December 2, 2023

Immigration Marriage

Feel Good With Immigration

The United States’ Unamendable Constitution

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White balls rolling down a deconstructed American flag

How our inability to change America’s most important document is deforming our politics and government.

Illustrations by Ben Hickey

When the U.S. Constitution was written, in 1787, it was a startling political novelty, even in an age of constitution-making. Before the Constitutional Convention, James Madison made a study of “ancient and modern confederacies,” but written constitutions were so new that he had hardly any to read. Also, no one had any real idea how long a written constitution would last, or could, or should. Thomas Jefferson thought that nineteen years might be about right. He wasn’t far wrong: around the world, written constitutions turn out to have lasted, on average, only seventeen years before being scrapped. Not the U.S. Constitution. It’s lasted more than two hundred years and hasn’t been amended in any meaningful way since 1971, more than half a century ago.

Laws govern people; constitutions govern governments. Lately, American democracy has begun to wobble, leaning on a constitution that’s grown brittle. How far can a constitution bend before it breaks? The study of written constitutions has become a lot more sophisticated since Madison’s day. A project called Constitute has collected and analyzed every national constitution ever enacted. “Constitutions are designed to stabilize and facilitate politics,” the project’s founders write. “But, there is certainly the possibility that constitutions can outlive their utility and create pathologies in the political process that distort democracy.” Could that be happening in the United States?

The question is urgent, the answer elusive. There are a few different ways to tackle it. One is to investigate the history of efforts to amend the Constitution, a subject that’s been surprisingly little studied. Working closely with Constitute, I head a project called Amend—an attempt to assemble a comprehensive archive of every effort to amend the U.S. Constitution.

Another approach is to query the public. In July, 2022, the nonprofit organizations More in Common and YouGov collaborated with Constitute and Amend to conduct a national survey. It asked a sample of two thousand Americans questions about whether the Constitution is still working, and, if it’s not, how to fix it.

In this piece, The New Yorker will be asking you some of the same questions. More than two centuries on, does the U.S. Constitution need mending?

Bouncing balls

Which statement comes closest to your view of the U.S. Constitution?

Public-opinion surveys have been asking Americans this question for a long time, as the political scientist Zachary Elkins has demonstrated. In 1937, when asked “Should the Constitution be easier to amend?,” twenty-eight per cent of those surveyed said yes, and sixty per cent said no. A half century later, in 1987, another survey asked more or less the same question, and got more or less the same answer: twenty per cent of respondents said that the Constitution was too hard to amend, and sixty per cent said that amending it was about as hard as it ought to be.

This era of contentment appears to have come to an end. In 2022, forty-one per cent of respondents said that the Constitution should be more frequently reviewed and amended, and another seven per cent that it should be entirely rewritten and replaced. Those are the over-all numbers. But the results are strikingly polarized. Seventy-two per cent of Republicans think that the Constitution is basically fine as is; seventy-two per cent of Democrats disagree.

In 1787, the men who wrote the Constitution added a provision for amendment—Article V—knowing that changing circumstances would demand revision. To amend meant, at the time, to correct, to repair, and to remedy; it especially implied moral progress, of the sort that you indicate when you say you’re making amends or mending your ways. The idea for an amendment clause, a constitutional fail-safe, came from the states, where people demanded that their constitutions be revisable, “to rectify the errors that will creep in through lapse of time, or alteration of situation,” as one town meeting put it. No single article of the Constitution is more important, the Framers believed, because, if you couldn’t revise a constitution, you’d have no way to change the government except by revolution.

