Five Constitutional Amendments for Right Now
Readers of this newsletter are frequently reminded of the shortcomings of the US form of government:
- A generational conservative shift at the Supreme Court is upending precedent to erode abortion rights and enshrine gun rights;
- An intractable minority in the Senate can filibuster most meaningful change, particularly on climate change;
- Gerrymandering means politicians are picking their voters rather than the other way around.
The format feels immovable; the country has outgrown a Constitution there is no hope of changing.
So it might be a surprise to read this edition focused on how the Constitution has changed for the better and might promise new changes sooner than you think.
After picking up the recently published book The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union, I was surprised at the optimism from authors John Kowal and Wilfred Codrington III of the Brennan Center for Justice at NYU Law.
I talked to Kowal about what’s happening now and why he’s optimistic about the future. Key portions of our phone conversation, edited lightly for flow, are below.
People should try to do big things
WHAT MATTERS: First, briefly talk about these decisions on abortion and guns recently and whether addressing them will require changing the Constitution.
KOWAL: We wrote the book to challenge the kind of pervasive sense of defeatism about amending the Constitution where people assume it’s not even worth trying. We tried to tell the story of how amendments have come in waves for the most part, and so there can be long periods where it feels impossible to amend the Constitution similar to the way it feels today. But then, certain conditions lead to a shaking of the tectonic plates, if you will, and in a very short period of time there can be three, four or five amendments.
The heart of the Constitution is in the changes
WHAT MATTERS: You point out in your book that the Constitution was written by 55 men over four months, hundreds of years ago, but much of what we consider the heart of the document at this point comes from the 3,000 words that have been added afterward, and some of those even in our lifetimes. Explain that.
KOWAL: So when we talk about the Constitution, people tend to focus on those four months in 1787 and it is a remarkable story of people with very different views and priorities coming together on a compromised Constitution.
But it’s rarely taught in school that more than 40% of the Constitution was written after 1787 in the form of these 27 Amendments. These amendments, over time, have made the Constitution a more progressive document by making it more democratic, more inclusive and more suited to the needs of a changing country.
The framers … expected the Constitution would be amended, and in fact, the generation that wrote the Constitution, approved 12 amendments to the Constitution in a short period of time, so they didn’t expect it to be rare. They expected it to be a little difficult but not impossible.
But legislation can’t even get past the filibuster.
WHAT MATTERS: Amending the Constitution requires a lot.
First, either 2/3 vote of both houses of Congress (that’s a higher threshold than the 60-vote filibuster in the Senate) or 2/3 of state legislatures calling a convention.
Second, passage by either legislatures or special conventions called in 3/4 of the states.
Meaningful legislation can’t even get past the filibuster in the Senate.
Why should we be focusing on doing something that’s more than what seems possible today?
KOWAL: The filibuster is a real and unfortunate impediment to democratic action, because it allows a minority to block action. But if you eliminated the filibuster today, which would be a salutary change, it would open the door to all kinds of legislation that has been stuck, but it wouldn’t actually necessarily allow for certain fundamental changes that can really only be done by amending the Constitution. For example, changing the Electoral College would require amending the Constitution; 60 senators can’t will it away.
Why this could be the end of a dry spell
WHAT MATTERS: You put the 27 amendments into four essential waves. There’s the Bill of Rights amendments, the Reconstruction amendments, this era of progressive amendments and then the Civil Rights era amendments. What era are we in right now?
KOWAL: I would say that we’re at the end of the fourth long dry spell. After the Bill of Rights era it was 61 years before another amendment was added to the Constitution.
And then after the Reconstruction amendments, it was four decades until the progressive amendment era.
And then it was another four decades until the ’60s and the Civil Rights era where there was this permanent change.
As of now, it’s been 50 years. … So if past is prologue, we’re in the what might be the end stages of just the cyclical dry spell. … There are indicators that suggest that in the foreseeable future, not immediate future, but foreseeable future that there could be a dramatic opening for new amendments.
These indicators point to amendments?
WHAT MATTERS: What are the indicators that you see?
KOWAL: So we talked about certain indicators that come up time and again.
One, of course, is unhappiness with the Supreme Court that that blocks progressive change and democratic action.
Another, and this is a counterintuitive point, is that long periods of gridlock and closely divided government tend to lead to a frustration that over time forces people to turn to more drastic remedies. When short term change is thwarted, people start to focus on the long term.
If you were to analogize today to another period in history I would look at the period of the late Gilded Age – the late 19th century and early 20th century.
- Then, as now, the country was sharply polarized along regional lines. At that time, it was the East and West versus the heartland. Today, it’s the Red State/Blue State divide. The politics was gridlocked.
