MAKING AMENDMENTS TO THE CONSTITUTION EASIER
Article 5 Should Be Amended To Re-Energize Our Democratic Process
Law & Liberty sponsored a forum on Constitutional Amendments from esteemed Professors of Constitutional Law in November 2021. The essays range from very pessimistic to guardedly optimistic. They are worth reading in depth.
In my July 2 Post, I proposed one method of how to Amend Article 5 of the Constitution relating to Individual Rights. I go into greater detail below about how to effect that change. Later in this post, I propose 3 other methods for amending the structure and operations of the Government.
Article 8 Amendments for Individual Rights
The first step should be to create Article 8 of the Constitution that is reserved for listing all of the Individual Rights that are separate from the other parts of the Constitution pertaining to the structure and operations of the branches of government. I would move the following Amendments into Article 8: 1st through 9th, 13th, 14th, 15th, 19th, 24th, and 26th. We also create Article 9 for listing all the remaining amendments.
Amendment 28.
Section 1. Article 8 Adopted
Article 8 is adopted to enumerate Individual Rights protected by this Constitution. Amendments number one through nine, thirteen, fourteen, fifteen, nineteen, twenty-four, and twenty-six shall be transferred within this Article.
Section 2. Article 9 Adopted
Article 9 is adopted to enumerate Amendments to this Constitution not eligible for inclusion in Article 8, relating to the structure, taxation, expenditures, and operations of the Federal and State Governments. Amendments number ten, eleven, twelve, sixteen, seventeen, eighteen twenty, twenty-one, twenty-two, twenty-three, twenty-five, twenty-seven, this Amendment, and any other Amendment ratified prior to this Amendment and after Amendment twenty-seven that does not meet the requirements for Article 8 shall be transferred within this Article. Excepting revisions through a Constitutional Convention, no Amendment shall deprive a State of its equal suffrage in the Senate.
Section 3. Repeal of Article 5 and New Language For Article 5
Article 5 is repealed and Sections 4, 5, 6, 7, and 8 of this Amendment will be added to Article 5 to govern Amendments to this Constitution, the rules governing a Constitutional Convention, and the rules governing the State Plebiscites for Ratification.
Section 4. Amendments for Article 8 - Individual Rights
A six-elevenths vote by Congress sends the Proposed Amendment to Article 8 of the Bill of Individual Rights of this Constitution to the Supreme Court for Judicial Review to determine if the Amendment should be subject to requirements of Article 9. If two-thirds agree that it does not, then the Amendment to Article 8 shall be submitted for Ratification by Plebiscite in accordance with Section 8 at the first Federal Election no sooner than the third anniversary of the approval by Congress.
I recommend that the super-majority threshold for passage of an Amendment to Article 8 out of Congress be reduced from 2/3rds to 6/11ths. The Article 8 Amendment is sent directly to the Supreme Court to confirm that it is not an Article 9 Amendment. Then it is presented for Ratification by the voters. Adding individual rights for protection should be easier than changing the structure and operations of the government. Sending proposed amendment to the Supreme Court thwart attempts at using this Article 8 pathway to propose amendments that are not truly Article 8 Amendments that should instead require a 2/3rds vote,
This provision should prevent “ratification arbitrage.” This is what the Supreme Court will consider during its review of the Amendment’s language.
Lowering the passage and ratification thresholds for Article 8 Amendments makes it much easier for the will of the people to be expressed. Using the Amendment process more frequently improves the national consensus surrounding the elevation of an unenumerated right to become an enumerated right in the Constitution. This would also remove the most important rationale for Courts to apply Substantive Due Process in the creation of Judicially-Created Rights (like the Right to Privacy, Gay Marriage, etc.). Lowering the super-majority threshold for adding unenumerated rights to the Constitution relieves the pressure upon the Courts to employ Substantive Due Process to establish Judicially-Created rights.
