Amending the Constitution Is Impossible Until Suddenly It’s Not
The American experiment with constitutional democracy is in grave peril. If Donald Trump becomes president again, fighting to preserve U.S. constitutional democracy through his second term will require the courage, commitment, and creativity of a broad prodemocracy coalition.
But the problem is not merely Trump. The U.S. Constitution itself contributes to the country’s crisis. As David Frum observed in a recent issue of The Atlantic, “If Trump is elected, it very likely won’t be with a majority of the popular vote” but rather because our system for selecting the president “has privileged a strategically located minority, led by a lawbreaking president, over the democratic majority.” America must fight the immediate threat, but it must also go beyond that and stop this problem at its core: addressing once and for all the aspects of the Constitution that enable an authoritarian leader to remain within striking distance of the presidency.
The original Constitution was written when democracy meant something radically different than it does today. Over time, Americans have amended the Constitution to make it more democratic, but shortcomings remain. The most significant, in our view, are the hardwired constitutional structures that are inimical to any modern understanding of democracy: the Electoral College, which could put Trump in office without majority support for a second time, and the equal allocation of two seats in the Senate to each state (an arrangement that gives a Wyoming voter 70 times more senatorial clout than a Californian). Reforming those structures would get the country much closer to the one-person, one-vote democratic ideal.
[Adam Serwer: Who’s afraid of calling Donald Trump an insurrectionist? ]
In 1787, few considered the one-person, one-vote principle to be foundational to democratic republican governance. Now it’s axiomatic. In American law, the principle traces its origins to a Supreme Court decision called Reynolds v. Sims, decided almost 60 years ago in an opinion by Chief Justice Earl Warren. “Legislators,” the Court noted, “represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” As Chief Justice Warren explained, once you see voters, not geographic units, as the source of democratic legitimacy, it quickly follows that “a majority of the people of a State could elect a majority of that State’s legislators.”
One person, one vote is a standard principle structuring democratic republics around the world. Contemporary commentators on the left and right espouse it. And yet, none of the three branches of the federal government has its members chosen in a manner consistent with this principle. The president is elected through an Electoral College system that encourages campaigns to ignore most states and that sometimes grants the presidency to a candidate who loses the overall vote, the Senate is grossly malapportioned, and the members of the Supreme Court are determined by those two flawed institutions together.
These antidemocratic structures have an odious historical pedigree. The Electoral College and the composition of the Senate resulted from compromises required to get slave states to agree to the Constitution by overweighting the influence of those states. And they continue to prevent the federal government from functioning effectively, particularly in areas where a coalition of senators representing a minority of the country can systematically block legislation. They also increase the risk of American democracy declining into authoritarianism. As the democracy scholars Daniel Ziblatt and Steven Levitsky have pointed out in this publication, “The U.S. Constitution, in its current form,”—meaning with the Senate and the Electoral College—“is enabling the radicalization of the Republican Party and exacerbating America’s democratic crisis.” They argue that these distorted institutions allow “the GOP to pursue extremist strategies that threaten our democracy without suffering devastating electoral consequences.”
Although the Senate and the Electoral College are not all that ails American democracy, they should be the focus of efforts to amend the Constitution. Some important improvements to our democracy (such as court reform) may be accomplished by enacting statutes; other valuable amendment ideas (such as taking money out of politics or enshrining a stronger right to vote) are worth pursuing but could be vulnerable to death by interpretation at the Supreme Court. Reforming the Senate and the Electoral College would change the underlying structures of our democracy. At the same time, because such reforms seek to rewire the basic constitutional machinery, they could not be accomplished by passing ordinary laws or persuading the Supreme Court to adopt better judicial doctrines; the only way to truly fix these structures is to amend the document.
[Nancy Pelosi: What January 6 made clear to me]
This will not be easy. We are under no illusions about the difficulty of our country re-brokering key elements of the compromises that first created a union, however imperfect, more than 200 years ago. Indeed, one of us works for a democracy organization within which progressives, moderates, and conservatives all committed to fixing some of the core problems of American democracy have yet to reach consensus on these types of reforms.
