The United States’ Unamendable Constitution

It&#x27;s an interesting article and if you bounced off it because you had a visceral reaction to the premise, like I did at first, I&#x27;d recommend taking another whack at it. Jill Lepore, if you&#x27;re not familiar with her work, is a historian with a reputation as a more rigorous version of people like Howard Zinn.<p>I don&#x27;t think it&#x27;s a <i>good</i> article though. In particular, I don&#x27;t think it coheres. It&#x27;s about how the modern Constitution has become &quot;un-amendable&quot;, but it spends a big chunk of the middle of the piece demonstrating the Constitution was never really all that amendable: successful amendments are extraordinarily rare, especially when they&#x27;re about big-ticket issues. Our biggest structural changes occurred after an enormous civil war.<p>There&#x27;s a sort of obvious framing to the piece that the Constitution should be more fluid and easy to amend. I think 2022 is a very weird time to prioritize that. I&#x27;m not a doomer about US politics, but they&#x27;re not in a very good state right now. Lepore talks about national abortion, immigration, and firearms policy and how they&#x27;d be impacted by a more readily-amended Constitution, but I think she should take a wider view and look at things like how speech and free association would be impacted.<p>I&#x27;m a liberal, in a cohort of people this article portrays as atypically open to changing the Constitution, and I think the rigidity of the Constitution is probably it&#x27;s greatest strength.

Author complains these amendments cannot be passed because of political polarisation. That polarisation is the very reason why those amendments shouldn&#x27;t pass. You can only change the constitution if there is a consensus, by design. If you want to make a change that half the country is dead against, all the systems of balance of power will work against it (two chambers - one by headcount the other by states, filibuster, presidential veto, high threshold of consensus for changing the constitution), as it should. And the constitution should be the hardest of all paths, since it is senior to all others.

&quot;Seventy-two per cent of Republicans think that the Constitution is basically fine as is; seventy-two per cent of Democrats disagree.&quot;<p>Of course this has nothing to do the actual Constitution. It&#x27;s a statement about each party&#x27;s (dis)satisfaction with the current success of their party.<p>The optimist in me wants to believe that even in this polarized culture politicians could compromise and find a middle ground on many issues, conceding to the other side on one issue in order to get something for their side for another issue. That could be done without any changes to the Constitution. But alas, the middle ground has been lost.

Russia and China recently amended their constitution to ensure their respective leaders can stay in power permanently. Having some unchangeable bedrock in a country seems very valuable as we are all vulnerable to tyrants at some point in history.

I think the single biggest vulnerability of the constitution, which they had no chance of predicting, is mass media and the way it changed the dynamics of politics.<p>Today it is a mediacracy undergoing a violent phase transition from tv and newspapers traditional media control to social media and search algorithms.<p>At the root of the problem is that the media is owned by very few oligopolies, and they answer to no one. The potential power from controlling them outshadows their profits.

If at times the Constitution is not responsive enough, it does have one big benefit: it is almost impossible to change it to do something like, allow a President to serve life tenure, and yet we see a number of places where such constitutional changes were pushed through by those who would be dictators, or sought more powers as executive(Russia&#x27;s in 2020, China in 2018, Ecuador in 2016, Turkey in 2017, etc.

Anyone who advocates for making the constitution more amendable should find a group to sit down and play a game of Nomic[1] until completion. It is the fastest way to internalize the meta-strategy around making it easier or more difficult to make amendments. Is there a disconnect between the current political ruleset[constitution] and the way the political game is played? Yes, but probably not for the reasons you think.<p>1. <a href="https:&#x2F;&#x2F;nomic.fandom.com&#x2F;wiki&#x2F;Rules" rel="nofollow">https:&#x2F;&#x2F;nomic.fandom.com&#x2F;wiki&#x2F;Rules</a>

I consider myself a patriotic American, but I don&#x27;t know that the government even follows the Constitution in the first place.<p>NSA has been hoovering up data of innocent Americans, and the IC in general, works with foreign ICs, to target Americans without reasonable cause, just blanket vacuuming.<p>Much of the govt, including federal, state, and local, has been purchasing private data without a warrant signed by a judge. Or they tap incoming fiber. Am expecting the next shoe to drop around traffic buying, not just location, without a warrant.<p>Civil forfeiture is rife, violating the 5th and 14th. It is mainly targeting minorities<p>Likewise, traffic cameras proliferation, mainly targeting minorities.<p>US Govt, state govts are actively pressuring BigTech to censor, causing them to become state &quot;actors&quot;, and &quot;agents of the State&quot; themselves<p>We&#x27;re coming off multiple scandals of govt employees criminally pursuing regionally unpopular politicos and their allies, but escaping sanction through regionalized trials<p>Large govt decrees ended rent collection, closed businesses, and did untold damage to the US. I can understand this, but not the lack of compensation to all the landlords that have been ruined by this.<p>The problem we have is, the US Constitution isn&#x27;t being followed in the first place.

