Introduction by Max Strasser from the New York Times:
| India’s Constitution has been amended more than 100 times in its 71-year life span. France’s Constitution has been updated about once every two years since it was adopted in 1958. The United States Constitution, on the other hand, has only seen 27 amendments since it was ratified in 1788 — and 10 of those came three years later in the Bill of Rights. |
| Americans love their Constitution. But is this stability proof that our Constitution is timeless — or just unresponsive? |
| That’s the subject of an essay by my colleague Jesse Wegman, a member of the Times editorial board. Marking 50 years since the last meaningful amendment gave 18-year-olds the right to vote, Jesse writes: “This half-century drought is all the more distressing in a time of intense social and political turmoil, with demands from both the left and the right for large-scale reforms of the American system of government.” |
| The problem is that the U.S. Constitution is difficult to amend. Doing so requires, as one scholar put it to Jesse, “rolling supermajorities across the country.” That’s how the founders designed it. Sort of. What they didn’t seem to anticipate was a country as polarized along partisan lines as America is today. |
| It’s hard to imagine big changes to the Constitution these days, just as it’s hard to imagine big changes to America more generally. But spurring a bit of imagination is what we want to do this summer in Times Opinion’s series Snap Out of It, America! |
| As part of that project, we asked seven scholars to weigh in with ideas for a 28th Amendment. One suggests making international law a basis for American law; another wants to extend the rights of personhood to the unborn; another proposes guaranteeing a right to labor organizing. |
| You may not like all of these ideas. You may not like any of them. But we hope that by offering suggestions we can open up — as Jesse also aims to do in his piece — a conversation about what may be possible. |
Here starts the main item by guest author Jesse Wegman from the New York Times. He is a member of the editorial board:
Thomas Jefferson Gave the U.S. Constitution 19 Years. Look Where We Are Now.
The 26th Amendment to the Constitution took effect 50 years ago this summer, extending the right to vote to all Americans age 18 and older. It was the fourth amendment in the span of a decade, three of which expanded voting rights — a burst of democratic reform nearly unequaled in the nation’s history.
It was also the last meaningful change to the Constitution. And based on the country’s increasingly polarized politics, it is likely to remain the last for anyone alive today. (The 27th Amendment, ratified in 1992, was a historical quirk that doesn’t count for these purposes, as I explain below.)
This half-century drought is all the more distressing in a time of intense social and political turmoil, with demands from both the left and the right for large-scale reforms of the American system of government. Overturning the Supreme Court’s ruling in Citizens United, mandating a balanced budget, establishing a positive right to vote, banning the burning of the American flag? Forget it.
None of these frequently proposed amendments has anywhere near the level of support needed to clear the hurdles set out in the Constitution: a two-thirds vote in both the House and the Senate, followed by approval in at least three-quarters of the states, which today is 38. Sometimes even that isn’t enough. The Equal Rights Amendment, which would ban discrimination on the basis of sex, passed Congress in the early 1970s and picked up its 38th state last year. Yet it will probably never be adopted because it exceeded the time limit set out in the original bill and because several states that approved it later rescinded their ratification.
“We have an amendment process that’s the hardest in the world to enact,” said Aziz Rana, a professor of constitutional law at Cornell University. “That’s the reason why it’s basically a dead letter to enact constitutional amendments. You have to have rolling supermajorities across the country to do so.” Out of almost 12,000 amendments proposed since the founding, only 27 have been adopted. That’s one every 13.5 years on average, not counting the Bill of Rights, which were adopted as a package deal shortly after the Constitution was ratified.
This paltry record would have surprised the nation’s founders, who knew the Constitution they had created was imperfect and who assumed that future generations would fix their mistakes and regularly adapt the document to changing times. “If there are errors, it should be remembered, that the seeds of reformation are sown in the work itself,” James Wilson said to a crowd in 1787. Years later, Gouverneur Morris wrote to a friend about the mind-set of the Constitution’s framers: “Surrounded by difficulties, we did the best we could; leaving it with those who should come after us to take counsel from experience, and exercise prudently the power of amendment, which we had provided.” Thomas Jefferson went further, proposing that the nation adopt an entirely new charter every two decades. A constitution “naturally expires at the end of 19 years,” he wrote to James Madison in 1789. “If it be enforced longer, it is an act of force, and not of right.”
What the founders failed to anticipate was the rapid rise of national political parties, which took shape even before George Washington left office and made it difficult if not impossible for the people to come together as a whole in support of major systemic reforms.