Without Article V, the Constitution would not have been ratified. But, from the start, most amendments failed, and were meant to. Amending the Constitution requires a double supermajority: an amendment introduced in Congress has to pass both houses by a two-thirds vote, and then must be approved by the legislatures of three-quarters of the states. Also, a lot of proposed amendments are horrible. In March, 1861, weeks before shots were fired at Fort Sumter, Congress passed a doomed amendment intended to stop the secession of Southern states: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” Others have been silly, like the amendment, proposed in 1893, that would have renamed the country the United States of the Earth. And plenty have been perfectly reasonable but turned out to be unnecessary. The Child Labor Amendment proposed to give Congress the “power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” It passed Congress in 1924 and went to the states for ratification, where it failed; later, child labor was abolished under the terms of the Fair Labor Standards Act of 1938.

More than ten thousand amendments have been introduced into Congress. Many more never made it that far. Only twenty-seven have ever been ratified and become part of the Constitution. Looking at them all at once, straight off, you can see patterns. Most successful amendments involve a constitutional settlement in the aftermath of a political revolution. Ratifications have come, mostly, in flurries: first during the struggle over the Constitution itself, when its critics secured ratification of amendments one through ten, the Bill of Rights; then during the Civil War and Reconstruction, a second founding, marked by the ratification of amendments thirteen through fifteen; and, finally, during the Progressive Era, when reformers achieved amendments sixteen through nineteen. Scattered amendments have been ratified since, notably the Twenty-fifth, which established a procedure in the event of Presidential debility, and the Twenty-sixth, which lowered the voting age to eighteen. The Twenty-seventh Amendment, concerning congressional salaries, was ratified in 1992, but it was first proposed in 1789. All of these have been one-offs, rather than part of efforts to constitutionalize political revolutions.

Amending the Constitution

Since 1789, members of Congress have introduced more than ten thousand proposals to amend the Constitution. Nonetheless, only twenty-seven amendments have ever been ratified, giving the United States one of the lowest amendment rates in the world. The rest are “discards,” amendments that failed.

In this time line, amendment proposals are grouped by congressional session and ordered by the year they were introduced as bills.

It’s always been hard to amend the Constitution. But, in the past half century, it’s become much harder—so hard that people barely bother trying anymore. Between 1789 and 1804—fifteen years—the Constitution was amended twelve times. Between 1805 and 2022—two hundred and seventeen years—it’s been amended only fifteen times, and since 1971 only once. The Framers did not anticipate two developments that have made the double supermajority required of Article V almost impossible to achieve: the emergence of the first political parties, which happened in the seventeen-nineties, and the establishment of a stable two-party system, in place by the eighteen-twenties. As John Adams complained, in 1808, “the Principle Seems to be established on both Sides that the Nation is never to be governed by the Nation: but the whole is to be exclusively governed by a Party.” This state of affairs raised the bar for amending the Constitution. The current era of party polarization, which began in the early nineteen-seventies, has raised the bar much, much higher.

How high? Political scientists talk about the “amendment rate”—the number of amendments to any given constitution, per year. Divide twenty-seven ratified amendments by two hundred and thirty-three years and you get 0.12, the U.S. amendment rate. It is one of the lowest rates in the world.

What effect is that having on American politics and government? Consider the Electoral College. Proposals to reform or abolish the Electoral College have been introduced in Congress more than seven hundred times since 1800, and electing the President by popular vote has enjoyed a great deal of popular support for the past half century or so. In 1967, sixty-five per cent of Americans were in favor of it. And support has remained at about the same level ever since—with the exception of a notable dip in 2016.

What do you think?

Bouncing balls

As you may know, Presidents are chosen not by direct popular vote but by the Electoral College system, in which each state receives electoral votes based on its population. In the 2016 election, for example, Hillary Clinton won the popular vote, and Donald Trump won the Electoral College vote. Would you favor passing a constitutional amendment that would determine the winner of future Presidential elections by popular vote, or would you rather continue the current system, which determines the winner by Electoral College votes?