Controversial policy cannot and should not become amendments. There is very little that everyone agrees that the government should do and the government is already very powerful. That&#x27;s why constitutional amendments are so rare.

The notion of amending the constitution in response to political dysfunction is a bit paradoxical, because dysfunctional politics are upstream of the amendment process. Dysfunctional politics will likely mean a dysfunctional amendment.<p>Some thoughts on resolving the paradox:<p>* If the constitution had been easier to amend in the 90s and 00s, perhaps some wise politicians would&#x27;ve seen whispers of the current dysfunction and passed an amendment to preempt it. Maybe there could be a &quot;department of the future&quot; that&#x27;s trying to figure out how things could go off the rails and what amendments we could pass in advance to help.<p>* If amendment was done according to an entirely different process (e.g. sortition <a href="https:&#x2F;&#x2F;www.sortitionfoundation.org&#x2F;case_study_america_in_one_room" rel="nofollow">https:&#x2F;&#x2F;www.sortitionfoundation.org&#x2F;case_study_america_in_on...</a> -- essentially a citizen&#x27;s assembly), that could solve the paradox. Especially if the new process was something slower and somehow less prone to dysfunction. It&#x27;d be like an additional check &amp; balance. Sadly, we don&#x27;t have much experience with sortition or other very different processes, and it seems risky to entrust them with something as important as the constitution. Maybe the rule could simply be that the legislature is required to vote on whether to adopt the changes that come out of the sortition process?

At this point, is the difficulty in amending the Constitution actually a bug? Seeing the polarization, I could see our Founding Fathers deciding that&#x27;s actually a feature right now because it prevents one side from getting the upper hand and telling the rest to stuff it.

The constitution is perfectly easy to amend when we have consensus. The problem is achieving consensus.<p>I don’t think making the constitution easier to amend would make it any easier to achieve national consensus.

There are a lot of comments here about how the founding fathers intended this or that as if they were a unified group of people with a single vision. This is far from the truth. The original attempt at a governing document wasn’t the constitution, it was the articles of confederation, which failed. The constitution was a compromise. Some wanted a king, some wanted direct democracy and there were people in every shade in the middle.<p>I read an autobiography of Benjamin Franklin today. He spoke highly of a religious sect that refused to write their laws down. They felt it was absurd to think that they had come up with the perfect laws that would govern all future generations. If they wrote it down, future generations would consider it sacred and would dogmatically enshrine those views rather than improving upon them. Ironic that we do the same to him.

I like the idea of the Constitution as a living document, updated over time, but I&#x27;m also really glad it&#x27;s so hard to amend. It&#x27;s not perfect, but there are usually extremely good reasons for pretty much everything in there, and so if we&#x27;re going to change something, it seems like a prerequisite should be a deep understanding of why something was put in there in the first place.<p>Take the Electoral College. It&#x27;s en vogue right now to talk about abolishing it (it&#x27;s also popular to talk about it as if it&#x27;s sacred, and in both cases, it seems a lot of people&#x27;s feelings about it are based on whether or not their favorite candidate won a recent election, but I digress). If people want to change or even remove it, that&#x27;s fine, but they should first have a very deep understanding of why it is how it is - an understanding that&#x27;s a bit deeper than they got in their high school U.S. Government class.<p>If you go back and read the Federalist papers, for example, you can&#x27;t help but come away with a profound admiration for how much thought people put into these things, even if you don&#x27;t agree with their conclusions. There&#x27;s just a ton of wisdom and thought there. If you can come up with something better, great, but among other things you really should have to articulate their original reasoning and make a good case for how their concerns aren&#x27;t relevant now, or that your idea is a better set of tradeoffs, etc. Just saying that the EC isn&#x27;t fair falls way short of that - yeah, they thought about stuff like that, a lot.<p>Another reason why it&#x27;s good to have a hard-to-modify Constitution <i>right now</i> is because we are currently pretty terrible at negotiating politically and building any sort of consensus - the hard work of bridge building is often skipped, and so more legislation is passing with the slimmest of majorities, and each presidency seems to do more via executive action. (And to whoever is tempted to respond with, &quot;yes, the X party is terrible at this&quot; needs to take a closer look at their preferred party, because both of the 2 major parties are terrible at it, just often in different ways. But they are both corrupt and broken to the core, at least on the national level) If we can&#x27;t pull back from this and get to a more sane working and collaboration environment, the &quot;unamenadability&quot; of the Constitution might be the thing that saves us (or, maybe, the thing that delays our drive off the cliff by a few years at least).