In the past two centuries, only three brief periods of constitutional change stand out: the 1860s, when the post-Civil War amendments banned slavery, made Black people citizens and prohibited racial discrimination in voting; the 1910s, when amendments established a federal income tax, a direct vote for senators and the enfranchisement of women; and the 1960s, when the civil rights movement led to democratic reforms like abolishing the poll tax, giving presidential electors to Washington, D.C., and allowing 18-year-olds to vote. Those amendments were all part of the natural process of constitutional evolution, and Americans rightly consider them to be as central to the Constitution as the original words written down by the founders in 1787.
Now, half a century after the last true amendment, that evolution has come to a standstill. With essentially no prospect of reform in the foreseeable future, the nation faces an unsettling question: Are we stuck with the Constitution as it is? What does that mean for our future?
To begin to answer that, it’s worth remembering how the last amendment came to be.
The 26th Amendment was cooked with two ingredients common to several others: a controversial Supreme Court ruling and a war.
By the late 1960s, the war in Vietnam was deeply unpopular, especially with younger Americans. Making it worse, many of those being sent into the line of fire were still years away from being allowed to cast a ballot. The age of conscription had been set at 18 during World War II, but the Constitution left the age of voting to the states, which effectively meant that only people 21 and older could vote. (Two states, Georgia and Kentucky, lowered their voting age to 18 in the years after the war.) Hence the slogan “old enough to fight, old enough to vote” — eight words of moral clarity that became impossible to disagree with.
Congress turned that sentiment into law in 1970 when it reauthorized the 1965 Voting Rights Act, including a provision that lowered the voting age in all elections — federal, state and local — to 18. But even as President Richard Nixon signed the bill into law, he said he expected it would face a constitutional challenge. He was right. Oregon and Texas quickly sued, arguing that Congress had no power to tell the states how to run their own elections.
The Supreme Court agreed. In December 1970, the court ruled by a vote of 5 to 4 that Congress could set voting qualifications for only federal elections. This didn’t make anybody happy. States that wanted to keep their voting cutoff at 21 faced the logistical and financial nightmare of running two elections, each with its own standards.
Some, like Senator Birch Bayh of Indiana, also believed that the civil unrest of the late 1960s was caused in part by the fact that young people had no means of making their voices heard. “The surest and most just way to harness the energies of and moral conscience of youth is to open the door to full citizenship by lowering the voting age,” Mr. Bayh said. “Youth cannot be expected to work within the system when they are denied that very opportunity.”
The solution was to amend the Constitution and establish a nationwide right to vote in all elections for everyone 18 and older. Mr. Bayh had been at the forefront of efforts to expand the franchise throughout the 1960s and had spent the previous four years pushing for what he hoped would be the original 26th Amendment — abolishing the Electoral College in favor of a national popular vote. That amendment failed in late 1970, but now Mr. Bayh had an easier job. The voting-age amendment was drafted and sent to a vote in both houses of Congress with lightning speed, only three months after the court’s ruling. (There was a brief delay when Senator Ted Kennedy tried and failed to tack on a provision granting statehood to Washington, D.C.)
In a degree of bipartisanship unimaginable today, the vote in the Senate was unanimously in favor. Following a similarly lopsided vote in the House, a wave of states began ratifying the amendment, including those that had recently rejected changing their own laws to let 18-year-olds vote. In just over three months, the required 38 states had signed on — the fastest ratification of a constitutional amendment in history.
A major reason for such speed was that lowering the voting age was not generally seen as a partisan political issue. It’s hard to imagine anything similar in 2021. Had the 26th Amendment not passed when it did, there’s no way the Republican Party would permit it now. It has seen the polls showing that young voters are overwhelmingly hostile to the party.
It doesn’t matter that expanding the franchise is the right thing for a democracy to do. Entrenched partisanship like this is now the central barrier to constitutional reform. “It was once possible that serious people in Congress would address the need for constitutional amendment,” said Sanford Levinson, a constitutional scholar at the University of Texas at Austin. That’s no longer the case, he said, given “the sheer fear that any constitutional amendment would work against your own team’s interest.”
The 26th Amendment was also the last to be ratified before the nation began to feel the effects of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. When those laws passed, President Lyndon Johnson predicted they would lead the Democratic Party to lose the South for a generation. He was too optimistic. Southern Democrats who opposed racial integration switched to the Republican Party in large numbers, exacerbating and accelerating the partisan polarization of American politics.
Polarization isn’t new, of course. The country passed the 13th, 14th and 15th Amendments in the aftermath of the Civil War — a time when Americans were as divided as they could be. But those amendments “were ratified at the barrel of a gun,” Mr. Levinson said. Any former Confederate state that wanted to be readmitted to the Union was first required to accept the 14th Amendment, granting citizenship to Black people and extending the equal protection of the laws to Americans everywhere. It worked, but it’s hardly an ideal path to constitutional reform.
