How to Fix Our Constitutional Amendment Process

What Would a More People-Powered Constitution Look Like?

Note: This is Part 2 of a 3-part series exploring the Power of the People in our system. (Start with Part 1.) 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.

Maybe it would split the difference between a unanimous vote and a simple majority. Perhaps this is what the Founding Fathers were going for when they said an amendment would require approval of ¾ (75%) of the states. That particular numerical threshold was the right idea. But they used the states as voting units in order to appease the states with smaller populations at the time.

States are not people. Over 200 years later, this formulation no longer serves us well. An easy way to update the amendment process is to just strike the word “states” and put in “population of the United States.” Easy fix.

Except that no system is fool proof. And sometimes many of us act like fools. In 1919, the 18th Amendment went into effect, prohibiting all manufacture or sale of alcohol within the United States.

The amendment had the support of about 65% of Congress (due to several members abstaining, they reached the required 2/3 threshold), and all but 2 of the states. Of all the state legislators in the country, about 80% of them voted in favor of the amendment.1Schrad, Mark L. January 13, 2019. “Why Do We Blame Women For Prohibition?” https://www.politico.com/magazine/story/2019/01/13/prohibition-women-blame-history-223972 If, as before, we take the legislators to be a direct channeling of the wishes of the population (which they are not, and certainly at that time were not, as many black people and women were still prevented from voting), you could say that the vast majority of the people supported the amendment. Assuming this is true, then even with a high supermajority requirement, the “wrong” things can still end up in the Constitution.

“The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane.”
– Marcus Aurelius

Thankfully, this period of Prohibition finally ended, and the Cincos de Mayo resumed, when the 18th Amendment was repealed in 1933. But this “system correction” took 14 long, dry years to occur. And you thought “dry January” was hard.

If this dumb law could be enshrined in the Constitution, what else? While we can and should have the proper structures in place to allow for better outcomes, we cannot rely on the system alone. It must be combined with a culture of critical thinking and deliberation.

The Founders weren’t sure we were up to the challenge. The reality is that the founders did not trust The People. For example, have you heard of President Pinckney? No, you haven’t. We’ll explain why in Part 3 of this series.

And check out the new book which explores these concepts and much more about civics that you need to know.

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