Section 5. Amendment Initiated by State Legislatures
Within a twelve-month period, the Amendment language proposed for Article 8 or 9 shall be co-sponsored by no fewer than five State Legislatures that have passed identical resolutions containing the identical Amendment language by a four-sevenths majority. These States contain at least one-tenth of the population of the United States according to the most recent Census. No more than twelve months shall elapse between the passage of the Resolution by the first and last State. No State may propose more than one Amendment every twelve months.
Then this Proposed Amendment may be submitted to every other State Legislature and to the Chief Justice who may convey the Proposed Amendment to the State Legislatures with comments.
Section 5 is the route that by-passes Congress. This should be an adquate filter to prevent excessive numbers of amendments from circulating. Sending it to the Chief Justice ensures that there is an official review with commentary submitted to all the States before they vote.
The Proposed Amendment must be passed by a majority vote of the other State Legislatures within four years after it was submitted, and that State counts as an approval of the Proposed Amendment. A subsequent vote by a State Legislature to rescind approval shall only be valid prior to the Amendment’s approval by four-sevenths of State Legislatures. When four-sevenths of State Legislatures approve the Proposed Amendment, then the Proposed Amendment shall be submitted for Ratification by a Plebiscite in accordance with Section 8 at the next Federal Election no sooner than one-hundred eighty days after the approval by four-sevenths of the States.
Based upon anticipation of the ratification process, the 5 States proposing the Amendment will likely have already reached out to a large number of other Legislatures to take their temperature and gauge the likelihood of success, and make changes necessary to secure a 4/7ths approval prior to sending it to the voters for ratification. The voters will have ultimate authority for ratification.
Section 6. Amendments Initiated by Congress
A five-ninths vote in Congress proposes an Amendment to this Constitution. This proposed Amendment shall be submitted to the State Legislatures. If two-fifths of the State Legislatures do not vote to oppose the Proposed Amendment within one year of the date it was submitted, then the Proposed Amendment shall be submitted for a Plebiscite in accordance with Section 5 for inclusion on the next Federal Ballot following no sooner than one year after the approval by Congress.
This version lowers the current supermajority from 2/3rds to 5/9ths. Then instead of requiring 3/4ths of the States (38) to ratify the amendment, this version states that unless two-fifths (20) of the States vote to oppose it, then it will be sent to the Voters who will decide Ratification in a Plebiscite.
Section 7. Constitutional Convention
A proposed Amendment to this Constitution that exceeds one-thousand eight-hundred words shall require convening of a Constitutional Convention. The Supreme Court shall have jurisdiction for ruling on a proposed Amendment’s compliance with this word-length requirement.
This is an arbitrary cut-off that prevents re-writing the Constitution by simply going through the normal Amendment process. Or it forces the proponents to separate the proposal into two or more amendments to pursue the normal route for amendments with separate votes.
A request for convening a Constitutional Convention for creation of a new Constitution shall be submitted to all the State Legislatures and to the Chief Justice in the form of a Resolution passed by a four-sevenths majority vote of five State Legislatures and whose States contain at least one-sixth of the population of the United States according to the most recent Census . This Resolution shall contain the first draft of the new Constitution.
To get the ball rolling on the possibility of a Constitutional Convention, there should be passionate support for the idea among a small group of States that will likely take the lead. Hence, the 4/7th hurdle for five states. For taking this initiative, these States gain some control over the structure of the proceedings of a Constitutional Convention. Requiring them to submit a first draft forces them to give deep and careful consideration to the wording of the Resolution. Likely, that these legislators would have already conferred with colleagues in other Legislatures when composing their first draft. This also rebuts the critics of the runaway convention because the organizers of the Convention would have set expectations of what was under consideration.
The runaway convention critique never made any sense because any crazy work product from a “runaway convention,” would never be ratified by 2/3rds or 3/4ths of the States .
Within sixty days, The Chief Justice may convey comments regarding this Resolution to every State Legislature.
