I joined Virginia Prescott for episode 4 of the interesting Civics 101 podcast series, hosted by New Hampshire Public Radio, this one covering the Article V constitutional amendment process. You can also find it at NPR and AudioBoom. Description:
It’s been 25 years since the last constitutional amendment was ratified. How hard is it to change our most sacred document? We discover that there are not one, but two ways to amend the constitution – and one of them has never been used. Walter Olson, senior fellow of the Cato Institute explains that the founders didn’t exactly spell the process out clearly.
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Then there’s the third way to amend the Constitution, the easiest and most often used – find a sympathetic federal court and have it discover a right which requires what you want or prohibits what you don’t want.
We have forgotten what Lincoln concluded – that the Supreme Count can be wrong, so that the political branches have the right and power to over rule the courts on Constitutional interpretation. He was discussing the Dred Scott decision, and, perhaps that’s not a comforting example since to over rule the holding required the Unpleasantness Between the States.
Still, until it is realized the courts only interpret the Constitution, as one equal branch with no authority to make final, binding interpretations, the amendment by judicial fiat will continue to be the norm. But, rejecting that notion and adopting one based on a democratic political process is likely too frightening since democracy is messy, whereas dictatorship, even judicial dictatorship, is much more organized and neat.
“so that the political branches have the right and power to over rule the courts on Constitutional interpretation.”
Yes they can, and the (only) way to do that is by a constitutional amendment.
That amendment, the 27th, was ratified more than two hundred years after being submitted to the states for ratification. So that may be one empirical bound on the measure of how hard it is to change.
Actually, you may have addressed that in the original recording, and NHPR elided it in the podcast. I noticed that NHPR apparently edited your comments for time.
Your commentary was edifying and clear in any case.
It has long been my theory that the necessary coalescence of viewpoints to get a constitutional amendment through is long gone. Borne out by nothing of substance happening on amendments during my lifetime. Our politics are increasingly divided along interest lines — I see little chance that those lines will be erased to allow for any national agreement on anything big enough to put into the Constitution. Wfjag has it right on the only way the constitution will be amended from here forward.
The 1787 Constitutional Convention was technically a “runaway” convention. The States sent their delegates to Philadelphia with the understanding the convention was “for the sole and express purpose of revising the Article’s of Confederation”. Instead, they produced an entirely new Constitution that established a federal republic. “If you can keep it”.
I think any Constitutional Convention under Article V would be another runaway. We’d likely end up with a document that would dwarf the 70,000-word EU Constitution, and be written in unreadable legalese. I think, in that way, we’d lose our federal republic.
https://www.cato.org/publications/commentary/hard-look-european-constitution
Yeah, and then we’d be told that the States would have to ratify it – so that we could find out what is in it.
No. Thanks all the same. But please, no.