A mistake by the founders?
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The problem starts with Article 5 of the Constitution. It provides that an amendment can be proposed either by a two-thirds majority in both the House and the Senate or by a convention, called into being by Congress, after a request from two-thirds of the states. That’s version A and version B of step one. If an amendment makes it through either one, then comes step two: ratification by three-quarters of the states. In other words, an amendment requires a supermajority twice—the pig must pass through two pythons. By contrast, ordinary legislation requires the approval of a simple majority in each house.
The founders made the amendment process difficult because they wanted to lock in the political deals that made ratification of the Constitution possible. Moreover, they recognized that, for a government to function well, the ground rules should be stable. But they also understood that the people will need to change those ground rules as new challenges and problems surface with the passage of time. They didn’t mean for the dead hand of the past to block necessary progress.
But the founders blundered. They made passing an amendment too hard. In the 220-plus years since ratification of the Constitution, more than 11,000 amendments have been proposed, but only 27 have been enacted. The first 10 amendments were added immediately to appease critics of the Constitution during the ratification debates. The three critical post–Civil War amendments (13th, 14th, and 15th), which expanded individual rights, are also a special case because the Southern states were coerced into ratifying them. From 1870 to today, only 12 amendments have been enacted. And since 1971, only a single amendment has been ratified—a trivial change that prohibits Congress from giving itself a raise that takes effect before the following election—and that ratification took place 203 years after the proposed amendment was submitted to the states in 1789.
Still, how do we know that amendment is too hard rather than just hard enough? One reason is that the cumbersome national amendment process in the United States makes us an outlier. Most liberal democracies—including the nice, stable ones in Western Europe—amend their constitutions with great frequency. Germany amends its Basic Law almost once per year, and France a bit more than once every two years. Indeed, most states in the U.S. amend their constitutions every couple of years. Many have completely replaced their original founding documents. The procedures for amendment in states and most liberal democracies are much easier than they are for the U.S Constitution. For example, in Germany, an amendment requires a two-thirds majority in each House, and that’s it. In all these cases, no one complains about the lack of constitutional stability.