I propose a constitutional amendment to ban political parties. ;)<p>But seriously, that would be interesting. Our Founding Fathers never intended there to be this entrenchment of two parties. It would make polarization harder because, well... what are the sides? It would also force greater civic participation to know what candidates actually stand for, and not just at the federal level.

&gt; An unamendable constitution is not an American tradition. U.S. state constitutions are much easier to amend than the federal Constitution.<p>This is the problem and the solution. The more power and control that&#x27;s been forfeited to the Federal gov, the less and less effective that entity has become. Yet the less effective it becomes the more push there is to give more power to Washington DC.<p>The solution is simple. Return - at least temporarily - to more of a pre New Deal mindset.

I wish people (of both sides) who declare &quot;the system is broken&quot; etc would seriously ask themselves, is it because your particular issue didn&#x27;t go your way? How would we run a stable country if that were the principle to follow?<p>There was the line &quot;it may backfire on you sooner than you thought&quot; and I think there&#x27;s some good caution in that statement. Take your own argument out of the picture -- would you be happy for the principle by which you&#x27;re suggesting we operate be on the other foot and the majority be in the hands of your opponent?<p>I come to think that democracy is, more than anything, learning how to lose gracefully and without a revolution. So many people now seem to believe, if I lose, it must be broken and deserves a revolution. On both sides.

United States unamendable national and state borders are also a factor. Whatever one thinks about Brexit, it allowed EU to continue with countries that are committed to EU and for UK to consider what&#x27;s best for UK, including welcoming Hong Kong residents not enthusiastic about takeover by China. If California and Texas go their own way and borders between states are adjusted to accommodate red and blue area, maybe current system is all that is needed. CA and TX can be still part of Nato and have a free travel arrangement with each other, changes do not have to be extreme.

&gt; hasn’t been amended in any meaningful way since 1971<p>Already inserting subjectivity into the discussion to support it&#x27;s premise. I&#x27;m not going to like this article.<p>&gt; It’s always been hard to amend the Constitution. But, in the past half century, it’s become much harder<p>Yes, systems find stability, turbulence finds a local minima. Of course a lot more happened early on than later, if you expect a flat, linear, normal distribution of changes to something over time you don&#x27;t know enough about what you&#x27;re talking about to be talking about it.<p>Maybe the constitution has lasted 200 years precisely <i>because</i> it is hard to modify. A constitution should be harder to change than just passing any old piece of legislation. If it&#x27;s just as easy as passing any law it&#x27;s not a constitution, just another law.<p>If you think it&#x27;s hard to amend the constitution, just wait until a constitutional convention convenes in DC in the next 5-10 years, we are almost there, something that hasn&#x27;t happened since the Continental Congress, it&#x27;s going to happen soon and it&#x27;s going to be very interesting. I hope they ratify the equal apportionment amendment.

<a href="https:&#x2F;&#x2F;archive.ph&#x2F;PXhv8" rel="nofollow">https:&#x2F;&#x2F;archive.ph&#x2F;PXhv8</a>

In the US, we used to amend constitutions fairly regularly (at the Federal, State levels, but I’m most familiar with Federal and New York), especially through WWII.<p>With a few exceptions (the prohibition is the biggest one that springs to mind), the trend line has generally been progressive.<p>We stopped making meaningful changes around the 1960s, read into that what we may. Regardless, our governmental institutions have proven to be fundamentally unmalleable (brittle?) in the last 60 years, which is a huge break from the norm.<p>The only other period comparable to this was the three generations leading into the American Civil War, which went 60 years without a federal amendment. But that period saw tons of “progress” at the state level, whereas this period has none.<p>I don’t have any conclusions, just food for thought.