Knowing that the Chief Justice will have the right to write comments means that the leaders of this initiative will likely solicit input from the Chief Justice prior to passing the Resolution. However, the fact that the Chief Justice gets to make comments ensures that there is a learned, respected figure shepherding the process. If the Resolution contains a first draft or outline of the proposed revisions, then the Chief Justice’s comments could be more detailed. If the Resolution addresses matters that the Courts would like guidance on, then it could be a laudatory comment.
The Convention can be convened after the Resolution is passed by two-thirds of the State Legislatures no later than four years after passage of the Resolution by the five States sponsoring the Resolution. A vote to rescind the approval of the Proposed Amendment shall not have effect if passed after two-thirds of States have approved. When two-thirds of State Legislatures approve the Resolution for a Constitutional Convention, then the Convention shall convene at a time and place in accordance with the Resolution.
There are 3 steps. First you need 2/3rds of the States to approve convening the Convention within 4 years. Second you need 4/7ths of the State Delegate electoral votes weighted by population to approve a document to be sent to the voters. Third, you need to secure 7/13ths super-majority of Yes votes in a Plebiscite to Ratify the New Constitution.
The Proceedings of the Constitutional Convention shall terminate no later than six months after the final State approval for the Convention.
A deadline is an important requirement. Also ensures that momentum for change is not dissipated. The 1787 Convention finished in four months, and given that a first draft would have already circulated for this Convention, six months should be more than enough time to make a decision.
The most numerous house of each State Legislature shall send one voting Delegate, and one alternate Delegate, to the Convention. Each Delegate and Alternate shall receive compensation from their State, and they shall not be engaged in any other employment throughout the duration of the Convention. Once appointed by the State Legislature, the Delegate cannot be removed or have a decrease in compensation, unless expelled for misconduct during the proceedings by a three-fifths vote of the Delegates. The State represented by an expelled delegate may replace their delegate.
What is important here is that the Delegate has independence from their Legislature. Like the original Convention in 1787, the Delegates have to act in the interests of the general good, and not the parochial concerns of their State.
The initial Presiding Officer and Secretary shall be chosen according to the terms of the Resolution, and they may not vote on any proposals. The permanent Presiding Officer and Secretary shall be chosen by the vote of the Convention Delegates. The Presiding Officer shall have the sole authority to issue reports and communicate to the public about debates and discussions during the Convention. All requests for documents and information and conversations with persons outside of the Convention must be approved by the Presiding Officer. Delegates and Alternates must consent to monitoring of all methods of communication.
It’s worth going into details about these bureaucratic issues to quell the naysayers that this Convention would be unstructured and a wild and woolly brawl. The Resolution is the document that gets things off the ground. The Presiding Officer will have a lot of authority to manage the secrecy of the proceedings.
All Delegates and Alternates are required to take an oath of secrecy. Any Delegate or Alternate that directly communicates or facilitates the transcription, eavesdropping, or recording of any content of the proceedings prior to the end of the Convention with any person who is not a Delegate or Alternate without the express, written permission of the Presiding Officer, shall be subjected to a vote of expulsion from the Convention and, if convicted by a Court, serve no less than five hundred days in prison. No State may bind the votes or conduct of its Delegate and Alternate by statute or with a fine.
The Constitutional Convention in Philadelphia succeeded because there were no leaks about the debates and tradeoffs being considered. The men in 1787 were more discreet than the Delegates for future Conventions. These sanctions are important for emphasizing the independence of the Delegates who cannot be checking back for advice from the State Legislatures. The horse-trading involved should be out of public view to encourage frank discussions.
The Electoral Votes assigned to a State Delegate during the Proceedings shall be according to the number of Members of the House of Representatives from that State plus one on all questions except votes for expulsion. A Quorum for the Convention is attendance of delegates representing one-half plus one of the Electoral Votes.
The larger States have more votes. A State votes as a single bloc, and the number of votes counted on behalf of that State is the number of House Members from the State plus one. This allays the critics that assert that small States have disproportional power. The Federal Districts and Territories are not represented at the Convention but their residents can vote on the Ratification.
