Or, The Conservative Case for Decreasing the Two-Thirds and Three-Fourths Requirements for Amendment
In 1914, arch-progressive Herbert Croly founded The New Republic magazine and published his second book, Progressive Democracy. A rich (if at times annoyingly abstract) text, one of its more concrete demands was for the amendment of article V, the part of the Constitution that lays out the processes for amendment. Shockingly, he wanted to replace the two-thirds of Congress and three-fourths of the state legislatures requirement for amendment with a simple majority! Sure, he qualified his general proposal with a need for deliberative time and territorial distribution, but still:
The new machinery of amendment ought to… …make the Constitution alterable at the demand and according to the dictates of a preponderant prevailing public opinion. …the power of revision should be possessed by a majority of the electorate. The only limitations placed on this power should be a method of procedure which allowed sufficient time for deliberation and a certain territorial distribution of the prevailing majority. The form proposed by Senator La Follette is probably the best… It provides for the submission of amendments either by a majority of both houses or by one fourth of the states, and their acceptance by a majority of all the voters voting…
Croly called this the “Gateway Amendment.” The 2/3 and ¾ requirements were holding up a veritable train of progressive amendments, and had long done so:
The traditional system possessed one specific form which, just as a matter of political mechanics, did more than anything else to convert a constitutional democracy into semi-democratic constitutionalism. This form consisted in the amending clause of the Constitution, which made the process of amendment almost insuperably difficult. …at the present time it is unquestionably the most formidable legal obstacle in the path of progressive democratic fulfillment.
Thus, as indicated in my most important “constitutional politics” essay on pomocon, Croly ought to be classified as an Open Opponent of the Constitution. Refreshingly contrary to the shifty stance of FDR and Obama, that of the So-to-Speak Supporter, we find Croly openly criticizing the Constitution as inadequately democratic, and calling for major alterations of it:
In the not very remote future [the Federal Constitution] will have to be modified in certain essential matters—both by amendment and by interpretation.
Croly was cagey about what modifications he wanted, but in one place he indicated that he even had his sights on Article I itself:
The first thing which must be set aside is the method of representation which has passed in this country under the name of representative government.
So while not a revolutionary calling for disobedience of or revolt against the Constitution, Croly was an opponent of it. It would have to be essentially altered. It would not be enough to reform it, or even to “Revitalize It” as Larry Sabato somewhat lamely “called for” five years ago as a way of floating some interesting proposals for amendment.
In 2013, arch-conservative Mark Levin has released a new book, called The Liberty Amendments, and it has shot to the #1 spot on Amazon. I suppose it’s bad form for an academic conservative, but I like Levin. Later on this blog, when I begin unveiling some of the ideas for my five types of American liberty book, I’ll have to attack the way his important Liberty v. Tyranny popularized/hardened the West Coast Straussian contrast of the Founders with the progressives into the Manichean dichotomy expressed by his book’s title, but I want to begin with some praise. I know he has anger issues, and exploits his calmly-methodical-slow-burn anger into a kind of schtick on his show, but beyond the schtick, I even like this about him. I like that his is a serious sort of anger. From sporadic listening, my impression is he doesn’t usually waste time with simple red-meat outrage moments, but rather goes to the big picture on the Constitution, the budget trends, etc. And the big picture is grim. You distill what a guy like William Voegeli shows you, or what you learn from say, NRO’s Bench Memos after reading it for years, and the news about America and especially about the ineffectiveness of conservatism even in victory, is deeply disturbing. Levin isn’t joking around, and the hour is late. These days, we need that tone, that call.
I do not yet know what all of Levin’s proposed Liberty Amendments are—apparently, there is a new crack at Congressional term limits, which I am iffy about, an amendment for Supreme Court decisions to be expunged by 60% of Congress or the States, which I am very iffy about, one providing Supreme Court term limits, which I am cool with, one requiring bureaucracy-ordered rule-changes to be subject to Congressional approval when they affect the economy by a certain amount, which I am also. Another would overturn the 17th amendment, thus returning us to the appointment of Senators by state legislatures. I think I’m for that one too. Hugh Hewitt’s interview gives you a good overview, as does the earlier Human Events essay linked, and over at Ricochet, D.C. McAllister has begun a series of posts that will examine the proposals one-by-one.
Now there’s another Ricochet writer who argues that the whole idea is misguided—his most salient point is that conservatives like Levin place too much faith in federalism, in the state governments. He also makes the classic argument that citizen virtue matters a lot more than the Constitution. But let’s step away from such arguments, and from consideration of any one of Levin’s amendments. Let’s just assume for the moment that he’s right that some of these are really needed.
The basic problem is, none of them could pass!
