Monday, May 5, 2014

The U.S. Constitution Is Impossible to Amend

by Eric Posner


May 5, 2014

In his new book, Six Amendments: How and Why We Should Change the Constitution, John Paul Stevens argues for amending the Constitution to promote democracy and rights. Stevens, who served on the Supreme Court from 1975 to 2010, knows a lot about the nation’s founding document and thinks that it needs a major retooling. He’s right that there are many problems with it. But he’s wrong to think that amending the Constitution is the solution. He’s wrong because it is nearly impossible to enact new amendments. That is the problem that needs a solution.

Stevens wants to abolish the death penalty, allow for more gun control and campaign finance regulation, and give judges the power to block gerrymandering. He would also allow the federal government to order around state officials and enable people to sue state governments for damages. The six amendments he proposes would overturn Supreme Court decisions, many of which Stevens dissented from when he served on the court.

In most countries, we could seriously consider the changes to the Constitution that Stevens proposes—or, for that matter, a different set of amendments from the Tea Party. But in our country, we can’t. Any proposal to amend the Constitution is idle because it’s effectively impossible.

The problem starts with Article 5 of the Constitution. It provides that an amendment can be proposed either by a two-thirds majority in both the House and the Senate or by a convention, called into being by Congress, after a request from two-thirds of the states. That’s version A and version B of step one. If an amendment makes it through either one, then comes step two: ratification by three-quarters of the states. In other words, an amendment requires a supermajority twice—the pig must pass through two pythons. By contrast, ordinary legislation requires the approval of a simple majority in each house.

The founders made the amendment process difficult because they wanted to lock in the political deals that made ratification of the Constitution possible. Moreover, they recognized that, for a government to function well, the ground rules should be stable. But they also understood that the people will need to change those ground rules as new challenges and problems surface with the passage of time. They didn’t mean for the dead hand of the past to block necessary progress.


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