- There were many closely fought elections for president.
- Party control of Congress switched every few years throughout that period.
- There were two elections in which the Electoral College delivered the presidency to someone who did not win the popular vote.
Also, at that time, there was dramatic change. And that’s another indicator that sometimes periods of dramatic social and cultural transformation lead to pressure for change. So then, as now:
- immigration was changing the face of the country in a way that stirred up tremendous anxiety;
- new technologies were transforming the way people lived;
- economic inequality was increasing dramatically.
We talked about the story of the of the 16th Amendment, the income tax amendment, which is very much driven by popular outrage that the rich dominated politics – the rich and corporations – and they made sure that they paid no taxes and that almost the entire tax burden was borne by poor people. We described in the book how an ordinary working person was spending two thirds of their income on taxes hidden in the form of tariffs and other regressive taxes.
The other indicator, and that is highly relevant, if you look at the Gilded Age period, progressive reform was being blocked at every turn by a reactionary Supreme Court that acted to protect the interests of big corporations and the rich.
The importance of a more representative Supreme Court
WHAT MATTERS: FDR failed in his effort to reform the makeup of the court. You’ve argued for an amendment to reform the court to:
- get every President two nominees and
- impose 18 year terms on justices.
Would changes likes this have precluded some of these recent decisions on guns, on Roe v. Wade, on the EPA that have frustrated so many people?
KOWAL: I think it would have had an impact. So for a long time, people wanted to cling to the idea that the judiciary is above politics. But for 50 years the Republican Party has made getting the right kind of nominees on the bench a priority and they did it for a reason. They did it so that they could advance an agenda. And so they have successfully used the failures of the current system. …
What if this amendment had been in place for the last 30 years, the composition of the Supreme Court would more closely follow the results of presidential elections. …
If you go back 18 years, it’s the beginning of the second George W. Bush administration, so it’s 2004. So he would have gotten two nominees, but then Obama would have gotten four nominees, and then Trump would have gotten two nominees and then Biden would have already gotten one. So we wouldn’t have you would not have a six-three court in favor of conservatives, which is done through gamesmanship.
What about an amendment compromise?
WHAT MATTERS: Conservatives have suggested a constitutional convention to impose things like term limits on lawmakers and judges and require a balanced budget. Progressives are more likely to push for an Equal Rights Amendment or to tweak the Second Amendment.
Is there any precedent for amendment bargaining? Could the two sides come together and each come up with an amendment, for instance, term limits on congresspeople in addition with term limits on judges? Is there any precedent for that?
KOWAL: Politics has played a role in amendments. For example, so the conservative Republicans in 1909 supported the income tax amendment as part of a bargain to basically persuade Congress not to pass an income tax law. And it blew up in their face because the amendment passed. They had been hoping that the amendment would die on the vine and not get ratified.
Why would smaller states ever agree to give up some power?
WHAT MATTERS: The most obvious next amendment for a lot of Americans would be to reform the Electoral College. What should a new electoral college amendment do and how would that be accomplished?
KOWAL: Let me back up. If Americans really think about what the Framers did, they basically did not provide that the people have any role in picking the President. They gave this role to states. … States don’t have to allow people to vote. If they wanted to pass a law saying, ‘We’re picking the name out of a hat,’ the Constitution doesn’t, on its face, forbid it.
The American people insisted that they have the right to pick the electors, and so by the early 1800s, every state but one had such a law. South Carolina eventually relented as well. …
If it weren’t for the fact that Republicans benefited from the Electoral College twice in the last couple decades, I think there would be more significant bipartisan support for an amendment. An amendment had a lot of support in 1970 but fell short due to a filibuster. It seems these kinds of amendments always run into the problem that one side might feel that status quo is benefiting them.
What could really work and what could make an Electoral College amendment move to the front of the line is if you can get success in passing the interstate popular vote compact. … If we could get that, then our elections become de facto national popular vote, plebiscites, and the strategies of the parties have to change. And I believe that that would bring people to the table to create a more enduring and bulletproof solution in the form of a constitutional amendment. …
One of the one of the points we tried to raise in the book is that these are long-term strategies. They don’t happen overnight. … Having people listen to your side to changing people’s minds to building a popular movement around getting another constitution and a vision of democracy, that has benefits of its own even if it’s going to take a while to pass the amendment.
These efforts can last generations
WHAT MATTERS: Some of the people you talk about – the real transformational figures pushing for amendments – often don’t live to see them enacted.
KOWAL: Susan B. Anthony is a great example of that.
