By Caroline Fredrickson
April 16, 2023
*This is the fourth 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.*
After the United States Constitution was ratified in 1788, it was quickly amended by the Bill of Rights in 1791 and the Eleventh and Twelfth amendments which were ratified in 1795 and 1804, respectively. This rapid-paced change, however, was followed by only 17 more amendments over the course of the succeeding 219 years. To a great extent, the Constitution has remained static – many would say stagnant – because of the great difficulty in amending it. Because of its limitations with respect to its application to a modern world, many find it too difficult to amend. Article V provides the following:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
This requirement, that two-thirds of both houses of Congress must approve an amendment, reinforces the ability of small and rural states to thwart changes demanded by the vast majority of the population, especially because the Senate is grossly unrepresentative of the people. In addition, this provision provides a single state with the power to derail efforts to make the Senate more representative of the people. And, for amendment proposals, since it requires a super-majority of 37 states, the state legislatures of 13 states can block any by failing to ratify, which could be said to allow a veto by former slaveholding states. Unlike modern constitutions and U.S. state constitutions, the federal Constitution allows no role for the people directly to take part in amending the Constitution but instead relies on the states and Congress to initiate and ratify changes.
In the past two years, I have been part of two discussions among scholars about how to redraft Article V in light of what we know now. One was organized by the National Constitution Center in Philadelphia, which engaged “three teams of leading constitutional scholars—team libertarian, team progressive, and team conservative—to draft and present their ideal constitutions.”1The other project was organized by Michael Tomasky of the Democracy Journal and included a broad array of progressive scholars. I will not discuss it here because of length constraints, except to say that we also agreed that Article V needed to be completely reformed. See particularly Julie Suk’s eloquent discussion of the proposed change. Team libertarian was led by Ilya Shapiro, then of the Cato Institute, and included Timothy Sandefur of the Goldwater Institute and Christina Mulligan of Brooklyn Law School. Team conservative was led by Ilan Wurman of Arizona State University College of Law and included Robert P. George of Princeton University, Michael McConnell of Stanford Law School, and Colleen A. Sheehan of Arizona State University.
The Progressive “Team,” which I led and which included Jamal Greene of Columbia Law School and Melissa Murray of New York University School of Law, developed a new amendment provision for inclusion in our proposed redraft Our Constitution enables amendments to be proposed not just by two-thirds of members of each House (or two thirds of states) but by Members of each House (or states, for constitutional conventions) representing two-thirds of the U.S population. Likewise, ratification may be effected by three-fourths of the states (as now) or by states representing three-fourths of the population. The new ratification number would not apply to amendments altering suffrage in the Senate, though changes to suffrage would be permitted with the agreement of three-fourths of the states.
After a review of all three draft constitutions, it became clear that we actually had room for consensus – such a rarity in the moment we are in! So we jumped on it to come together in a “constitutional convention” to see if we could actually agree on language in several areas. We were in fact able to agree on five amendments, including one to reform Article V.
As I wrote in the introduction to those amendments, “It was gratifying to see the possibility for agreement across the political and ideological spectrum on some practical and important reforms but also to see the recognition from the other teams that the Constitution is not perfect and could and has been improved over time.” The changes we agreed to included the following: (1) Supreme Court term limits, (2) making it easier to amend the Constitution, (3) reforming the impeachment process, (4) allowing for legislative vetoes of executive and regulatory actions, and (5) ending the natural born citizen requirement for the presidency.
The Progressive Team was adamant about attempting agreement on a reformed Article V and thus were pleased we were able to hammer out some language we could all agree to. The new language, while more constraining than the version in the Progressive Constitution, nonetheless, would provide more ability to change an antiquated document. The amendment would lower the threshold for amendments from the current two-thirds of Congress and three-quarters of the states to three-fifths of Congress and two-thirds of the states. We also successfully persuaded the other teams to agree to a provision that would allow states representing three-quarters of the population to ratify an amendment to enable amendments that are broadly popular to move forward and not be thwarted by states representing a small swath of the people.
Importantly, we were also able to convince the other teams to agree to language that would make it possible to change the structure of the Senate. In its current form, Article V makes it virtually impossible to modify equal state suffrage in the Senate, thereby enhancing the power of small and rural states. The Progressive Constitution had addressed this issue by continuing to give every state at least one Senator but allowing larger states an incremental increase – which would have increased the size of the Senate negligibly. While we could not get this change agreed to, the three teams did concur on language that states that changes to equal suffrage in the Senate would require three-fourths of both Houses of Congress and three-quarters of the states. While this is not what we had called for in the Progressive Constitution, nonetheless, it would ensure that going forward the Senate’s structure would not be set in stone. Indeed, we felt that even getting conservatives and libertarians to agree that this is a problem was a great success.
In 2023, many feel that the project of the “United States” is facing a dangerous crisis of polarization and partisanship that is undermining our democracy and threatening fundamental rights and liberties that inhere in “we the people,” all of us. While that is extremely true, this effort, organized by the National Constitution Center, does provide a ray of hope in a dark time. I plan to cling to it.
The following amendment shall supersede Article V of the present Constitution:
§ 1. The Congress, by three-fifths vote of both Houses may, or on the Application of the Legislatures of a majority of the several States or by States representing two thirds of the population according to the latest national census shall, propose amendments to this Constitution, which shall be valid as part of this Constitution if ratified, within seven years of being submitted, by the legislatures or ratifying conventions of two thirds of the several States, or of States representing three fourths of the population according to the latest national census, in accordance with the constitutional processes of each State.
§ 2. Upon the application of the legislatures of two thirds of the States or of States representing three fourths of the population according to the latest national census, there shall be a general convention authorized to propose revisions to the Constitution, to be conducted in accordance with procedures enacted by Congress, which revisions shall be valid as part of this Constitution if ratified in like manner as amendments.
§ 3. No State, without its consent, shall be deprived of its equal suffrage in the Senate, absent an amendment to the Constitution proposed by three fourths of both Houses and ratified by three fourths of the several States in accordance with the constitutional processes of each State.
§ 4. While an amendment, having been proposed, is pending ratification in the States, a State may revoke its previous ratification at any time before the requisite number of States has ratified the amendment.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the present Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Caroline Fredrickson, Distinguished Visitor from Practice, Georgetown Law, and Senior Fellow, Brennan Center for Justice.
Suggested Citation: Caroline Fredrickson, “We the People” Can Fix What’s Broken – If We Try, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).
- 1The other project was organized by Michael Tomasky of the Democracy Journal and included a broad array of progressive scholars. I will not discuss it here because of length constraints, except to say that we also agreed that Article V needed to be completely reformed. See particularly Julie Suk’s eloquent discussion of the proposed change.