By Will Portman
On Monday, I went to a talk at the Brookings Institution entitled “America’s Dysfunctional Politics: Is the Constitution to Blame?” Professor Sanford Levinson of the University of Texas School of Law discussed his new book, Framed: America’s 51 Constitutions and the Crisis of Government, which argues that the 225-year-old U.S. Constitution is an inadequate framework for a government capable of effectively responding to the challenges of the 21st century.
In his book, Levinson focuses on reforming what he calls “the Constitution of settlement” rather than “the Constitution of conversation.” The former consists primarily of structural provisions like the Electoral College, whose textual meaning is clear (you can really only read it one way) even if its normative implications are subject to debate (for example, why should the loser of the popular vote be able to become president over the winner of the popular vote?). The latter consists of more abstract provisions like the commerce clause, whose basic textual meaning is subject to debate, and indeed will be debated, heatedly, in a couple weeks, as the Supreme Court hears arguments regarding the constitutionality of the Affordable Care Act.
One change Levinson would make to the “Constitution of settlement,” in addition to eradicating the Electoral College in favor of a national popular vote/runoff system, moving Inauguration Day closer to Election Day in order to minimize the lame duck period, and bringing more proportional representation to the Senate, among a host of other proposals, is making it easier to propose and ratify amendments.
In his previous book, Our Undemocratic Constitution, Levinson claims that “the United States Constitution is the most difficult to amend or update of any constitution currently existing in the world today.” Indeed, there are some pretty significant hurdles to clear in order to change our founding document.
As stipulated in Article V, in order to propose an amendment for ratification, two-thirds of both houses of Congress must approve it (alternately, two-thirds of state legislatures can call on Congress to hold a national convention for the purpose of proposing an amendment, but this method has never been used). Then, to ratify an amendment, three-fourths of the state legislatures — that’s 38 state legislatures — must approve it (alternately, ratifying conventions in three-fourths of the states can approve it, but this method has only been used once, to repeal Prohibition).
Over the years, of the thousands of amendments that have been proposed in Congress, only 33 have obtained the necessary two-thirds vote in both houses of Congress to go to the states for ratification, and of those 33, only 27 have been ratified.
While of course amending the Constitution should be more difficult than passing a law, since amendments can redefine individual rights and determine the very parameters within which government can operate and laws can be passed, it also shouldn’t be virtually impossible. Throughout American history, amendments from the Bill of Rights to the abolition of slavery to the granting of women’s suffrage have contributed to the Founders’ vision of a nation continually striving to become a more perfect union, and demonstrated that there are times when it’s appropriate to amend the Constitution. I feel that this is one of those times, but I’m concerned that the process of amending the constitution is too difficult a task for our bitterly divided political system to manage.
The country’s fiscal situation is dire. We’re sliding seemingly inexorably toward a debt crisis, piling up deficits in excess of a trillion dollars year after year, and watching our national debt creep past our annual GDP for the first time since the special case of World War II. Congress and the President have been woefully unable to come up with any comprehensive solution to our fiscal problems and it’s unlikely, given the fierce polarization and ideological entrenchment of our time, that they will any time soon. It is becoming increasingly clear that a Balanced Budget Amendment (BBA), which would forcibly impose fiscal discipline on Congress, mandating that expenses not exceed revenue and capping spending at a certain percent of GDP (while allowing for deficit spending in the event of national crises), may be the only way to chart a course back to solvency.
The vast majority of Americans support a BBA. Recent polls have shown that somewhere between two-thirds and three-fourths of Americans are in favor of the idea. 49 out of 50 U.S. states (all but Vermont) already have such a provision in their constitutions, as do countries like Germany and Switzerland, whose solvent governments stand in contrast to much of the rest of Europe.
So what’s holding us back? Article V. Simply put, it’s too hard to amend the Constitution given our current politics.
In 1995, back in those halcyon days when the national debt was a mere $5 trillion, a paltry 65% of GDP, a BBA proposal passed the House 300-132, but failed in the Senate because it only garnered 66 votes, one vote shy of the two-thirds majority required. Imagine what better shape our nation’s finances would be in today had just one more Senator (perhaps the sole Republican “nay,” Sen. Mark O. Hatfield of Oregon) voted yea, and the states had gone on to ratify the amendment.
As I noted earlier, there should be significant barriers to amending the Constitution. It shouldn’t be as easy as passing a law. But it also shouldn’t be virtually impossible. We need to find the golden mean between these two extremes, making it marginally easier to amend the Constitution in order to meet our present governing needs.
In the past year, the federal government has barely been able to avoid a government shutdown and a default on the national debt. Our current politics is too weak and fractured to manage the passage and ratification of a constitutional amendment under the Article V system. It needs to be a little easier to amend the Constitution, in order to make amendments a realistic option in today’s political world. Ironically, however, it would require a constitutional amendment to amend the amending process — a sort of meta-amendment — and of course, that’s probably pretty unlikely.