Your Turn gives Beast Inside members a chance to weigh in with questions and perspectives about what’s happening in the news for a chance to be published on the homepage. Thank you to member Kathy Masinter for this week’s questions on the prospect of new Constitutional amendments in the Age of Trump.
Is there an organization or group committed to getting new amendments to the Constitution passed?
The process of adding new amendments to the constitution is fairly straightforward but the political hurdles to do so are relatively high.
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You can add a new amendment in one of two ways. In Congress, any Representative or Senator can propose a new amendment. In order to become part of the Constitution, two-thirds of both the House and Senate must approve it followed by ratification in three-fourths (at least 38) of state legislatures.
In the event that Congress itself can’t pass new amendments, the framers established that two-thirds of state legislatures (at least 34) can sidestep it and initiate a Constitutional convention for proposed amendments. Any amendments proposed during that convention would then also have to be be approved by three-fourths of state legislatures
Organizing two-thirds of state legislators to initiate the process and three-fourths of them to propose and approve an amendment—an exercise involving thousands of state representatives—is both a daunting logistical and political ordeal. Not surprisingly, it’s never been tried. All the amendments added to the Constitution since it was first passed have come via the simpler and more direct route through Congress.
Still, the Congressional method is not easy by any means. The increasingly partisan makeup of Congress means that the two-thirds majorities in either chamber that could help drive through politically controversial amendments aren’t likely to happen any time soon. They’re even rare throughout the 20th century. The last time a political party had a two-thirds supermajority in both chambers was 1935-1939. Democrats, riding high on the Depression-era popularity of Franklin D. Roosevelt, controlled roughly three-quarters of the seats in each chamber. Even with his supermajorities, Roosevelt didn’t try to amend the constitution. When the Supreme Court struck down parts of the New Deal, he tried (and failed) instead to “infuse new blood into all our Courts” by proposing to expand the size of the court and give himself the ability to pack it with supporters. Since then, no party has enjoyed the same twin supermajorities and only rarely crossed the two-thirds threshold in a single chamber.
That high vote threshold, combined with the need for ratification in 75 percent of state legislatures, means any proposed constitutional amendment would likely need to have incredibly broad political appeal across the ideological spectrum. As early as 1823, the founders realized that the amendment process, intended to provide a measure of flexibility, was in fact fairly rigid. In a letter to George Hay, Thomas Jefferson lamented that “the states are now so numerous that I despair of ever seeing another amendment of the Constitution, altho’ the innovator Time will certainly call, and now already calls for some.”
Since it was ratified in 1791, the Constitution has been amended 17 times, with 12 of those amendments passed in the last 100 years. The amendments added to the Constitution since the end of World War II have mostly sidestepped the most controversial issues of the day and focused instead on small fixes. They’ve limited presidents to two terms; allowed Washington, D.C., the right to vote in presidential elections; clarified the rules of succession in the event a president resigns or is incapacitated; lowered the voting age to 18; and established rules for Congressional compensation. Only one amendment in the past century, the 24th, which banned racist poll taxes designed to prevent African Americans from voting, touched on a controversial political issue of the day.
The steep political hurdles to ratification haven’t stopped advocates from pushing for new amendments. Among the most popular is the Equal Rights Amendment. First proposed in 1921, the amendment provides that equal rights “shall not be denied or abridged by the United States or by any state on account of sex” and it was passed by both chambers of Congress in the early 1970s. Since three-quarters of states did not ratify the amendment by the original seven-year deadline imposed by Congress, or by a second three-year extension, many have concluded that the amendment failed and is now legally moot. Nonetheless, some advocates say the law remains unclear and states like Nevada and Illinois have taken up the banner over the past year and ratified the amendment, leaving it one state shy of a three-quarters threshold.
Perhaps not surprisingly, the holdout states tend to be red, southern, and conservative. So far Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia have all failed to ratify the ERA.
Other proposed amendments—like ones mandating a balanced federal budget, banning flag burning and desecration, and banning gay marriage—have all fared even worse. The Citizens United Supreme Court case, which allowed outside groups to take and spend unlimited amounts of money in election advertising, has also led senators like New Mexico Democrat Tom Udall to introduce an amendment that would effectively overturn Citizens United. If passed, the Democracy for All Amendment would allow Congress and the states to regulate campaign spending and prohibit corporations “from spending money to influence elections.”
But the Trump era and the various constitutional crises it has wrought has inspired a new round of constitutional brainstorming. President Trump’s liberal use of pardon power and the continuing investigations into Russian collusion have prompted Rep. Al Green (D-TX) to introduce an amendment that would explicitly deny the president the ability to pardon himself. The fact that Trump became the second Republican in recent years to lose the popular vote but still win the presidency has Democrats like Alexandria Ocasio-Cortez calling for the abolition of the electoral college. And lest we forget, Kanye West has recently come out swinging against the 13th amendment on the misguided belief that the Civil War-era amendment abolishing slavery is, in fact, “slavery in disguise.”
