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Regardless of what politicians might promise, it's nearly impossible to amend the Constitution. (AP)

There is a constitutional amendment for every problem in the United States, or so politicians would have us believe.

Is it your view that abortion is unraveling the moral fabric of America? Somewhere, a conservative politician is campaigning for a constitutional amendment to ban abortion with exceptions only in cases of rape and incest.

Do you believe that unlimited corporate campaign expenditures is a threat to democracy? A progressive politician out there is pledging to amend the Constitution to overturn the Supreme Court’s ruling in Citizens United, which gave corporations largely the same campaign speech rights individuals enjoy.

Cast our vote for them, these politicians say, and together we will fix the problem, whatever it is, with a constitutional amendment.

The real battleground is not Congress anymore, anyway. The fight for social change now occurs in the states and the courts, away from the onerous procedures of constitutional amendment.

They know better, and so should we.

For one, the United States Constitution is probably the most difficult in the world to amend. The numbers do not lie: of the over 10,000 amendments that have been introduced by members of Congress, only 27 have made it into the Constitution.

A good idea for a constitutional amendment is one thing, but it is more important to have a plan to meet the Constitution’s requirement for passing one: approval by two-thirds of both the Senate and the House of Representatives, and also by three-quarters of the states. This is a tall order in any political climate, particularly today when it is virtually impossible to imagine a divided Congress and distrusting states agreeing by a supermajority to anything, let alone on something as significant as a constitutional amendment.

It has not always been this hard to amend the Constitution. Amendments have occurred in waves corresponding to periods of intense social upheaval. At the founding, for instance, the Constitution was amended 10 times in 1791 to create what is known today as the Bill of Rights. Later, during Reconstruction in a five-year span, the Thirteenth Amendment abolished slavery in 1865, the Fourteenth Amendment promised equal treatment under law in 1868, and the Fifteenth Amendment sought to enfranchise generations of former slaves in 1870.

The next wave came in a seven-year period before and during America’s progressive era. The Sixteenth Amendment authorized a federal income tax in 1913, the Seventeenth Amendment created direct elections for U.S. Senators in the same year, the Eighteenth Amendment prohibited alcohol in 1919, and the Nineteenth Amendment guaranteed women the right to vote in 1920.

The final wave of constitutional amendments came in a six-year period during the tumultuous 1960s against the backdrop of the Vietnam War, the expansion of civil rights, and the assassination of President John F. Kennedy. America adopted the Twenty-Third Amendment in 1961 to give Washington, D.C. a voice in the Electoral College, the Twenty-Fourth Amendment in 1964 to protect the right to vote with a ban on poll taxes, and the Twenty-Fifth Amendment in 1967 to clarify the rules of presidential and vice-presidential succession.

George Washington is depicted in the 1856 painting "George Washington Addressing the Constitutional Convention" by Junius Brutus Stearns, depicting a climactic moment at the end of the convention. (AP)

George Washington is depicted in the 1856 painting “George Washington Addressing the Constitutional Convention” by Junius Brutus Stearns, depicting a climactic moment at the end of the convention. (AP)

We could use another wave of amendments today. A balanced budget amendment might be a good idea; something similar is now popular in Europe as countries search for ways to deal with their own financial pressures. Or an amendment to guarantee marriage equality for all women and men to freely enjoy the full benefits and status of marriage. Or perhaps even an amendment to make it easier to amend the Constitution. But none of these will happen anytime soon.

Most conservative politicians do not really want to amend the Constitution to ban abortion for good. Nor do their progressive counterparts really want a constitutional amendment to ban corporate campaign speech. Both amendments would spell the end of their best get-out-the-vote and fundraising strategies. Politicians rely on these deeply partisan, and mythical, amendments to fill their coffers, get elected, and then do it all again in the next electoral cycle.

The real battleground is not Congress anymore, anyway. The fight for social change now occurs in the states and the courts, away from the onerous procedures of constitutional amendment.

Today’s major battles between advocates of marriage equality and traditional marriage, affirmative action and race-neutrality, and choice and life often begin either in the states where constitutional amendment is generally much easier, or as legal challenges in federal courts, or sometimes both.

That’s why the stakes are so high in judicial confirmations. Senators, lobbyists and increasingly everyday voters recognize that constitutional change today happens more commonly through the judicial interpretation of the Constitution rather than its amendment. The power of judicial review authorizes federal courts to evaluate the constitutionality of virtually everything, which means the Constitution is basically amended anytime a judge interprets the Constitution to mean something new.

The Constitution is in dire need of repair, but the kinds of changes we need… are possible only with old-style constitutional amendment and that door is shut for now.

The Supreme Court effectively amended the Constitution when it ruled in Roe v. Wade in 1973 that the right to privacy protects a woman’s right to an abortion. The right to privacy is of course mentioned nowhere in the text of the Constitution. Likewise the Court effectively amended the Constitution when it struck down campaign finance limits on independent corporate speech, likening a bricks-and-mortar corporation to a blood-and-guts person. The effect of such a judicial opinion is the same as an actual amendment because it is the law of the land.

