The U.S. Constitution Should be Easier to Amend

By Roy UIrich

The familiar part of Article V of the Constitution says that Congress, with the two-thirds approval of both the House and the Senate, can propose amendments to the Constitution, subject to ratification by three-fourths of the states.

Article V should be amended by reducing the state ratification threshold from ¾ to two-thirds.. This would make the process of amending the constitution a little easier. And it would align the United States with other western democracies such as Germany and France.

This proposal should be considered by both major parties because whether your cause is the adoption of the equal rights amendment or adoption of a balanced budget constitutional amendment, your road to success has been slightly eased.

“No society can make a perpetual constitution,” Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. “The earth belongs always to the living generation and not to the dead… Every constitution, then, and every law, naturally expires at the end of 19 years.” By that calculation, we’re more than two centuries behind schedule for a long, hard look at our most sacred of cows.

Eight years ago, the recently-departed Supreme Court Justice Ruth Bader Ginsburg said in a television interview in Egypt that “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Ginsburg urged Egyptians instead to emulate more recent legal documents, which allow amendments to be added more frequently, including the constitution of South Africa (1997), the Canadian Charter of Rights and Freedoms (1982) and the European Convention on Human Rights (1950). The United States is an outlier in this regard.

Furthermore, a study conducted by David Law, a law professor at Washington University in St. Louis, concluded that our Constitution’s global appeal has diminished markedly over the past half century. Fewer and fewer nations are modeling their own constitutions on the American version.

University of Texas Constitutional Law Professor Sanford Levinson may have said it best: “We must recognize that substantial responsibility for the defects of our polity lies in the Constitution itself. A number of wrong turns were taken at the time of the initial drafting of the Constitution, even if for the best of reasons given the political realities of 1787…lf I am correct that the Constitution is both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive, then it follows that we should no longer express our blind devotion to it.”

The Constitution we have practically guarantees gridlock and is almost impossible to change. It is more a relic of the 18th century than a workable plan for government in the 21st. Blind devotion to it should end. Put differently, it should not be viewed in sacred terms.

We must begin to think of it as a fallible legal document that should be periodically updated with the times. The first step to accomplishing that goal would be to amend Article V by reducing the state ratification threshold from ¾ to 2/3.

The writer teaches constitutional law at U.C. Berkeley.

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