Call an Article V Convention per <a href="https:&#x2F;&#x2F;conventionofstates.com&#x2F;" rel="nofollow">https:&#x2F;&#x2F;conventionofstates.com&#x2F;</a> and belie The Famous Article.<p>Americans will line up behind fiscal reform and a rejection of our globalist overlords.

The best thing about the Constitution is that it is very hard to amend. That protects it from the influence of short-sighted radicals who want to implement selfish policies at others&#x27; expense.

The 2nd Amendment does not apply to semi-auto rifles, nor does it apply to bolt action rifles, pistols, or revolvers. The 2nd Amendment RESTRICTS GOVERNMENT. The technology of the firearm is irrelevant. The restrictions on government remain the same, regardless of the firearm. The Second Amendment was not written to grant permission for citizens to own and bear firearms. It forbids government interference in the right to keep and bear arms, period. The right of the people to keep and bear Arms, shall not be infringed.

So it’s functioning as expected and as intended.<p>These people don’t seem to understand that.

A commentator on a Federalist Society conference this evening mentioned this project:<p><a href="https:&#x2F;&#x2F;constitutioncenter.org&#x2F;news-debate&#x2F;special-projects&#x2F;constitution-drafting-project" rel="nofollow">https:&#x2F;&#x2F;constitutioncenter.org&#x2F;news-debate&#x2F;special-projects&#x2F;...</a><p>Interesting to read the varying contentions made by the respective groups on how to change the existing U.S. constitutional structure.

Well, US constitution is still more amendable than EU constitutional treaties, which require unanimous agreement of all states.

Good article, appreciated the charts, though the commentary on them seemed a bit selective. I was disappointed though that the case wasn&#x27;t made for the actual cause of the recent unamendability (since 1971, as they say). Why did opposition to abortion make ALL amendments unpassable?

People in power today are too corrupt to be trusted with amending the constitution. Most amendments have only served big financial interests by stifling free-market competition. Ideally, we should roll-back the entire legal system to how it was in the 1900s.

IIRC, the first constitution placed more power in the hands of the Demos, which would have allowed more modifications. The framers scrapped it and churned out a second constitution with more limited powers for the people, partly to make it harder to amend.

One had high hopes for TFA, only to discover another tired hagiography of wise &quot;Framers&quot; whose perfect work (which mentions, let us recall, both &quot;free Persons&quot; and &quot;other Persons&quot;) has been failed by its stupid unworthy subjects.<p>Bullshit. The constitution was a conspiracy of rich assholes who were tired of state legislatures occasionally favoring the interests of poor farmers, workmen, and merchants over those of rich assholes. They rammed through the constitution, and never again had to worry about legislatures cancelling debts owed to them.<p>Forget amendments. The whole rotten thing should have been thrown out in 1790, and in every year since then. If we have ever made any progress, it has been in spite of the constitution, not because of it.

One of the reasons I like the Australian Constitution is because it pretty much runs on convention. Our top leader is the Prime Minister. The PM is not even mentioned in our constitution.

&gt; It’s lasted more than two hundred years and hasn’t been amended in any meaningful way since 1971, more than half a century ago.<p>1971 again<p>the baader-meinhof phenomenon is following me everywhere i go

The alternative is a Constitutional Convention. Considering that each state would have equal representation, I can&#x27;t imagine anyone on the Left liking that idea.

What are the amendements that they want to pass, but cannot?

<i>looks confusely at 1992&#x27;s 27th amendment</i>

Canada points and laughs.

The US constitution is an antiquated document written by men who enslaved others. It contains no explicit right to privacy or protection from government surveillance. It does not establish a secular state (only the right to worship as one chooses, which is different) and it features an overly broad freedom of speech that facilitates the spread of misinformation and lies. it chooses the president by an indirect mechanism and it nowhere guarantees the right to vote.<p>It needs to be rewritten completely but this is impossible because it is treated as a sacred text.

A two sided story and I think they succeed in unpacking aspects of the two sides.<p>I believe the most likely constitutional change attempts in the short term would be libertarian revisionist windback and amplification of states rights. Reproductive rights would be next but I suspect is less likely to get up because of the impending shift in power balance in government. The revisionist thing, is to me likely because it&#x27;s like the supreme court stacking and vote shenanigans already seen by the GOP. It&#x27;s an easy sell to the state governments and wider republican voter.

TLDR: &quot;All this democracy stuff would work so much better if I could just circumvent all those backwoods idiots who don&#x27;t vote and think similarly to my clearly superior urban, progressive sensibilities&quot;