These judicial “amendments” do not get added to the written Constitution. They are instead codified in the Court’s judicial opinions. Yet they are as durable as constitutional amendments.

The real issue, though, is how difficult it is to actually amend the Constitution. The Constitution is in dire need of repair, but the kinds of changes we need — to the obstructive filibuster rule, the antiquated legislative process, the problematic Electoral College, to name three — cannot be made by judicial amendment. They are possible only with old-style constitutional amendment and that door is shut for now.

Absent a major effort to start over with an entirely new constitution that makes governing possible, the not-yet-broken-but-arguably-breaking structure of government could accelerate the declining path on which many fear the United States may be heading. As it happens, this is the same choice America faced in 1787 when the founders replaced the Articles of Confederation with the Constitution that governs to this day. Few things last forever. What makes the United States Constitution so special?

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The views and opinions expressed in this piece are solely those of the writer and do not in any way reflect the views of WBUR management or its employees.

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  • Louis

    You say, “The right to privacy is of course mentioned nowhere in the text of the Constitution.” The Constitution says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” and “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    • Richard Albert

      Good point. The Fourth and Ninth Amendments are widely seen as the source for a broad right to privacy. But the right itself is not expressly mentioned, neither in either of those amendments nor anywhere else in the Constitution.

    • cuvtixo

      Still, wouldn’t it be great if there was explicitly stated, “Citizens have a right to privacy?” And in fact, the phrase you quote refers only to encroachment by the government. The Constitution allows businesses, neighbors and even perfect strangers to spy on people. Personally, I think we should be protected from all who those who wish to violate our privacy.

  • Michael Eugene Nesbit

    We are surrounded by traitors to our constitution. It’s time to stand up and fight. Time to take back our government before the socialist destroy our way of life.

    • Richard Albert

      I think I agree with this…

      • massappeal

        Really? How so and why? (And who are the socialist(s) destroying “our way of life”?)

        • Richard Albert

          I agree with the spirit of the comment, which, as I understand it, is that we should resist any violent and undemocratic effort to overturn the existing constitutional order. Non-violent efforts to modify the constitutional order, however, are fine as long as they play by the rules of democracy.

          • annie m

            It’s the inflammatory rhetoric of Mr. Nesbit’s comments that is alarming.

  • http://www.amendments-convention.com/ Publius II

    Professor Albert, you overlooked the Convention of States method for proposing amendments to the US Constitution. A movement is building to make this happen!

    • Richard Albert

      Interestingly, the convention procedure for constitutional amendment has never been used–not once–since the Constitution’s adoption, well over two centuries ago. This doesn’t mean that it can’t ever happen; it just means that it is very unlikely. Good point though!

      • Ben Wisdom

        The Convention of States method for amending the Constitution has almost happened twice and the argument could be made that the method hasn’t failed yet.

        From Wikipedia’s article on the 17th amendment:

        “By 1910, 31 state legislatures had passed motions calling for reform. By 1912, 239 political parties at both the state and national level had pledged some form of direct election, and 33 states had introduced the use of direct primaries. With a campaign for a state-led constitutional amendment gaining strength, and a fear that this could result in a “runaway convention”, the proposal to mandate direct elections for the Senate was finally introduced in the Congress. It was passed by the Congress and on May 13, 1912, was submitted to the states for ratification. By April 8, 1913, three-fourths of the states had ratified the proposed amendment, making it the Seventeenth Amendment.”

        • Richard Albert

          You’re right to suggest that the convention procedure isn’t obsolete. But it is not alive and well, either. It is closer to dormancy.

          • PaulD

            Is it that people are too afraid to use it? If I understand it correctly, it’s essentially the nuclear option in that the whole constitution is now up for change though amendment.

      • Ben Wisdom

        Also from Wikipedia, regarding a Balanced Budget Amendment:

        “Article V of the Constitution specifies that if the legislatures of two-thirds of the states petition Congress for a constitutional amendment, then Congress must call a convention for proposing amendments. Between April 29, 1975 and January 29, 1980, 34 petitions from 30 different state legislatures were submitted to Congress on the subject of a Balanced Budget Amendment. The participating states were Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming. Since 1980, two additional state legislatures have petitioned Congress for a convention for a Balanced Budget Amendment, bringing the total number of participating states to 32.[16] If two additional state legislatures were to petition, then the required two-thirds majority of states would be reached (34 out of 50 states) and some contend that Congress would be required to call a convention to propose a Balanced Budget Amendment.”

        • Richard Albert

          Yes, there have been a few close calls. But the process has never yet been successfully used. Perhaps that will change; it would be surprising if it did, though.

      • fun bobby

        the third amendment has been underused as well. hopefully its not too late. I for one am sick of spending a trillion bucks a year quartering troops

  • Chase

    One gem that the lay public must take away from this piece is Albert’s observation of the false nature of modern political rhetoric vis-a-vis our present jurisprudential (un)realities. Here’s my read: While we can live with a politician who campaigns on an issue that has little hope for success, we do so believing that rhetoric is aspirational, if somewhat hyperbolic; it would draw a wholly different reaction if the masses recognized that such rhetoric does not even represent a candidate’s own interests.

