Lots of people would like to change the US Constitution. Take, for example, former Supreme Court Justice John Paul Stevens, who argues in a new book for six amendments, including abolishing the death penalty. Or tea party radio host Mark Levin, who advocates for “The Liberty Amendments” in a book released last year.
Now, Democrats in the Senate are adding their names to the list. They held a hearing Tuesday on an amendment that would give Congress the power to restrict political money and reverse recent Supreme Court decisions on money spent on elections.
But amending the Constitution is incredibly hard. Perhaps too hard, some people believe.
The challenge was seen at Tuesday’s hearing of the Democrat-led Senate Judiciary Committee in which majority leader Harry Reid of Nevada, and minority leader Mitch McConnell of Kentucky went head to head in a rare appearance as witnesses before the committee.
Senator Reid argued that recent Supreme Court decisions have opened “the floodgates” for corporations and billionaires to spend hidden, unlimited sums on elections, drowning out the voices of average Americans.
Senator McConnell countered that the Democrats’ amendment would suppress free speech and called the day’s process a “political exercise” to “stir up” the Democratic base to show up in November. Everyone knows, he said, that “this proposal is never going to pass Congress.”
He’s got that right. Which means it sure won’t make its way to changing the Constitution. To do that, it would have to win two-thirds approval in both the House and the Senate, and then be ratified by three-quarters of the states.
Alternatively, the amendment could be proposed at a national Constitutional Convention called by two-thirds of the state legislatures, and then ratified by three-quarters of the state legislatures. So far, no amendment has been passed in this manner.
The framers constructed this steep climb because they wanted to lock in a stable government – and the compromises that had made the Constitution so difficult to achieve in the first place. Only 27 amendments have made it up the hill to ratification in the Constitution’s history. The first 10 came in an immediate wave – the Bill of Rights. Three post-Civil War amendments expanded individual rights. The rest arrived in dribs and drabs and since 1971, in which the 26th Amendment lowered the voting age to 18, only one has made it – a small-bore one in 1992 related to congressional salaries.
It could be argued that the Founders couldn’t anticipate such a large and diverse population and such a different looking Congress – and thus not anticipate how nearly impossible it is now to change things. For instance, today’s House has 435 seats, not the 59 that it began with. Similarly, the Senate has 100 seats, not its original 20.
A stable democracy such as Germany requires only a two-thirds majority in both chambers to change its Basic Law – which it does about once a year, according to a report in Slate last month. Most states in America amend their state constitutions every couple years, Slate reports.
According to The Legal Times, Supreme Court Justice Antonin Scalia believes the bar to change the Constitution is set too high. The publication quoted Justice Scalia as saying at a National Press Club talk in April that changing the Constitution “ought to be hard, but not that hard,” adding that he would like to amend the amendment provision of the Constitution to make it easier to change the document.