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Why the Constitutional Amendment Process Needs to Change

Connor Moore ’18, Sports Editor

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The Constitution of the United States is constantly at the center of political discourse and heated debate. The Second Amendment has come under increasing scrutiny in the wake of recent mass shootings at schools and various public venues, and some aim to amend the amendment to exclude assault-type weapons or even to repeal the amendment entirely. I will not here argue for one side or the other of this debate, but I think an important piece of the puzzle has been left by the wayside, that being the amendment ratification process itself. As it stands, the current process required for amending the Constitution leaves the deck stacked against any kind of constitutional change, one way or the other.

To sum up the current amendment process, Article V of the Constitution stipulates that an amendment must be ratified in a two-step process that involves 1. Both Congressional houses adopting the proposed amendment by a 2/3 vote or a convention of the States called by Congress adopting the proposed amendment, and 2. 3/4 of state legislatures or ratifying conventions in 3/4 of the states ratifying the proposed amendment.

Now, it is considered a mortal sin by some to agree with the late Supreme Court Justice Antonin Scalia on anything. While I certainly do not see eye-to-eye with him on all matters of law or Constitutional jurisprudence, I do join him in advocating for a redesign of the Constitution’s amendment ratification process. In a 2014 interview in which he advocated for a change in the amendment process, Scalia surmised that, in theory, it could take a ‘no’ vote from only about two percent of the population to prevent an amendment’s ratification, a mighty obstacle indeed. According to the United States Senate, there have been approximately 11,699 proposed measures to amend the Constitution as of January 2017. A total of 27 of these have passed over the course of over 200 plus yeas and 114 plus Congresses, a success rate of about 0.2 percent. Of course, only a very small proportion of amendment proposals actually make it out of Congressional committees and get put to a vote among the states, but even so the success rate for proposals that make it that far is not exceptionally high.

Do I think that the ratification process should be particularly easy? Certainly not. The process needs to be sufficiently hard such that a sizeable majority of the American people need to agree that the amendment should be ratified. At the same time, requiring the assent of 2/3 of both Congressional houses and 3/4 of the 50 states to ratify an amendment has proven to be a largely insurmountable obstacle to introducing significant change to the Constitution. To be sure, this process worked well when the country’s population was small and the states were few in number, but now that we have 50 states and a population of over 300 million, this process is probably outliving its usefulness.

Now, the argument could be made that easing up on the requirements for ratification would make it too easy to pass amendments that could end up being more harmful than helpful and that the current process ensures that only the best of the best proposals make it through to be added to Constitution. I would counter that it would be just as easy to repeal a harmful amendment as it was to pass it in the first place. Regardless of which side of any given Constitutional issue you are on, I think it can be agreed that a change to the amendment process is warranted so that any necessary constitutional change, in one direction or the other, is feasible.

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6 Comments

6 Responses to “Why the Constitutional Amendment Process Needs to Change”

  1. Miles Fortis on April 6th, 2018 8:21 am

    If one wants to make changing the amendment process easier, so as to eliminate the 2nd amendment, all you have to do is amend the constitution, by the current method.

    The process was made ‘difficult’ on purpose. Any proposal has to have not just ‘wide’ but also ‘deep’ support nationwide, not just the support of a partisan element.

  2. Bill Walker on April 6th, 2018 9:38 am

    You learn more about an Article V Convention at http://www.foavc.org.

  3. John De Marco on April 6th, 2018 10:19 am

    Well I think you are correct. That pesky 1st amendment needs to go also. I mean who needs these ignorant folks going off on subjects that they have little knowledge of. Maybe journalists need to pass a fact test and be licensed to make sure they only report facts without bias. I’ll be dead before they get rid of the second amendment but I wish I could see the carnage that follows. Remember all animals are equal, but some are more equal. And believe me the government is not your friend.

  4. jack burton on April 6th, 2018 10:47 am

    And ~this~ is why we have mandatory age requirements on our representatives and Senators in Congress. A little maturity and wisdom gained thru experience goes a long way towards tamping down hair-brained ideas.

  5. JOHN Q PUBLIC on April 6th, 2018 1:03 pm

    The purpose of the difficulty of amending the constitution is so that 51% of the people cannot vote away the inalienable rights of the other 49%. Making it easier to pass amendments will significantly alter the idea of a republican form of government.

  6. Jonah Hirsh on April 6th, 2018 6:28 pm

    Don’t mess with what ain’t broken.

    It’s that difficult for a reason, which we see every day – emotionally-driven irrational pressure to change it.

    The structure was designed to foreclose that nonsense, and we should thank God the Founders had the foresight and ingenuity to make it so.

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Why the Constitutional Amendment Process Needs to Change