So Many Issues, So Hard to Change - Has the US Constitution Become Unamendable?

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Article V of the US Constitution.

Let’s start with a little example. The last constitutional amendment was the 27th, passed in 1992, effectively saying that Congress may not give itself an immediate pay raise without an intervening election. Pretty non-controversial. But that amendment was proposed in 1789 and took 203 years to ratify. Imagine, in these ultra-polarized times, how a more controversial amendment would fare. The Equal Rights Amendment had a time limit for passage that had expired. Even as that amendment (which would have been the 28th) would have passed had that timeline been open, even as Congress recently extended it, constitutional purists claim that once the clock expired, the ERA required a ground zero do-over. Limbo.

Section 106b of the United States Code (federal statutes) gives the National Archives and Records Administration (NARA) the administrative responsibility to send notices and make the necessary publications when a constitutional amendment is properly introduced under Article V reproduced above. The exact process to add amendments has never completely been codified, so we have stumbled through the process every time. There is one harsh reality to our amendatory process: The United States has the democratic world’s most difficult amendatory process. Today, it is almost impossible to change our constitution. We are the oldest contiguous (uninterrupted) democracy on earth. 

Think about it. Thirteen colonies. Flintlocks, muskets and cannons are the only real weapons available. Slavery is a way of life for the Southern States. International relations are slow and inefficient. Farmers (94% of the country) are worried about concentrations of untrustworthy traders and other “city slickers” screwing up their lives. So, the New Jersey Compromise made sure that population would only have force in the House of Representatives (where all appropriations bills must originate); the Senate was based on land mass alone (the “states”; each state has two regardless of population). Traveling to and from the seat of government, Washington, DC, from some states takes days… so relegating voting to trustworthy representatives (electors) becomes a necessity. The notion of an “air force” or semi-automatic civilian assault weapons are not even a remote thought in anyone’s mind. So how do you amend an archaic document from a dramatically different era? 

“The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal ‘red-line’ copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.” Federal Register. 

Although the United States dealt with Franklin Delano Roosevelt’s attempt to stack the Supreme Court and force sweeping New Deal solutions to rebuild from the Great Depression, with mixed results, we have never really faced a rogue president who routinely issues executive orders when Congress will not accept legislation he wants. Our Founding Fathers, and every elected federal government ever since, were of the assumption that for a person to be elected president, they would be of good moral character, always acting in the best interests of the nation as a whole, casting their self-interests aside for the betterment of the country. 

White farmer traditionalists drafted the foundations of a new nation based on what they knew in the late 18th century, including that the character of each of those likely to ascend to the presidency was above reproach regardless of political slant. The big schism was federalism vs states’ rights. Vitriol abounded, as it always does between rival political factions, but out-and-out lying by the nation’s chief executive was incomprehensible. Think George Washington and the cherry tree story. Aside from the emoluments clause, based on a morbid fear of interference from traditional foreign colonial powers and an aversion to monarchial rule, the selection of the president was based on trust. Trust? Truth? Honesty? Rising above self-interest? We have a President with “none of the above.” 

Communication today is instantaneous. The need for electors vanished long ago, with the introduction of the telegraph and telephone. The Internet allows real time audio-visual connectivity today. That system has turned into a “tyranny of the minority.” “If Joe Biden maintains his steady lead in national polls over President Donald Trump through Election Day, Democrats will win the popular vote for the seventh time in the past eight presidential elections -- something no party has achieved since the formation of the modern American political system in 1828. 

“And yet, if Trump can restore his competitiveness in a handful of closely contested swing states, that might still not be enough for Biden to win the White House… The prospect that Trump could win the Electoral College and the presidency while losing the popular vote a second time -- something no president has done -- underscores the extent to which the 2020 election is emerging as a stress test for a core pillar of American democracy: the belief that majorities, in most instances, should rule.” CNN.com, August 11th. 

The Economist calls the United States a “flawed democracy,” because a structured minority can impose its will on the majority. This not the same agrarian nation of 1776; we are about 85% urban even as one rural vote has the political power of about 1.8 urban votes. All the democratic nations that have rewritten their constitutions in a modern era have been city-centric, because that’s the way the world exists for developed countries. Not the United States. As long as the GOP has its way, and they do not remotely need a majority or even to control even one branch of Congress to do this – note the supermajority required of Congress to amend the constitution in Article V – they can win elections without winning the popular vote. There are other questions. 

Does the First Amendment still work where mass mendacity, international election manipulation is rampant, where rich people have the unrestricted power to use their money to influence elections and where, in a time of pervasive social media, politicians use out-and-out lies and fake news masquerading as truth to seize and maintain power? Does the Second Amendment work where modern military assault weapons proliferate among the civilian population (there are over 15 million AR-15s in civilian hands today!)? Where mass shootings are routine? 

Indeed, even a ultra-conservative Supreme Court Justice whom people believe was a strict adherent to the original intent of those who authored the Constitution – the late Antonin Scalia – described the US Constitution (in a speech at a 2013 Southern Methodist University) this way: “It’s not a living document… It’s dead, dead, dead.” When you read his opinions, it becomes pretty clear that he was one of this nation’s most activist Supreme Court jurists ever. Our system of government is predicated on majority rule which protecting minority rights; it was never intended to be minority rule against the will of the majority. Can that be fixed?

            I’m Peter Dekom, and there is a very real question as to whether the United States can survive without an almost impossible, ground-up, redrafting of the Constitution.