Vice President Mike Pence observed recently in an interview that Chief Justice John Roberts “has been a disappointment to conservatives.” He was referring specifically to a number of recent cases in which the chief justice sided with the four justices appointed by Democratic presidents against the conservatives on the court. The vice president’s comment is in keeping with a long-standing conservative frustration with the leftist drift of justices appointed by Republican presidents, a drift with no counterpart among justices named by Democrats. He emphasized that appointing “principled conservatives” to the courts would again be a theme of his and President Trump’s reelection campaign.
As necessary a step as that is, there is a much more expedient solution to the problem of our errant Supreme Court. Rather than relying entirely on the good faith of unaccountable life-tenured justices, no matter how well vetted they may be, we need to revive the people’s ultimate control over the meaning of our foundational document by reforming and updating the amendment process.
The underlying problem is not simply the failings of these black-robed mortals, but that the Supreme Court has become the Constitution. Through judicial interpretation, the Supreme Court has gained the power, essentially, to rewrite the Constitution as it sees fit. And the court’s revisions cannot be reversed or challenged. It is no wonder that control of a seat on the court generates passions exceeding those of any elected office.
The Constitution’s framers never envisioned the court occupying this role. Rather, they intended that constitutional change come about through the democratic political process of amendment. When they wrote Article V, which governs the procedure for passing amendments there were no other written national constitutions on which to model it. But what seemed a workable process for twelve states in the age of horse and sail is no longer sufficient for 50 states with a hundred times the population in a fast-paced world.
The United States Constitution is now the most difficult charter to amend in the world, and it shows. No one under the age of 50 would remember the last time our Constitution was amended in a regular fashion. (The 26th Amendment, which lowered the voting age to 18, was ratified in 1971. The 27th Amendment, which concerns congressional pay increases, was proposed in 1789 but not ratified until 1992—highly unusual.) One would have to be over 100 years old to remember the last time a major national issue was resolved by amendment (the 19th Amendment in 1920 extending the franchise to all women).
A few simple adjustments to Article V, however, could re-energize the amendment process.
The most useful adjustment would streamline the process for initiating amendment proposals by the states. Article V provides that amendments can be initiated either by a two-thirds vote of both houses of Congress or by a convention called by two-thirds of the states. No such convention has ever been called, nor is one likely ever to be called. Contrary to the framers’ intent, this has given Congress a de facto monopoly on initiating amendments and cut off the states’ ability to do so. And, despite enduring popular support for a number of both liberal and conservative amendment proposals, Congress has not initiated any amendments for almost half a century.
The convention of states mechanism was introduced only on the second to last day of the Constitutional Convention as an afterthought, and over James Madison’s very prescient warnings that the lack of procedural guidance in Article V would make it unworkable. In 1787, a proper convention might have been thought necessary for a simple reason—communications. When it could take weeks for a message to travel from one end of the nation to another, getting together in a convention was the only practicable way for states to hash out amendment proposals.
Obviously, that situation no longer exists. Now states can easily communicate with one another to coordinate amendment proposals without meeting in a formal convention. Allowing a few states to launch an amendment proposal without having to go through the archaic mechanism of a convention or the congressional bottleneck will democratize the amendment process by opening it to local grassroots efforts.
Another useful adjustment would be a slight reduction in the approval thresholds in Congress and the three-quarters of the states required for ratification. As the experience of anyone who has been on a committee or tried to run a dinner group reveals, getting nine people to agree is difficult (the number of states required to ratify when the Constitution was written), getting unanimity from 38 (the number of states required to ratify today) is impossible, as is also demonstrated by statistical analysis.
Of course, if a functioning amendment process were in place, we still would not be amending the Constitution every time there is widespread disapproval of a Supreme Court decision. A smoother process, however, would supply an alternative in cases that cause continuing harm, and that the court is failing to correct. Roe v. Wade is an obvious example.
It could also act as a psychological brake on the judicial amendment of the Constitution. No longer would the courts seem like the last resort for plaintiffs, such as same-sex couples wishing to marry and deemed sympathetic by elitist judges. Originalist judges could convincingly point to the amendment process, if it were again viable, as the proper avenue for revising the Constitution. If the people want such changes, let them be the ones to initiate it.
Writing about our constitutional republic, James Madison noted that it “has been the misfortune … of other nations that their Governments have not been freely and deliberately established by themselves,” whereas “the boast of ours [is] that such has been its source and that it can be altered by the same authority only which established it.”
Madison continued, however, “it is a further boast that a regular mode of making proper alterations has been providently inserted in the Constitution itself. It is anxiously to be wished therefore, that no innovations may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted.” Our Constitution should be able to change, but the agents of that change should be the people through the democratic amendment process, not the deceitful subterfuge of judicial amendment disguised as interpretation.
A revitalized amendment process also would facilitate other useful changes unrelated to bad Supreme Court decisions. Many amendment proposals stymied by our current insurmountable procedures enjoy broad support. For example, congressional term limits are supported by large majorities of Americans (including 76 percent of Democrats). It is inconceivable that such a reform will ever get two-thirds support in Congress—it must be initiated at the state level.
Whether one objects to Roe v. Wade or to Citizens United v. FEC, there is a broad consensus that we face challenges that can be addressed only on the constitutional level. A content-neutral reform of the amendment process could attract bipartisan support in our time when many long for national unity on something. And it would enable “We The People,” not five unelected and unaccountable judges, to have the last word once more on our fundamental national law.