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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