    The key distinction is between good and bad faith, some form of domestic realpolitik versus straight up lying. By pointing out the implausibility of constitutional amendments in today’s government, Albert shows that any grand pulpit promise of amending the constitution amounts to nothing more than sheer exploitation of a public ignorance. Thus, reference to these ” deeply partisan, and mythical, amendments” have become a convenient escape-hatch / fail-safe device (my Lost reference) to bolster and subsequently reset campaign platforms.

    Though Albert is too polite to call out the public as gullible, he would certainly be justified in doing so. Perhaps if we can heed this warning, and reject false rhetoric by learning to identify legislative and jurisprudential impossibilities where they arise, politicians may actually have to, in some iconoclastic way, raise money without banking on the ignorance of their constituents.

    • Richard Albert

      Thanks for your careful reading of the piece.

      Your comment calls to mind the work of Ilya Somin, a well-regarded constitutional law scholar who has developed an interesting theory about political ignorance. Somin argues that democracy demands an informed electorate because suboptimal voter knowledge will prevent political actors from reflecting the will of the people in a meaningful way. Somin illustrates his theory using helpful examples. Here is a link to his book on the subject: http://www.amazon.com/Democracy-Political-Ignorance-Smaller-Government/dp/0804786615.

  • fun bobby

    a lot of things, rich.

    • Richard Albert

      Thank you for your comment.

  • http://www.capecodtoday.com/blogs/index.php?disp=bloggers citizenkane

    Would have been a MUCH more interesting article if the writer had answered (or even merely explored) the question he poses at the very end. Or is that another piece?

    • Richard Albert

      There’s only so much one can say in 1000 words. But stay tuned for a future piece.

  • http://www.capecodtoday.com/blogs/index.php?disp=bloggers citizenkane

    Definitely staying tuned.

  • Adam

    Very thought-provoking article. Query whether the founders wanted the Constitution to be hard to amend. Seems better than the alternative, so folks have at least a reasonable expectation that the broad contours of how their society is supposed to operate will remain substantially consistent, even if–and when–reality deviates from the goal. Prof. Albert’s closing thought also makes me wonder what would happen if we agreed that a new Constitution. Who would write it? Ted Cruz? Nancy Pelosi? Probably the Koch Brothers, I’m afraid. Well, sequels are almost never as good as the original.

    • Richard Albert

      Thank you for your comment. I agree that the Constitution shouldn’t be so changeable that it might as well be a statute, repealable or revisable by a simple majority.

      Did the founders intend the Constitution to be difficult to amend? James Madison suggests in the Federalist Papers that the Constitution should be neither too easy nor too hard to amend: “The mode preferred by the Convention seems to stamped with every mark of propriety. It guards against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.”

  • PaulD

    You say the Constitution is in need of repair and list three areas of concern: filibuster process, legislative process and the electoral college. If you’re going to do a follow up piece, please address exactly why these areas need change. Also, please discuss the downsides to changing these areas. Taking the Electoral College as an example, if my understanding is correct, this is a manifestation of the country being formed as a republic, not a pure democracy (per Madison’s Federalist papers). Are you not arguing for the questioning of that in a greater sense? The unintended consequences of this are not something to be underestimated.

  • reasonableargument

    Mr. Alpert, this is an interesting article on an important subject. I take issue with one part of it though: I think you grossly mischaracterize the sources of support for an amendment to address the issues at the heart of the Citizens United ruling. First of all, this push hasn’t come from politicians at the national level, but primarily from true grassroots groups like Move To Amend, in partnership with more established advocacy organizations like Public Citizen. Yes, a number of representatives and senators have introduced various takes on this amendment, but the real action is happening at the state level, with 16 states (and rising) going on record in the past three years calling for an amendment, most through legislative action and two through statewide ballot initiatives.

    Second, while progressives may represent a core constituency behind this particular amendment effort, it is not a deeply partisan issue; instead, all the polling that has been done points to overwhelming rejection of the notions that corporations are entitled to Constitutional rights and that election spending is protected from all restriction by the 1st Amendment, and broad support for an amendment to address these two tenets, across Democrats, Republicans, and independents almost equally.

    Lastly, while I generally have a cynical view of politicians and their actions, I think you go too far in claiming that they don’t actually want the amendments they endorse to become law. Calling for an amendment may be one way to appeal to voters and small donors, but it flies in the face of the groups that are pouring vast sums of secret money into our elections. Taking such a position may scare off more funding than it courts. Plus, I believe most politicians would like to be able to spend more time doing the business of governing, and less time incessantly fundraising in order to keep up in a world of donor-driven politics. Stemming the avalanche of money into our elections would likely be a welcome change for more of our representatives than you seem to think.

    I don’t know whether the same is true of the other amendments you mention, because this is the one with which I’m most familiar. But I wanted to offer this other perspective. Thanks for the article.

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