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T he
Constitution
is notoriously hard to amend. The process set out in Article V and used for all of the Constitution’s amendments involves gaining a series of supermajorities. First, two-thirds of both chambers of
Congress
must approve. Second, a majority in three-fourths of the 50
state legislatures
must add their consent.
By contrast, most state constitutions are notoriously easy to amend. Many permit a mere majority of voters to change the state’s constitution through ballot measures on Election Day. Thus, while the U.S. Constitution has only 27 amendments (only 17 since 1791), state constitutions contain many, many more changes.
An article in
Monday’s
Wall Street Journal
chronicled how some state officials are trying to make their amendment processes harder. It is a good idea. But before articulating why, I also must admit it is a terribly timed one.
As the article relates, the officials wishing to change the state amendment process are almost entirely from one party (Republican) and wish to do so mostly because of one issue (abortion). In state after state, including Republican-leaning ones, voters over the past year have bypassed state legislatures to enshrine abortion rights. Thus, the attempt to change the amendment process now clearly smacks of a partisan gaming of the system, an attempt to change general rules to protect particular policy outcomes.
It also smacks of hypocrisy. Conservatives used the same processes in the 2000s through measures banning gay marriage. Only now, when the rules aren’t yielding desired results, do they question those rules’ legitimacy.
With that said, making state constitutions harder to amend would benefit us all. First, it would better realize the distinction between constitutions and normal legislation. Constitutions accomplish two important tasks that distinguish them from statutes. For one, they establish the structures for lawmaking, law enforcement, and law adjudication through which the people exercise their sovereignty. For another, constitutions protect certain rights by placing them beyond the regular processes of majority rule. Normal laws, then, exercise day-to-day and year-to-year governing by operating within these structures and those limits.
Thus, constitutions are not meant to operate like regular statutes. The former forms the more lasting context for the more transitory latter. Constitutional change, then, should be an extraordinary move. Creating new statutes or either amending or repealing old ones, meanwhile, should be seen as ordinary, even common.
Second, making it more difficult to amend state constitutions would push more decision-making back on state legislatures and away from direct popular votes. This move at first might seem to go against rule by the people. But the founders never thought the people ruled best when ruling directly. In fact, the U.S. Constitution never gives the people a direct policymaking role.
Instead, the founders believed the people ruled best through their representatives. Part of the reason had to do with the process. The lawmaking procedures required by the U.S. and state constitutions encouraged deliberation and thus better, clearer, more effective laws.
The other reason had to do with who would make the laws. Representatives were meant to be chosen according to their superior talents in governing, and to be focused on and thus understand policy more than the average voter could, while still being subject to those voters’ ultimate approval or rejection. Representation would, as Federalist 10 argued, “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”
Thus, it would be better if more of our major political decisions were made by legislators through the legislative process. It might even strengthen the quality of our legislators and laws by placing greater responsibility for governing back on those officeholders and the legislation they produce.
Of course, these moves would make change harder — but only at the constitutional level. Regular legislation would still be much easier, requiring a simple majority. That is how it should be: stable constitutions and flexible codes of laws.
Too bad the issue is so bound up in partisan games. It could do our entire country, regardless of party or issue, a great service.
Adam Carrington is an associate professor of politics at Hillsdale College.
