By Wilfred U. Codrington III
April 20, 2023
*This is the seventh article in our series The Promise of an Amendable Constitution in an Uncertain Era. You can view the rest of the pieces in the series here.*
At this point, the difficulty of changing the text of the U.S. Constitution is well-established. Scholarship has parsed this issue, examining it from a range of perspectives. The arduous federal constitutional amendment process stands in contrast to the procedures established by the states, which make amending their charters far easier, as well as those set out in various constitutions around the world, whose terms also render them relatively less challenging to alter. Scholars have made assessments based on sheer numbers, highlighting the paltry number of amendments to the Constitution over the life of the document. The findings elicited from every angle of study all yield a singular conclusion: the elevated bar that Article V sets for amendment—requiring agreement among two-thirds of the members of both houses of Congress to propose an amendment and subsequent ratification three-quarters of the states1There is an alternate, frequently threatened but never-used approach whereby a convention would propose amendments for the states’ consideration. See John F. Kowal & Wilfred U. Codrington III, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union 253-261 (2021).—interacts with an array of external conditions to make the U.S. Constitution perhaps the most difficult to amend.
Yet a substantial portion of the document’s text consists of amendments. A full 40 percent of the Constitution was written after the Philadelphia Convention in 1787. It is thus worth exploring how, notwithstanding the amending provision’s onerous double supermajority requirement, 27 additional articles have succeeded in becoming part of our fundamental law. That is, what are the conditions that have made amendment possible in the past? Indeed, that is an important part of the task that my co-author and I set upon in The People’s Constitution. After narrating the history of Article V, including its successful and unsuccessful use over the course of two centuries, we conclude that five phenomena have tended to accompany—and sometimes catalyzed—constitutional amendment in the United States.
In relative terms, ill-conceived Supreme Court decisions have been the most reliable heralds of constitutional amendment. The Constitution has been altered on more than a half dozen occasions to displace the poor judgment of the Court, including the Reconstruction amendments’ overruling of the 1857 Dred Scott v. Sanford decision that brazenly disclaimed the humanity of Black people, and the Twenty-Sixth Amendment’s repudiation of Oregon v. Mitchell, the 1970 decision in which the justices invalidated a statutory provision that sought to lower the national voting age to 18 years old. Constitutional amendment has likewise emerged amidst state-level constitutional experimentation. Prior to the Seventeenth Amendment’s ratification, for example, whereupon the electorate of each state began to vote for U.S. senators directly, most states had already embraced the practice, using their own laws to work around the federal Constitution’s delegation of the task to state legislatures. And we have seen constitutional amendments materialize following periods of extreme political polarization, in the aftermath of war and national conditions of insecurity, and in the face of seismic social change. Some of the factors, like misguided Supreme Court decisions, appear to be more causally related to amendment campaigns. Irrespective of their power to impel reform, however, the factors tend to reveal themselves in the leadup to and during periods of amendment, and their convergence has historically boded well for the prospect of constitutional change.
Those periods of large-scale social change, characterized by sizable demographic shifts and economic and technological transformations, have typically been accompanied by broad movements with large activist segments waging contentious political campaigns to force the country to reckon with the new and developing conditions. At times, that strategic activism has targeted the Constitution, seeking its reform to account for societal changes and learned experience. The nineteenth-century push to end slavery was part of a global abolition movement whose successes in the U.S. came in state constitutions and culminated in 1865 with the ratification of the Thirteenth Amendment, paving the way for the revolutionary amendments of the Reconstruction era. The temperance and suffrage movements, among whose ranks were erstwhile abolitionists, similarly had their sights on constitutional reform. Their decades of organizing ultimately bore fruit when the Eighteenth and Nineteenth Amendments were ratified in 1919 and 1920 respectively. The Twenty-Fourth Amendment, whose ratification in 1964 outlawed poll taxes in federal elections, was tied to the cresting Civil Rights movement (though that constitutional campaign had several complexities, including the counterintuitive fact that Senator Spessard Holland, perhaps the measure’s greatest proponent, had white supremacist motivations for his advocacy and support). To be certain, the most impactful reforms from that storied era, which movement leader Bayard Rustin correctly predicted would “undoubtedly be recorded as the period in which the legal foundations of racism in America were destroyed,” came through informal constitutional amendment, i.e., they were elicited through non-Article V means like landmark wins at the Supreme Court and the transformative super-statutes wrought through constitutional politics. And though activists (many of whom participated in the movement to dismantle Jim Crow) successfully pushed Congress to propose two ambitious amendments in the 1970s, the proposed Equal Rights Amendment and District of Columbia Voting Representation Amendment fell victim to the nascent conservative counter-movements that emerged in response to the accomplishments of the Civil Rights era. Whether or not an effort to amend the Constitution prevails, however, the broader point stands: several of the amendment campaigns were buoyed by robust social movements. Indeed, relevant social movements set the backdrop for the enshrinement of every rights-focused amendment adopted after the Bill of Rights.
