's always a subset of people who like playing around with old machines, but at some point it's time to head over to the dealership and get yourself a new one.

For the US, I think that point was about 20 years ago.

 

[arkirk]

Yes. It shouldn't be easy, but it also shouldn't be as hard as it is. Ideally, we'd have a new constitution every 30 years. High School Students should all be given a mandatory team project at the end of the senior year in which each team writes their own mock constitution.

Actually, our government should be progressive in terms of human rights, and also in terms of scientific knowledge. It should not be an anachronistic document serving to memorialize some of our worst constitutional notions such as slave owners representing their slaves. A lot of the constitution should be kept in an archive, but not reprinted and always there to remind the privileged people there was a time that was "better for them." Blahface's idea makes sense. What he is pointing to is the idea that studying the constitution should be part of everybody's PUBLIC EDUCATION.

 

[NobleSavage]

Slight derail. Many Supreme Court decision change how the constitution is applied. In that sense it's kept up to data.

 

[Tom Sawyer]

Slight derail. Many Supreme Court decision change how the constitution is applied. In that sense it's kept up to data.

But that's a really silly and inefficient way to go about it. Trying to shoehorn present-day problems into the ideas of guys who were dealing with issues from centuries ago gets exceedingly banal very quickly. Look at discussions talking about the 2nd Amendment in regards to modern weaponry or how the 4th Amendment would apply to encryption technologies and things like that. You really need Constitution 2.0 and not a patchy upgrade to version 1.7.344.

 

[arkirk]

Slight derail. Many Supreme Court decision change how the constitution is applied. In that sense it's kept up to data.

And you think this insular appointed body of super elites is the best we can do? We actually need a new constitution. I still think it would be good to have the highschool students study the constitution. They couldn't do any worse job butchering human rights than SCOTUS.

 

[T.G.G. Moogly]

Slight derail. Many Supreme Court decision change how the constitution is applied. In that sense it's kept up to data.

Actually that's no derail. The article discusses that noting that the judiciary is how the constitution has survived despite its shortcomings.

The better question is whether it's possible in such a partisan society as the U.S. to realistically expect this could happen. People are spoiled stupid. There needs to be a major calamity of some kind.

 

[NobleSavage]

Slight derail. Many Supreme Court decision change how the constitution is applied. In that sense it's kept up to data.

And you think this insular appointed body of super elites is the best we can do? We actually need a new constitution. I still think it would be good to have the highschool students study the constitution. They couldn't do any worse job butchering human rights than SCOTUS.

You think a popular vote would be better? I think you would be very disappointed with the results.

 

[arkirk]

And you think this insular appointed body of super elites is the best we can do? We actually need a new constitution. I still think it would be good to have the highschool students study the constitution. They couldn't do any worse job butchering human rights than SCOTUS.

You think a popular vote would be better? I think you would be very disappointed with the results.

I agree it would be a disappointing vote given the spotty state of public awareness. What I suggested was that highschool students study the constitution with the idea of making it more progressive. So-called popular votes today are just measurements of how well a set of advertizing campaigns have been accepted. The idea is to get students to think about what our constitution should be guaranteeing as part of PUBLIC EDUCATION. This is not being done today. When I was in JC, I took courses in journalism...mass media. While it was not a course in constitutional law, it did clarify how public opinion can be bought. Genuine education has to be separated from the bubble machine.

 

[NobleSavage]

You think a popular vote would be better? I think you would be very disappointed with the results.

I agree it would be a disappointing vote given the spotty state of public awareness. What I suggested was that highschool students study the constitution with the idea of making it more progressive. So-called popular votes today are just measurements of how well a set of advertizing campaigns have been accepted. The idea is to get students to think about what our constitution should be guaranteeing as part of PUBLIC EDUCATION. This is not being done today. When I was in JC, I took courses in journalism...mass media. While it was not a course in constitutional law, it did clarify how public opinion can be bought. Genuine education has to be separated from the bubble machine.

You think the conservatives are going to let you indoctrinate their children? Good luck. We have enough problems with them declaring that Moses was a Founding Father.

 

[Tom Sawyer]

You think the conservatives are going to let you indoctrinate their children? Good luck. We have enough problems with them declaring that Moses was a Founding Father.

Well, if he wasn't then who parted the water to allow George Washington to cross the Rubicon and stop the British from murdering all the defenceless babies?

It's called history, dude.

 

[Derec]

We actually need a new constitution.

I am pretty sure most of us would not like what would come out. Take the First Amendment. There are those on the right and left who would love to scrap it. The Left because many there support "hate speech" laws like the ones prevalent in Europe. The Right would love more religious meddling into the workings of the government. Parts of both Left and Right would love to ban porn.

Who do you propose to create this new constitution? Realistically it would be a convention delegates of which would be appointed by states. Be careful what you wish for.

 

[Loren Pechtel]

It should be hard. Most amendments are garbage.

 

[fast]

A lot of the constitution should be kept in an archive, but not reprinted and always there to remind the privileged people there was a time that was "better for them."

People are still doing the math

 

[Jason Harvestdancer]

Actually I think it was a mistake to allow the federal government to have a say in amending the constitution in the first place, and it should always have been the states doing the amending.