The More in Common/YouGov 2022 survey suggests that, if a constitutional amendment to abolish the Electoral College were a matter of public opinion, it would win, forty-seven per cent to thirty-five. Support, however, varies by party: seventy-three per cent of Democrats want to abolish the Electoral College, and sixty-three per cent of Republicans want to keep it. Such an amendment doesn’t seem to lie in the realm of the possible. Accordingly, most people interested in this reform have sought instead to increase the size of the House of Representatives, and to admit Puerto Rico, the District of Columbia, and Guam to statehood—both measures that would alter the number of delegates to the Electoral College. Meanwhile, domestic tranquillity remains elusive. In two of the past six Presidential elections, 2000 and 2016, the winner of the popular vote has lost the Presidency; in the aftermath of the 2020 election, supporters of the loser staged an armed insurrection at the Capitol.

An unamendable constitution is not an American tradition. U.S. state constitutions are much easier to amend than the federal Constitution. The average amendment rate of a U.S. state is 1.23; Alabama’s constitution has an amendment rate of 8.07. A high amendment rate is generally not a sign of political well-being, though, since it comes at the cost of stability. Also, it can be disastrous in states where constitutions can be amended by a popular referendum: research suggests that the language of ballot initiatives is so mealy-mouthed that many voters, confused or misled, end up casting votes that go against their actual preferences. It’s a Goldilocks problem. You don’t want your constitution to be too hard to amend, but you don’t want it to be too easy, either.

Making the Constitution easier to amend would itself require a constitutional amendment, which means it’s not going to happen. But what if it could? The most radical way to make amending easier would be to drop the supermajority requirements, allowing Congress to pass proposed amendments by a simple majority, and then sending them not to state legislatures for ratification but to the whole of the people, by way of a national popular referendum. I’m not proposing this. No one is, not even the far-right movement—a descendant of the Tea Party—that calls for a second Constitutional Convention. Still, it’s a worthwhile thought experiment. Would the eighty-five per cent of liberals who would like to make the Constitution easier to amend be happy with the results?

Consider, for instance, the hot-button issue of immigration. Amendments to repeal birthright citizenship—a guarantee of the Fourteenth Amendment—have been introduced into Congress at least twenty times since 1991. Red states whose governors have taken strong anti-immigration positions—including Greg Abbott of Texas and Ron DeSantis of Florida—might well support amendments to their state constitutions limiting the rights of immigrants. And it’s easy to imagine a national initiative.

Bouncing balls

Would you favor or oppose the following? A constitutional amendment that would deny the children of undocumented immigrants, tourists, and temporary residents automatic U.S. citizenship?

Terrifyingly, using a referendum-based system, a federal constitutional amendment ending birthright citizenship would be only very narrowly defeated, forty-nine per cent to fifty-one, according to the poll conducted by More in Common and YouGov.

You could ask the same question of abortion. This summer, Kansas voters struck down a proposed state constitutional amendment banning all abortions. This November, voters in California, Michigan, and Vermont will vote on amendments to their state constitutions guaranteeing a right to abortion. What would be the result if abortion were put to a national popular referendum?

Bouncing balls

Would you favor or oppose the following? A constitutional amendment guaranteeing the right to access abortion.

Surveys aren’t binding. They’re not even especially reliable. But this 2022 survey offers at least a glimpse of what might happen if a slate of constitutional amendments were voted on in a nationwide referendum this year. A constitutional amendment to restrict abortion would likely be ratified, fifty-one to forty-nine—and yet, paradoxically, a constitutional amendment to guarantee a right to abortion would also be ratified, fifty-seven to forty-three.

Under the current rules, no federal abortion amendment could possibly be ratified. No proposal, in either direction, is going to earn a two-thirds majority in both houses. But that doesn’t mean that the Constitution isn’t being changed on this question. Instead, it’s undergoing a massive change by way of constitutional interpretation, in the hands of the Supreme Court.

“Nothing new can be put into the Constitution except through the amendatory process,” Justice Felix Frankfurter declared, in 1956, and “nothing old can be taken out without the same process.” That’s not strictly true. The Constitution has become unamendable, but it has not become unchangeable. Its meaning can be altered by the nine people who serve on the Supreme Court. They can’t rewrite it, but they can reread it.