Others do and it’s a kind of warm and fuzzy story. There’s a guy named Jennings Randolph, who was a freshman congressman in West Virginia, and proposed during World War II, that they lower the voting age to 18, seeing that so many young men were going to fight the war. … It didn’t bear fruit until 1970 in the middle of a huge societal transformation, but he was still around, and he was able to introduce the amendment for the 11th time and to do a victory lap. So sometimes patience is actually rewarded.
You’re right in other instances, it takes so long it’s like Moses. You can’t bring it to the promised land with you but you’re getting them there.
What’s the most likely next amendment?
WHAT MATTERS: Is there any evidence you see of an amendment percolating right now?
KOWAL: There’s a lot of interest in the Equal Rights Amendment. (Note: The amendment has passed through 3/4 of state legislatures, but not in time for a deadline Congress initially set.) People in the movement are pursuing a strategy that that calls for recognizing the 1972 Amendment as valid because Congress has the right to withdraw the deadline that they imposed back in the ’70s.
At some point, the fight might move to what they call the fresh start strategy – in other words, introduce the Equal Rights Amendment again, and fight for it. It has huge popular support. Most Americans think that the Constitution does explicitly protect women’s equality and they’re surprised to learn that it doesn’t.
(The ERA) would be opposed by the same forces who oppose it last time – the religious right – but at a time when women are rightly concerned about their rights, when they’ve seen what has happened to reproductive freedoms. If they see a Supreme Court that is talking about only recognizing rights rooted in history, If you go back in 1868, women had no rights. They couldn’t vote. They didn’t participate in the writing or adoption of that amendment. So that there may be a very receptive audience to insisting, number one that the word ‘woman’ appear in the Constitution.
Top 5 amendments to pass right now
What Matters: Give me your top five amendments. (Note: I’ve added the bolded words to the bullet points below)
KOWAL: Electoral College – I think my No. 1 choice would be eliminating the Electoral College and making clear that the people choose our President. The Founders, the Framers, were unwilling to do that in 1787 and many of them thought it was an absurd idea. But the truth is Americans believe that the people should choose. If anything, the attempted coup in January of 2021 shows that the Electoral College is ripe for potential misuse and that our democracy might be hanging by a thread if we don’t get rid of it.
Equal Rights – Second, I would say the Equal Rights Amendment because next year will be the 100th anniversary of when it was first promulgated or put out there by Alice Paul and others. And I think it would be a fitting way to celebrate the anniversary by a strong push to get it in the Constitution.
Supreme Court – Third, I think would be rationalizing our system for selecting Supreme Court justices. The framers talked about judiciary as the weakest branch. They had no idea that it would be as powerful as it is, and they had no idea that people would live so long and stay on the court for 30, 40 years. I think the political wars over judicial selection could be tempered if we had a fairer system, where every president gets a chance to put their stamp on the court.
Voting – Fourth, I would say is a voting amendment. The framers made a fateful choice: instead of deciding the question of who is eligible to vote, they left it to each state to determine and they use a kind of a rule that sounds outmoded today. … What they should have done was to enshrine a universal right to vote as the foundation of a democratic society. It was the road not taken at various points in our history where what we’ve done is we’ve amended the Constitution to ban certain kinds of discrimination. But we never really went to the original sin of why we allow states to decide who gets to vote.
Congressional succession – The fifth one, I think, is a technical one, but it’s one where we’ve not done the smart thing for a long time. It would be an amendment to deal with a flaw in the way we replace members of the House of Representatives. … When a member of the House dies or leaves office, every state using its own system calls a special election that takes months. … As we think about what would happen if there was a catastrophic attack on Congress, and it’s not unthinkable. If a third of the House dies and some catastrophe, the House would not function. … I think it’s totally irresponsible to not plan for a terrible contingency like that.
Why the optimism?
WHAT MATTERS: Your book identifies a lot of problems with the Constitution and you’ve talked about some tweaks that could improve it but it’s an optimistic book. Why are you optimistic?
KOWAL: I’m optimistic because the story of the Constitution is a story of progressive change and improvement. It comes in fits and starts. It can be too cumbersome. It can be too slow. But we have made tremendous changes in the Constitution. The 19th Amendment was the largest enfranchisement in history where women were able to vote. The income tax amendment had a profound effect on laying the foundation for a modern American, with a government strong enough to solve our problems. If we just focus on the story of the framers, who were both remarkably progressive, but also created a document that was fundamentally flawed, and they were they were just products of their time. If we only think of the Constitution that way, then it’s dispiriting. But if you focus on the tremendous story of movement, and gadflies, and unlikely politicians and others who said we can have a better Constitution, I draw a lot of inspiration from that.
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