Now it is true that the amendments were always done by the congressional approach and never by a convention of the states, but there was almost an exception. The repeal of prohibition was going to go that route, and in order to prevent a precedent congress hastily passed that amendment.

 

[Bacillus anthracis]

Actually I think it was a mistake to allow the federal government to have a say in amending the constitution in the first place, and it should always have been the states doing the amending.

That would be disastrous on myriad levels. First, the states aren't separate little nations; they're part of a greater whole. However each has its own issues due to things like the economics that develop from geography (e.g. mining states). So what you'd have is 50 separate entities vying for their own little advantages--which would lead to a lack in uniformity in the law so vast that each state might as well be its own little nation.

As early as 1804 (or maybe it was 1809) Virginia tried to challenge the Federal Constitution by saying that State Constitutions supersede the fed. Bullshit. More recently, Arkansas tried to pull the same thing during desegregation following Brown v. Board of Education. Without one supreme document to oversee the rest of the country, you'd have wildly varying laws from state to state over which the federal government would have no power--see the Articles of Confederation and the massive weaknesses inherit in it--that's more or less what you're talking about. Anyway, the Full Faith & Credit that we now enjoy would be absolutely shredded to bits. And holy fuck, rewriting all the federal rules for civil procedure that have been refined and proven over the course of 225+ years? God. Fuck that. The separation of powers doctrines? Rewritten? No fucking way. And trying to accommodate the desires of 50 little nations in the process? Cats and dogs living together? That's just quick stuff off the top of my very weary brain.

The primary reason the thing works is because it's so sweeping and general. It gives enough latitude to the states to run their shit but at the same time provides enough federal oversight to keep the nation together. It's also proven to be relatively progressive through Amendments and reinterpretation. Scalia doesn't count. I hope someone shoves one gigantic copy of the full OED up his ass.

It may be a little hard to amend, and at this moment in time it appears un-amendable, but history tells us that won't always be so. And what should be amended that can't generally and normally be accomplished by state constitutions already? Oh, and of course state constitutions are easier to amend. They only concern that state.

 

[Jason Harvestdancer]

At the time the constitution was written, the states were very much like separate nations. In fact, in many usages, state is the same word as nation. The constitution was written by separate equal and independent states, and the federal government was created as the agent of the states.

Is Arkansas really the most recent example you can come up with to demonstrate state sovereignty claims? I know, we're supposed to always and forever condemn any states rights argument on the grounds that it was at one time used to justify racism. So the Colorado and Washington legal marijuana initiatives are racist as a result.

You also act as if leaving the amendment power in the hands of the states instead of allowing the agent, the employee, the creation of the states, to rewrite the constitution also somehow rewrites articles I, II, III, and IV. Seriously. Did you read your argument before you posted it?

 

[Jimmy Higgins]

The difficulty in updating the Constitution is probably one reason why Civil Rights keep being expanded instead of being stopped via Federal Constitutional Amendments. Image an anti-gay marriage Constitutional Amendment?

The Constitution is designed to generally keep emotion and short-term partisan enthusiasm from polluting the founding document. In all cases, excluding the 18th Amendment, it has worked very well at doing so.

 

[Bacillus anthracis]

At the time the constitution was written, the states were very much like separate nations. In fact, in many usages, state is the same word as nation. The constitution was written by separate equal and independent states, and the federal government was created as the agent of the states.

The states of the United States are not separate nations. And the disadvantages of a weak federal government soon became apparent. See the Federalist papers. In addition, if you want to know how judicial power works in the U.S., read Article III, and then see Marbury v. Madison and Martin v. Hunter's Lessee. The Constitution is the Supreme Law of the land and the Supreme Court is body that says what the law is.

Go learn civil procedure so that you can understand when an issue arises under federal question, diversity, or when a case is granted supplemental jurisdiction to be heard in federal court. Then go begin reading Eerie v. Pennsylvania railroad so that you can begin to understand when and what rights states have relative to the fed.

Is Arkansas really the most recent example you can come up with to demonstrate state sovereignty claims? I know, we're supposed to always and forever condemn any states rights argument on the grounds that it was at one time used to justify racism. So the Colorado and Washington legal marijuana initiatives are racist as a result.

The case still stands and is relevant law today. It's one that's more illustrative of the U.S. federalist system and the and what happens when a state attempts to legislate around well-established Constitutional laws.

You also act as if leaving the amendment power in the hands of the states instead of allowing the agent, the employee, the creation of the states, to rewrite the constitution also somehow rewrites articles I, II, III, and IV. Seriously. Did you read your argument before you posted it?

You need to read. I said that if states feel the need to amend something in their own constitutions, it's easier to do so, and is in within their power to do so. But if such an amendment is challenged and brought before the Court, then it is the Court that decides if it's Constitutional--not the state. Once again, see the case I mentioned following the Brown v. Board of Education. It's called Cooper v. Aaron. But if you really want to understand how the legal relationships work between the fed and state begin with Eerie v. Pennsylvania RR, then read Swift v.Tyson, and then Read Hanna v. Plumer. And make sure you have the FRCP handbook at your side. Good luck with that.

It is apparent that what you think you know about the Constitution as opposed to what is in reality actual Constitutional law are two very different things.