Where Scalia Gets It Right

The U.S. Constitution is undoubtedly the most difficult basic national agreement of its kind to amend in any democratically-based form of government in the world. Associate Supreme Court Justice Antonin Scalia, perhaps the most conservative member of the Court, believes that we actually need a new constitutional provision – which of course requires an amendment – to make amending the Constitution rational and achievable. “Scalia said fewer than 2 percent of the population could prevent enactment of a constitutional amendment. ‘It ought to be hard, but not that hard,’ he said. But he does not favor holding a constitutional convention. ‘Whoa! Who knows what would come out of it?’ Scalia said.” ABA Journal Weekly Newsletter, April 25^th.  How hard is it?

“The United States Constitution is unusually difficult to amend.  As spelled out in Article V, the Constitution can be amended in one of two ways.  First, amendment can take place by a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures (ratification by thirty-eight states would be required to ratify an amendment today).  This first method of amendment is the only one used to date.  Second, the Constitution might be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention's proposed amendments are later ratified by three-fourths of the state legislatures. 

“Because any amendment can be blocked by a mere thirteen states withholding approval (in either of their two houses), amendments don't come easy.  In fact, only 27 amendments have been ratified since the Constitution became effective, and ten of those ratifications occurred almost immediately--as the Bill of Rights.  The very difficulty of amending the Constitution greatly increases the importance of Supreme Court decisions interpreting the Constitution, because reversal of the Court's decision by amendment is unlikely except in cases when the public's disagreement is intense and close to unanimous.  Even unpopular Court decisions (such as the Court's protection of flagburning) are likely to stand unless the Court itself changes its collective mind.”  law2.umkc.edu

 “Over 11,500 amendments have been introduced in Congress but only 27 have been added to the U.S. Constitution.” ConstitutionalCenter.org,AnnenbergClassroom.org. To get an idea of how long some of these amendments can take, just look at the last amendment (27^th) to understand it took well over a century!

“Amendment XXVII prevents members of Congress from granting themselves pay raises during the current session. Rather, any raises that are adopted must take effect during the next session of Congress. Proponents of the amendment believed that legislators are more likely to be cautious about increasing congressional pay if they have no personal stake in the vote. The amendment was introduced in Congress in 1789 by James Madison and sent to the states for ratification at that time.

“It was not until 1992 however, after public displeasure with repeated congressional pay increases, that the required three-quarters of the states ratified the measure. Unlike several other recent amendments, which contained a seven-year time limit for ratification by the states (see for example Amendments XX and XXI), Madison’s proposed amendment contained no time limit for ratification.” ConstitutionalCenter.org, AnnenbergClassroom.org. The 26^th Amendment, lowering voting age to 18, was passed through this cumbersome process in 1971.

Fact is, we cannot implement the most basic alterations and updates necessary to keep our Constitution fresh, updated and relevant. And since this is as close to un-amendable as a document gets, this reality imbues those with the ability to interpret that basic agreement with extraordinary power that I doubt our Founding Fathers could have envisioned. The Supreme Court does not seem to be able to be overridden even with overwhelming support from the general public.

Here is the United States in 1776: “The first census was done in 1790. The population of the U.S. was found to be 3,929,214 people. In 1776, at the time of the Declaration of Independence, historians estimate the population to have been about 2.5 million people. That is less than the population of San Diego County today.” NorbertHaupt.com, January 16, 2011. Thirteen states huddled along the eastern seaboard. Today? Fifty states sprawling across the continent with almost 320 million people, 128 times larger than the country held at inception. Right on, Mr. Scalia, right on!

I’m Peter Dekom, and while our continuation as a nation is a testament as to the resiliency of the original Constitution and the Bill of Rights, it is time to allow that document to reflect the modern era through a reasonable and achievable process.