Amending the US Constitution: Finding the Right Balance

[anorlunda]

Here's a topic other than COVID that might be fun to debate.

https://lawliberty.org/scalia-and-ginsburg-on-constitutional-amendments/

But, he [Scalia] explained, he once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. “It ought to be hard, but not that hard.”

So the trick is to make it easier, but not too easy.

How hard/easy should it be? What should the procedure be?

For purposes of this thread:

1. Let us not write about what amendments we would like or not like, but rather focus on the level of difficulty making changes.
2. Lets assume that the political majority pendulum will swing left-right-left-right-left-right indefinitely.
3. Remember that once we start amending, absolutely everything about government structure and human rights becomes changeable. Amending the Constitution is unlike changing laws.

 

[jedishrfu]

How did Scalia come up with that percentage number? Is it from one state failing to ratify an amendment and then looking for the state with the least number of people?

Or more likely is it simply one party in the house or senate holding out so the amendment can't get its 2/3 majority vote? that would make it about 34 people in the Senate then.

 

[phinds]

Changing the rules of how amendments are passed would, itself, be an amendment and I think that such an amendment would not make it even as far as the ERA did.

 

[BillTre]

There is more than one pathway to changing amending the constitution:
New amendments
https://www.cbpp.org/research/states-likely-could-not-control-constitutional-convention-on-balanced-budget-amendment-or

 

[Vanadium 50]

How did Scalia come up with that percentage number?

It's 51% of the population of the 13 smallest states. 2.3%

However, that is too large. If 13 governors with veto power are opposed, that's enough. 0.000004%.

 

[russ_watters]

So the trick is to make it easier, but not too easy.

How hard/easy should it be? What should the procedure be?

I don't see how this is going to work within our anti-politics guidelines since I don't think we've actually evolved past the federalist/anti-federalist debate on which the Constitution was largely premised, but I'll give it a shot...

I am largely an originalist and I believe the Constitution itself is primarily a structural/organizational document, free from political components except for the basic separation of powers on which it is largely premised, as noted above. In that sense, I don't see a need for many/frequent amendments, as amendments should be intended to fix clear structural flaws, not address the down-in-the-weeds issues of the day. Many of the amendments are of this type and are not inerrently political in nature, at least when viewed from a distance.

In my perception, most of the amendment proposals I've seen have been intended largely to bolster political positions, not address structural problems, and I think enabling it to be politicized would be a very bad idea. The benefit of a difficult process in a two-party system is exactly that there has to be broad cross-party consensus that an amendment is necessary.

So I don't think there is a problem here in need of solving.

 

[Vanadium 50]

The threshold for amendment is high. One can look at oddball edge cases, but typically it needs ~70% support. The number of state "no" votes is quite low: about a dozen over 27 amendments.

Amendments can be grouped into three categories:

1. Amendments that alter the structure of government. For example, the 12th, which had the president and vice president elected together, rather than have the vice-president the runner-up.
2. Amendments that limit what the federal government can do, even with a strong majority. Example is the 3rd: the US government cannot require the quartering of soldiers in private homes, even if there is widespread agreement that this is a good idea.
3. Amendments that establish federal law to supersede state laws: the Reconstruction amendments and Prohibition (and its repeal)

I think all three of these should have a high bar.

Is the bar too low? Suppose instead of 75% of the states, it was 85%. Would anything have changed? No. You need to go to 87%, when the 12th would have failed. (But I suspect would eventually have passed) The next threshold was 92% with the 16th Amendment. (Income tax)

What about too high? If it were 70%, the Congressional Apportionment Amendment would have passed, however it was mathematically inconsistent and could not be implemented. However, 435 representatives (the present number) is within the scope of the amendment, so it's hard to say it made a difference.

At 65% the Titles of Nobility Amendment would have passed. Bob Hope would not be Sir Bob Hope.

At 58% the Child Labor Amendment would have passed, however, it was unnecessary because FLSA regulates it despite the Amendment's failure.

I won't comment on the ERA because it is complicated (some states have revoked their votes, and there is differing legal opinions on whether this is possible), it is still in play, and there are differing opinions on what it would change.

My conclusion is that the bar is more or less in the right place in that small changes would have no effect and large changes would have only a minimal effect.

 

[Vanadium 50]

And as a PS, with the exception of the Congressional Apportionment Amendment (which is mathematically goofy and is best understood as an attempt for the large states to get more power) all the amendments that ran into ratification trouble were of my Type 3.

 

[TeethWhitener]

Changing the rules of how amendments are passed would, itself, be an amendment

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2010183
Allegedly, during Kurt Godel's US citizenship exam, he told the examiner that he had discovered a flaw in the Constitution that would allow the US to become a dictatorship (the examiner, a personal friend of Einstein's, cut Godel off so as not to jeopardize his chances at citizenship). There has been a great deal of speculation as to what exactly "Godel's loophole" was, but the consensus is that it has something to do with Article V, the article laying out the amendment process, because of its potential self-referential nature.

 

[hutchphd]

However, that is too large. If 13 governors with veto power are opposed, that's enough. 0.000004%.

I believe the signature of the governor is not required...only the approval of the state legislatures.

 

[Vanadium 50]

I believe the signature of the governor is not required...only the approval of the state legislatures.

But if it is done by ratifying conventions, a la the 21st, and the governor blocks this. Not so sure what happens in this case.

 

[anorlunda]

I started this thread out of curiosity. If we could move the bar, how could we decide where to place it? I like @Vanadium 50 's approach of studying failed amendments from the past, and seeing how many votes they got. He cited several negative examples, but there must be positive ones too. His method is perhaps as close as we'll ever get to having a rational way to decide.

Thanks V50.