But debating them openly is what a healthy 21st-century democracy should do, and those who would preempt that debate on the theory that our Constitution is unamendable both do our future a deep disservice and misread our history. The history of constitutional amendment can offer some encouraging—and concretely useful—insights for considering the Constitution’s future. Those insights teach that amending the Constitution is always impossible, except for when it suddenly becomes inevitable.
Why has the U.S. lived with this creaky constitutional architecture for so long? Part of the answer is that a quest to amend the Constitution is viewed as futile, and with good reason: The procedures for passing an amendment, as provided in Article V of the Constitution, set out a daunting path. First, a proposed amendment must win support from two-thirds of the members of both the House and Senate, and it must then be ratified by three-quarters of the states. (In theory, the proposed amendment can also come from a convention established by Congress, if two-thirds of the state legislatures petition for one, before being submitted to the states for ratification, but that process has never been used.) An effort to restructure the Senate faces an additional obstacle: The text of Article V blocks amendments that would deprive any state of its “equal Suffrage in the Senate” without its “consent” (although nothing in the text prohibits amending that provision).
In a sense, amending the Constitution’s antidemocratic structures presents a sort of constitutional catch-22: Because a supermajority in Congress and a supermajority among state legislatures are required to amend the Constitution, a determined political minority can block constitutional change. The conventional wisdom is that Republican politicians have the most to lose from more democratic structures, so they have an incentive and the means to shut down any change. Amendments are thus treated as a nonstarter. One prominent constitutional scholar, in an influential 2006 book lamenting the Constitution’s democratic deficits, referred to the amendment process as an “iron cage” confining the country to a dangerously outdated national charter.
These procedures are overwhelming, but are they truly insurmountable? We might find inspiration in the successful effort, just over 100 years ago, to make the Senate more democratic through Constitutional amendment.
By the turn of the 20th century, the Senate was a mess—a millionaires’ club, filled with people who had no business being there. In the words of one influential journalist of the time, the Senate’s corruption was so profound as to render it a site of “treason.” This was no surprise given the way senators were selected. The Constitution gave state legislatures—not voters—the power to choose senators. But this was a disaster. For one thing, state legislators often couldn’t agree on whom to send to Washington, and many of the resulting deadlocks meant they sent no one. One study found that from 1891 to 1905, “eight state legislatures failed to elect senators and were without full representation from periods of ten months to four years.” The alternative to a deadlock was in many cases a “stampede election,” in which a legislature would vote several dozen times without converging on a winner. As the clock ran out, exhausted and acrimonious legislators would settle on characters with little to recommend them in terms of individual merit or popular standing within their state. The resulting scenes were sometimes reminiscent of a Coen-brothers script. Consider this description of the Missouri legislature’s efforts, in 1905, to appoint a member to the World’s Greatest Deliberative Body:
Lest the hour of adjournment should come before an election was secured, an attempt was made to stop the clock upon the wall of the assembly chamber. Democrats tried to prevent its being tampered with; and when certain Republicans brought forward a ladder, it was seized and thrown out of the window. A fist-fight followed, in which many were involved. Desks were torn from the floor and a fusillade of books began. The glass of the clock-front was broken, but the pendulum still persisted in swinging until, in the midst of a yelling mob, one member began throwing ink bottles at the clock, and finally succeeded in breaking the pendulum. On a motion to adjourn, arose the wildest disorder. The presiding officers of both houses mounted the speaker’s desk, and, by shouting and waving their arms, tried to quiet the mob. Finally, they succeeded in securing some semblance of order.