That social movements drive constitutional reform makes sense because, as Professors Lani Gunier and Gerald Torres wrote, “[t]he leaders of political institutions get their courage to act from the people themselves.” And unlike many state constitutions, which can be amended via popular initiative or referendum, there is no direct democracy route to formally amending the U.S. Constitution. Thus the encouragement of a broad-based, engaged, and activist citizenry working through coalitions is key; it can make the difference between federal lawmakers’ frustrated resignation to an unworkable status quo and their willingness to lead visionary change. This is, in effect, the constitutional corollary to Newton’s first law of motion, which holds that an object at rest will remain at rest until acted upon by some external force. In the context of amendment, social movements with a constitutional agenda comprise one of those critical outside forces. Said differently, the American people must move to amend.
If social movements are an important component in the engine of constitutional change, it becomes easier to understand why amendment has stalled. Today, during what several scholars have persuasively argued is an unprecedented and acutely revanchist period in constitutional history, a dispersed movement with reform of the nation’s charter as its North Star is woefully absent. To be sure, there are some in the gender justice movement who have committed themselves to the fight for the Equal Rights Amendment through legislative advocacy and litigation. Certainly, that important battle to constitutionalize the principle of sex equality should continue. But the contemporary push for the ERA is, qualitatively, less of a force than its counterpart from a few generations ago; it not only lacks the confrontational tactics, strategy, coordination, vision, and imperative that characterized the effort underway in the 1960s and 1970s, it has also failed to attract a comparable share of the nation’s attention and, more importantly, level of citizen participation.
In the area of voting rights, it was almost two decades ago that then-Professor Jamie Raskin published a paper calling for the Right to Vote amendment. Notably, 49 state constitutions contain text assuring their citizens the right to vote. Some of those provisions have resulted in judicial decisions invalidating strict voter identification laws and extreme partisan gerrymanders, for example, problems invited by the Supreme Court after its decisions in Shelby County v. Holder and Rucho v. Common Cause. Yet the federal Constitution lacks such an affirmative guarantee. A consequence is that advocates in pursuit of a pro-voter agenda are all-too-reliant on an increasingly meager voting rights jurisprudence stemming from disconnected constitutional provisions. And while a growing number of scholars—myself included—have called for a Right to Vote amendment, no corresponding movement for universal suffrage has materialized to press lawmakers to propose the reform.
Nor is it simply the dearth of movement activity aimed at explicit constitutional safeguards for sex equality or the unencumbered right to the franchise. Despite the myriad concerns of constitutional import revealed over the passage of time, including problems brought on by recent occurrences, U.S. society is noticeably devoid of movements whose members are engaging in amendment politics. Consider some of the most significant events that have occurred in the intervening period since Congress last proposed an amendment nearly a half-decade ago: several military engagements; the advent of the internet; the 9/11 attacks; the 2008 financial crash and Great Recession; the coronavirus outbreak and COVID-19 pandemic; the Electoral College awarding the presidency to the popular vote loser in both 2000 and 2016; three presidential impeachments; the slaying of countless Black Americans like Trayvon Martin, Michael Brown, Ahmaud Arbery, and Breonna Taylor; the Supreme Court’s overruling of Roe v. Wade and Planned Parenthood v. Casey, and the list goes on. Each event listed in this series implicates constitutional norms and raises questions that go to the essence of constitutional governance. Yet, there is scarcely a trace of a mass movement whose participants seek to address any of them through constitutional revision.
That new and existing movements fail to engage in amendment politics as part of a grand strategy to advance social change is a testament of America’s deficient constitutional culture. As compared to that of other nations, “constitutional culture” in the United States, “the understandings of role and practices of argument that guide interactions among citizens and officials in matters concerning the Constitution’s meaning,” is quite stilted. This is due to several things, not least of which is our emphasis on litigation—and Supreme Court litigation in particular—as the way to derive meaning from the national charter and effect its change. As a default, Americans’ engagement with higher law tends to treat the Constitution as a legal document, and to ignore its potency as a political one. But while the former emboldens the elite lawyer class, the latter empowers the People. And as history suggests, when the justices are the sole referees, the People stand to lose the contest for the Constitution. One First Street is not their homecourt.
Perfecting the Constitution is what progressives do—or at least did—and social movements have been integral in their previous endeavors to achieve a more perfect union. And today, more than any time in modern history, elements of the U.S. political system need to be repaired and even reconceptualized if it is to remain competent to govern the American people and the nation is to retain its status as a global leader. In declining to foster activist movements and leverage them in the project of constitutional reform, progressives surrender a valuable tool in that quest.
Wilfred U. Codrington III is an Associate Professor of Law at Brooklyn Law School and Fellow at the Brennan Center for Justice at N.Y.U. School of Law. He is the co-author of The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union (New Press). His research and scholarship focus on constitutional reform and election law.
Suggested Citation: Wilfred U. Codrington III, Move to Amend, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).
- 1There is an alternate, frequently threatened but never-used approach whereby a convention would propose amendments for the states’ consideration. See John F. Kowal & Wilfred U. Codrington III, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union 253-261 (2021).