The Framers did not design or even anticipate this method of altering the Constitution. They didn’t plan for judicial review (the power exercised by the Supreme Court to review the constitutionality of legislation), and they thought they’d protected against the possibility of judicial supremacy (the inability of any other branch of government to check the Court’s power).

As with the filibuster, whether you like judicial supremacy generally depends on whether your party’s in power or out. The Court is the least democratic branch of government. But it also has the ability to protect the rights of minorities against a majority. In the nineteen-fifties, because Jim Crow laws meant that Blacks in the South could not vote, it proved impossible to end segregation through electoral politics or a constitutional amendment; instead, the N.A.A.C.P. sought to end it by bringing Brown v. Board of Education to the Supreme Court. Since then, the Court has implemented all sorts of constitutional changes: it has secured the rights of criminal defendants; established rights to contraception, abortion, and same-sex marriage; declared corporate campaign donations to be free speech; and interpreted the Second Amendment as restricting the government’s ability to regulate firearms. Which of these you believe to be bad decisions and which good depends on your position on all manner of things. But, unlike a constitutional amendment, every decision the Court makes it can reverse, the way that, this year, in Dobbs v. Jackson Women’s Health Organization, it overturned Roe v. Wade, from 1973. (You can reverse a constitutional amendment, but only with another one: that’s how Prohibition ended.)

In 2002, Congress considered a proposed amendment that read, “Marriage in the United States shall consist only of the union of a man and a woman.” Introduced again and again in subsequent congressional sessions, it went nowhere. Instead, in 2015, in Obergefell v. Hodges, the Supreme Court determined that same-sex marriage is constitutionally guaranteed under the equal-protection clause of the Fourteenth Amendment. Given the direction the Court is headed, will that ruling be enough to protect that right? Alternatively, if this question, too, were submitted to a national popular vote, how would Americans lean?

Bouncing balls

Would you favor or oppose the following? A constitutional amendment guaranteeing the right to marry of any two adult citizens, regardless of sex or gender.

Much depends on how survey questions are phrased. But the survey data suggest that, in a referendum, a constitutional amendment banning same-sex marriage would be defeated, thirty-five per cent to sixty-five, while a constitutional amendment guaranteeing same-sex marriage would be ratified, sixty-two to thirty-eight.

Reversing Roe v. Wade did not require a constitutional amendment (even though many were proposed). Instead, it required something even more extraordinary: a wholly new mode of constitutional interpretation. Roe built on a 1965 case, Griswold v. Connecticut, which protected access to contraception under a right to privacy. After Griswold, conservative critics of the Court began to devise an approach to constitutional interpretation custom-built to defeat it: the jurisprudence of originalism. Robert Bork first proposed its framework in 1971, in an essay in which he argued against Griswold. Originalism undergirds one of the most radical constitutional reversals in recent American history: the reinterpretation of the Second Amendment as protecting an individual right to bear arms, as opposed to the right of the people to form militias. (Bork himself disagreed with this reinterpretation, which has been advanced by the N.R.A.) This spring, in the Bruen case, the Court reinforced its N.R.A.-informed interpretation of the Second Amendment. What would happen if the Second Amendment were put to a referendum?

The Second Amendment currently reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Which revised version, if any, would be closest to your preference?

There’s a good reason that American constitutional amendments are not decided through national referendums. (Consider, after all, that Brexit was decided by a national popular referendum.) “A nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato,” Madison wrote, in Federalist No. 49. “The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society.” If the question of whether the government can regulate the possession of firearms were put to the people, and the people were evenly divided, what would be the consequence? Madison worried that putting constitutional matters to the people directly was an experiment “of too ticklish a nature to be unnecessarily multiplied.” Then again, plainly the people ought to have a greater role than they have when no amendments are any longer even sent to the states.