The sponsors of the Resolution for the Constitutional Convention shall have the responsibility and privilege of sponsoring the venue for the Convention, submitting the first draft of a document, an agenda, and Rules for Conduct of the Proceedings, and selection of the permanent President and Secretary as the first discussion items for debate by the Delegates.
This is the reward to the initiators of the Resolution. They likely have the most enthusiasm so they should have priority in setting the agenda and discussion items. Once the Convention is convened, the majority of weighted State Delegate Votes shall decide what occurs.
The Document supported by four-sevenths of all the Electoral Votes of the Constitutional Convention shall be submitted for Ratification by Plebiscite in accordance with Section 8 at the first Federal Election no sooner than one-hundred eighty days after approval by the Convention.
4/7ths of the delegate electoral votes weighted by population are required to approve a New Constitution for submission to the voters. This allays critics who assert that small States have out-sized influence. This corrects for that. Also, this will be a marquee event. No cluttered ballots permitted. Singular national focus.
Section 8. Plebiscite For Ratification
The Final Voting Date for the Plebiscite for Ratification shall be held on the first Tuesday following the First Monday of November in even numbered years during elections for Federal Offices.
For a Plebiscite for a New Constitution, excepting candidates for Federal Office, the ballot may only contain the Question: Shall this Document be approved as the New Constitution of the United States? The choices are Yes or No. A copy of the Document shall be provided free of charge to all Eligible Voters. No other question may appear on the ballot, nor may Candidates or questions for elections for States and their political subdivisions.
For a Plebiscite for an Amendment, excepting candidates for Federal Office, the ballot may only contain the Question: Shall this be approved as an Amendment to Article {8 or 9} of the Constitution of the United States? The choices are Yes or No. A copy of the Amendment shall be provided free of charge to all Eligible Voters. No other question may appear on the ballot, nor may Candidates or questions for elections for States and their political subdivisions.
The Electoral Votes shall be assigned according to the following formula. The choice receiving a plurality of the votes of Eligible Citizens in a district for a Member of the House shall receive one Electoral Vote. The choice receiving a plurality of the votes in the entire State shall receive one Electoral Vote. The choice receiving a plurality of the combined votes of Eligible Citizens in the District of Columbia and the Territories shall receive four Electoral Votes. The New Constitution or Amendment is Ratified if seven-thirteenths of the Electoral Votes are Yes.
Without a uniform, standardized National Voter Registry, you cannot count all the votes across the States to arrive at a majority calculation. That is counting apples and oranges to equal bananas. Therefore I adopted a modified electoral vote system that counts at the House District level to reduce the influence of small States. 489 total Electoral votes currently (435 districts + 50 States + 4 D.C., Territories) so 280 electoral votes are required to reach the 4/7th threshhold. Gerrymandering of Districts will bias this Electoral Count, but not as much as with a winner-take-all Electoral Vote system. One instead of two electoral votes are credited for the Statewide winner to diminish the bias toward small states. Eligible voters in US Territories and the District of Columbia get to participate.
Conclusion
Amending Article 5 of the Constitution is a necessary step to institute serious reforms to our Constitution. Even Justice Scalia agreed that the 3/4ths approval of States for Ratification was too extreme. This essay by John McGinnis and Mike Rappaport make an excellent case that the process of engaging the State Legislatures and the public in the ratification of new amendments was healthy for democracy. The usurpation of the role of effectively amending the Constitution by activist Courts has eroded enthusiasm for using the Amendment process because activists assume that Courts have abandoned Originalist Textual constraints for their rulings so what is the point of ratifying an amendment? Making Ratification dependent upon a Plebiscite of the Voters returns the authority for enumerating the rights retained by the people back to the people, not to Judges.
These changes to how we amend our Constitution will make future amendments far easier and generate greater interest in using the Amendment process to protect rights and make popular structural changes to our Constitution.
David Barulich