Did You Know the Constitution Can Be Amended by Just 20% of the People?

Whose Law is it, Anyway?

Note: This is Part 1 of a 3-part series exploring the Power of the People in our system. These are excerpts, adapted for the series, from the new book Law is Not for Lawyers (It’s for Everyone): Empower Yourself with the Basics of Law and Civics.

The Preamble of the U.S. Constitution starts with three words: “We the People.” It’s clear: we are at the top of the food chain. Our leaders work for us, not for themselves, or anyone else.

This begs the question: Who are The People, exactly? While one answer may seem obvious – all 100% of us in this country – it’s not so simple. First of all, The People in charge are those who vote. That slices the population in half already, as voting rates hover around 50%, sometimes much lower.

Even setting this aside, our democratic system is not currently set up to carry out what even a majority of voters want. In fact, the Constitution can actually be amended with the support of a mere 20% of the population! Here’s how: The Constitution’s amendment procedures call for two alternative methods: (1) a two-thirds (2/3) vote of both houses of Congress, plus approval by three quarters (¾) of the states (generally through votes by state legislatures). Or (2) constitutional convention, where the results are approved by ¾ of the states. Although the second option has never been used, let’s analyze it for a minute.

Currently, ¾ of the states is 38 states. Say the 38 states with the smallest populations vote in favor of an amendment, while the other 12 do not. These 38 states together add up to only about 40% of Americans. But it gets worse. What if only a bare majority (51%) of the state legislatures of these states approved of the amendment? (To simplify, let’s assume that the state legislatures would vote in the exact proportion that the populations would, which is almost certainly not the case.) Then you would have only about 20% of the country making these monumental changes to the system. Of course, this is highly unlikely, but it goes to show who technically has power in our system.

“We in America do not have government by the majority. We have government by the majority who participate.” 
― Thomas Jefferson

It’s highly problematic that the Constitution allows for such a small minority of the population to make major changes to the rights of the rest of us. That needs to be fixed. We are not living up to the ideals of the Rule of Law.

Although it sounds odd, the Rule of Law is actually about limiting the power of the people. Or more specifically, limiting the power of some of the people to infringe on the rights of the other people. Even a simple majority (50% + 1) can represent a tyranny of the majority that tramples the rights of the minority. That minority can even be a single person, and that person still deserves protection of the law. This is the concept of individual rights.

A Constitution is meant to be a special document that is above the fray of day-to-day politics, and to uphold the rights of 100% of the people. On the other hand, it is virtually impossible to get 100% unanimous support for anything. That will never get anywhere. We must ensure that the document is flexible enough to allow for change when it becomes necessary from time to time. But making such changes should require enough of a consensus among the people, more than a simple majority (i.e., a supermajority), to try to prevent clearly bad ideas from becoming entrenched.

A Better Way

Is there a way to “fix” this system so that it works better for all of us? I’ve got some ideas. See Part 2 of this series for more. And check out the new book which explores these concepts and much more about civics and law that you need to know.

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