Either way, one century after the Reconstruction amendments passed, the “seeds of reformation” stopped sprouting. Since July 1, 1971, when the 26th Amendment took effect, no new amendment besides the E.R.A. has come close to ratification. (The 27th Amendment, which bars Congress from raising its own pay until after the next election, was originally drafted by James Madison and passed by Congress in 1789, along with the Bill of Rights. It failed to win ratification in enough states and was forgotten for nearly 200 years, until a college student from Texas wrote a class paper pointing out that it contained no time limit and so could still be ratified — which it finally was in 1992.)
A result of shutting off this key valve of reform and adaptation is that debates over the Constitution have been shunted from the people, who should be leading them, to the federal courts, and primarily the Supreme Court.“We became reliant on the courts to do what the amendment process couldn’t do,” said Franita Tolson, a professor and vice dean at the University of Southern California’s Gould School of Law.
That may not have seemed like a bad deal when the court was protecting voters and establishing principles, like one-person-one-vote, to ensure that the political process is fair and equal. But it is always risky to leave so much of the Constitution at the mercy of “whatever a tiny coterie of lifetime judges can be convinced to pursue or accept,” as Mr. Rana, the Cornell law professor, wrote in an article last year.
When so few people wield such outsize control over the shape and direction of the Constitution, the battles over who gets the job become predictably brutal, as they have in recent decades. Meanwhile, partisans on both sides treat their favored justices like superheroes. “The veneration of justices is a sign of a dysfunctional political system, whether Ruth Bader Ginsburg or Antonin Scalia,” Mr. Rana said. “A healthier system would be one in which you didn’t know who was on the court, because it wasn’t the only vehicle for constitutional change.”
There is one other avenue for reform laid out in Article V of the Constitution: a new convention, which can be triggered by the agreement of two-thirds of the states and which allows a direct vote on amendments, without needing to go through Congress. Many attempts to open a new convention have been made; none has yet succeeded, although Republican-led states have come close in recent years. Whatever happens, it’s hard to imagine any amendment that could clear the 38-state hurdle today. Yet there could be value in the attempt, Mr. Levinson said. “Imagining a convention would inevitably generate a national conversation about all sorts of topics, as against the present reality where no one, at least in the political class or elite punditry, really broaches the possibility of constitutional reform at all.”
Why does all this matter? Because if the Constitution can’t be changed to adapt to modern needs and the Supreme Court becomes both too powerful and too politicized, the political system starts breaking down. Mr. Rana fears that American government is entering a state of institutional paralysis, failing to address a number of enormous social problems, including the coronavirus pandemic, racial and economic inequality, the fallout of overseas wars and the continuing aftereffects of the housing crisis.
In a functioning system, political leaders would listen to the views of the majority and transform those views into effective policies. “Instead what we’ve seen are paralysis and popular disaffection that feeds various kinds of destructive political forms and movements, and then it all starts again,” Mr. Rana said. “The United States is effectively a great empire. And a common story about how great empires decline is that the institutions are not able to address the basic social problems the society faces.”
That is also what worries Mr. Cole. “The system is so bollixed up, it’s hard to see modest reform succeeding in responding to some of these problems, which then creates the demand for radical reform. And radical reform is not pretty.”
The obvious example is the Civil War, which gets invoked with alarming frequency these days. I asked Ms. Tolson, the U.S.C. law professor, whether 21st-century America could avoid a similar fate on the path to a fairer and more inclusive democracy. “There may be a way to get there without 700,000 people dying, but there will not be a way to get there without violence,” she said. “The violence is already happening. Jan. 6 was a manifestation of the political dispute in our country right now, much like the country in 1859. The question is, how many people have to die before we decide who America will be in the next generation and next century?”
If all this sounds dark, that’s because it is. “Joe Biden’s presidency suggests that way more Americans endorse the vision that we are a democracy, but there are still a lot that will not embrace a democratic vision for this country,” Ms. Tolson said. “That suggests to me that we’re in trouble. And when you have a major political party supported by millions of people and they won’t endorse democracy, we might actually lose this one.”
At the same time, she held out hope. “There’s never been consistently one path” to reform, she said. I asked her what our own path might look like. “This is going to sound so pie in the sky, but you have to vote them out,” she said. “That’s the only thing politicians respond to, of either party. That’s the one universal truth of our system.” She pointed out that the past 50 years have been among the most stable in our country’s history. “That tricked most of us into thinking that American democracy was — I don’t want to say safe, but safe — even though it’s been under attack for years.”
If there is a silver lining, perhaps this is it — that no one is fooled anymore.