Let states get the ball rolling on amendments
Our Constitution was meant to be amended, but our process for fixing it is broken. Americans haven’t proposed and ratified a new amendment for half a century — the longest gap since the Civil War. And with so few amendments, the pressure for change falls on judges, encouraging courts to get creative (and political).
New amendments need a two-thirds vote in both the House and the Senate, a high bar in a polarized Congress. If a proposal fails that test, we never find out if three-fourths of the states would have ratified it.
Lowering these thresholds might produce more amendments. But it would also produce more controversial ones, because a lower threshold lets narrower majorities rewrite our fundamental laws. Instead, we could keep the thresholds but flip their order, letting the states go first.
With this alternative, a new amendment proposal could advance one state legislature at a time. Once three-fourths of states had endorsed it, working out disagreements along the way, the proposal would go to Congress for ratification. The approval of two-thirds of each chamber might then be easier to come by, with both blue and red states already having signed on.
Article V of the Constitution, which spells out the amendment process, already lets the states call a new constitutional convention where amendments can be proposed. What I’m describing would be more like a “rolling convention”: not a single event to be called but a process in which state legislatures individually endorse an amendment and then send it to Congress for an up-or-down vote. Or if Congress wanted to propose its own version based on the state debates, it could.
Our last amendment, the 27th (on congressional pay hikes), was proposed by Congress in 1789 but languished for nearly two centuries. Then the states took another look, with ratification votes in one legislature after another. A step-by-step process like that was a good way to build consensus. Starting with that process rather than ending with it could be a good way to change our Constitution, too.
Stephen E. Sachs is the Antonin Scalia Professor of Law at Harvard Law School.