For years, people had proposed amending the U.S. Constitution to fix this mess. By the 1890s, the House of Representatives backed a constitutional amendment providing for the direct election of senators. But passing this amendment meant persuading two-thirds of the Senate to renounce the system that had made them senators in the first place, and then persuading three-quarters of the states’ legislatures to surrender an important power that gave them huge political influence in their home state and in Congress. And so, for almost two decades, the Senate itself was the graveyard for efforts to reform the Senate.
[George T. Conway III: The Colorado ruling changed my mind]
And yet, we all know how this story ends: The Constitution changed, and now voters choose their senators directly. The reason for that transformation is the Seventeenth Amendment, which became part of the Constitution in 1913. How did reformers a century ago pull this off?
They started with hacks and work-arounds. In Oregon, where voters were especially fed up with the Senate’s dysfunction, they enacted a law in 1901 that set up an advisory “election” to choose senators. The election lacked direct legal force, but the idea was to influence the legislators by requiring that the results be read to state lawmakers before they selected a senator. This initial experiment failed miserably: After the first advisory election, the legislators still fought and deadlocked, eventually selecting someone who had received exactly zero votes in the popular “election.”
Undeterred, the voters of Oregon tried again. In 1904, they passed another popular initiative with a more muscular policy to tame its legislature: This time, when state legislators ran for office, they would have to choose between two possible position statements accompanying their name on the ballots. They had to either pledge to vote for the candidate who received the most votes in the (formally nonbinding) election, or else stipulate that they would remain “at liberty to wholly disregard that vote.” This did the trick. From then on, Oregon legislators threw their support behind the popular-vote winner (even when it meant crossing party lines), and over the next several years, enough states adopted this policy that it came to be known as “the Oregon system.”
Alongside those state-centered strategies, advocates looked for ways to increase pressure on the Senate by making inaction seem worse to senators than allowing an amendment to move forward. To do so, they focused on that unused alternative pathway to amending the Constitution that we mentioned earlier. Article V requires Congress to summon a “convention for proposing amendments” if asked to do so by two-thirds of the state legislatures. The prospect of opening the Constitution to potentially sweeping revision through a convention struck many onlookers at the time as a scary proposition. (It still does today.) Beginning in the 1890s, a group of state legislatures that favored direct elections began submitting petitions to Congress seeking an amendment convention. According to one early-20th-century scholar, “Some senators who were opposed to popular election saw in this proposal of a constitutional convention a portent so big that they preferred to submit the specific amendment that was desired rather than incur the risks that might be opened up if such a convention were called.” In other words, many senators concluded that the devil they knew (direct election of senators) was preferable to a potentially open-ended mandate to rethink the constitutional order.
And then in 1912, after four decades of glacial and uncertain progress, the country sprinted toward amendment: Congress sent the proposed Seventeenth Amendment to the states, and a year later, the amendment was ratified. Voters would get to choose their senators.
The Constitution’s process for amendment is intimidating. Devoting time and energy to that process can feel futile, even politically naive. Indeed, the editorial board of The Washington Post once declared that “we may properly regard the Constitution as practically unamendable.”
It made that pronouncement in 1899. Americans would go on to amend the Constitution 12 times over the next several decades. That surge of activity would include—in addition to providing for the democratic election of senators—amendments granting women the right to vote, establishing (and then disestablishing) Prohibition, ending the poll tax, lowering the voting age, and clarifying the rules of presidential succession.
The last time Congress proposed a constitutional amendment that was successfully ratified was in 1971, when Congress sent to the states the Twenty-Sixth Amendment, establishing a universal voting age of 18. More than half of the U.S. population today wasn’t even alive in 1971. What’s become clear in the intervening years is that the current document isn’t up to the job of protecting and promoting a vibrant 21st-century democracy.
In the midst of an ongoing democratic crisis—where a leading presidential candidate speaks openly of acting as a “dictator” and exacting retribution against his political opponents—investing in long-term reform can seem like a fantasy. Failing to do so, however, carries its own risks. Without attending to the architecture of American democracy, the inherent weaknesses at its foundation may, in time, cause it to come tumbling down.