All sorts of ideas are floating around for how to shake things loose. Constitutional populists—Tea Partiers, Trumpists, and other conservatives, from Rick Santorum to Greg Abbott—have rallied around a proposal to revise the Constitution by way of a provision in Article V that’s never been used, and which holds that the country, “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” Nineteen state legislatures have made some version of that application; thirty-four are required. Since 2013, this effort has been headed by the Convention of States project, funded in part by the Koch brothers. A new book, “The Constitution in Jeopardy,” co-authored by the former Democratic senator Russ Feingold, warns that, if Republicans win a few more state legislatures in this year’s midterms, a convention that could gut the Constitution, or at least the federal government, is around the corner.

If you could fix Article V, how would you do it? In 2020, the National Constitution Center asked three teams of experts—constitutional lawyers, mostly, divided into teams of libertarians, conservatives, and progressives—to draft a new constitution. The libertarians, who joked that “all we needed to do was to add ‘and we mean it’ at the end of every clause,” left Article V alone. The conservatives decided to make their constitution easier to amend (“but not too much easier”) by lowering the voting requirement in Congress from two-thirds to three-fifths, and in the states from three-fourths to two-thirds. And the progressives came up with a plan under which amendments could be proposed “not just by two-thirds of members of each House (or two thirds of states) but by Members of each House (or states, for constitutional conventions) representing two-thirds of the U.S population.” Think of it as an amendment caucus; if an amendment succeeded in Congress, it could then be ratified either by three-quarters of the states (the way things are now) or “by states representing three-fourths of the population.” No one is calling for constitutional amendment by national referendum.

Americans aren’t going to amend Article V anytime soon because we’re not going to amend any part of the Constitution anytime soon. In the end, the really interesting question isn’t what would happen if the people could amend the Constitution by popular vote but what actually happened, in the first place, to cripple Article V, and give the Supreme Court superpowers.

The Constitution became effectively unamendable in the early nineteen-seventies, just when originalism began its slow, steady rise. The Twenty-sixth Amendment, which was ratified in 1971 and lowered the voting age from twenty-one to eighteen, an antiwar-movement objective, turned out to be the only amendment that constitutionalized an aim of one of the political revolutions of the sixties—the women’s movement, the civil-rights movement, the gay-rights movement, and the environmental-rights movement. People did not see that coming: they expected those movements to result in amendments.

In 1970, the civil-rights activist, constitutional theorist, and Episcopal priest Pauli Murray told the Senate Judiciary Committee that the passage of the proposed Equal Rights Amendment, barring discrimination on the basis of sex, was essential to ending what Murray referred to as Jane Crow, and to inaugurating a new and better era in the history of the nation’s constitutional democracy:

The adoption of the Equal Rights Amendment and its ratification by the several States could well usher in an unprecedented Golden Age of human relations in our national life and help our country to become an example of the practical ideal that the sole purpose of governments is to create the conditions under which the uniqueness of each individual is cherished and is encouraged to fulfill his or her highest creative potential.

That, of course, did not come to pass. No golden age ever does. In 1972, Congress passed the Equal Rights Amendment and sent it to the states, where most observers expected that it would secure quick ratification. But, in 1973, the Supreme Court issued its opinion in Roe v. Wade. And conservatives began a decades-long campaign to advance originalism, reverse Roe, and defeat the E.R.A. by arguing, as Phyllis Schlafly did, that “the E.R.A. means abortion.” Every significant amendment attempted since has failed. And, although efforts are ongoing to revive the E.R.A., so far they haven’t succeeded, either.

Polarization weakened Article V. But the Constitution really snapped when it became too brittle to guarantee equal rights to women. Liberals gave up on constitutional amendment; conservatives abandoned it in favor of advancing originalism. Still, nothing’s broken that can’t be mended. It’s a question, now, of how. ♦

White balls rolling down a deconstructed American flag