Levin is speaking in this urgent save-America tone, and unlike someone like Sabato he’s a real political force, but the truth is, he’s giving us a book that will likely only wind up producing speculative activity.
He makes a big deal about the fact that one of the paths to amendment that Article V allows is a proposing convention called for by 2/3 of the state legislatures, and then ratified by either ¾ those legislatures themselves or ¾ of special state-ratifying conventions. It’s never been used, and he’s thinks trying it now will give his amendments a better chance. I do think he’s right that the novelty of this, and the excitement of such a convention, would likely have beneficial civic-education effects. But the forbidding fractions are still there: 2/3 and ¾, with the only substantial difference being that the initial step wouldn’t have to go through Congress.
I assume Levin’s done the head-counting to show that typically, his sort of amendment proposals would have a better chance with 2/3 of the states than with Congress, but how much better of a chance?
And ¾? Well, do the math: 50 divided by 4 is 12.5. 50 minus 12.5 is 37.5. (Does anyone know if we round up or down in these cases?) Even if we round down, meaning that 37 states would be sufficient, all it would take is fourteen states to kill any proposed amendment. So let’s see: NY, RI, MA, DE, CT, VT, MD, WA, OR, IL, WI, CA, HI, and NJ would do the trick. Levin-ites, i.e., conservatives, would have to win in at least one of these, plus the rest, which means they would have to win all the wobbly states like VA, WV, PA, FL, NM, CO, MN, MI, and NV. Good luck.
So, maybe, just maybe, we conservatives have something to learn from Herbert Croly. Here’s my proposal: amend Article V, not down to Croly’s ridiculous mere majority, but down to 55% for Congress and 66% of the State Legislatures (that’s 33 of them).
I’ll quote Croly in support of this. Most everything he says here is in my view correct—indeed, is even more correct than when he wrote it:
The existing method calls for amendment practically by unanimous consent. It removes proposals to revise the Constitution from the realm of partisan political controversy, and it necessitates the retention of means, similar to those which have been used in the past, to give the needed flexibility to the development of the Constitutional system—means which, as we have already seen, placed the political destinies of the American people under the immediate direction of a group of benevolent guardians. A close connection has assuredly existed between the amount of discretionary authority actually exercised by the Supreme Court and the difficulty of amending the Constitution. …the guardianship of the robe was based in practice on the extreme difficulty of amending the Constitution.
Even as a civic-education-oriented professor, who emphasizes Federalist 49’s call for constitutional reverence, I am compelled to say that Croly captured the degraded way in which that reverence often occurs in practice:
The American people confided to the courts the duty of thinking over their political system… Why need a good American ponder about fundamental political problems? …Americans… …have become in this respect intellectually irresponsible.
That irresponsible docility, especially towards the Supreme Court, became increasingly perilous when, from the 1960s on, progressive justices realized they could do just about whatever they wanted so long as they had five votes for it, and the people would still accept it.
If I thought we could, I’d keep the Constitution as is for 500 years, and Madisonian Reverence Forever!!! would be my watchword. But it is now being continually altered by the Supreme Court in illegitimate ways, and by the other branches in duplicitous or hard-to-check ways. So I say to be true to the heart of Federalist 49 requires one to now apparently oppose its teaching. Federalist 78, too. Levin is prepared to subject Supreme Court decisions to popular review, by a mere 60%. He sees that only dramatic and constitution-considering actions, undertaken by the citizenry itself, can grapple with the crisis we are in. And my proposal does about the same thing–since if the public detests a Supreme Court decision they can simply overrule it via amendment–although it avoids going as low as 60% for the final hurdle.
Of course conservatives need to insist on originalism. But we cannot keep waiting around for it, hoping for the next Reagan to be elected and then to appoint the right sorts of justices. Especially when we keep losing national elections, we have to confront our fellow citizens with the de facto constitutional decisions they keep making by voting for the Democrats. Let’s get the constitutional issues made more political, by getting them more often debated as amendments. Perhaps the public really has come to the point where they are ready to largely ditch the Constitution for a mess of progressivist pottage, but if so, let them do it openly and knowingly.
Levin is right that if we’ve lost the public, we’ve lost it all. Two more Obamas, and the Republic falls. So we now enter times where we have to gird ourselves for fighting more openly for the people’s hearts and minds with respect to the Constitution, even at greater apparent risk to it. Levin is merely wrong about what will put it on the table of serious public consideration again. Fantasy amendments in the shadow of 2/3 and ¾ won’t do it.
In conclusion, we should say this: “Americans, we conservatives want easier amendment AND originalism. Part of our unprecedented willingness to go for the former is an implicit bargain with all of you to begin holding Democrats more to the latter. The Constitution is, after all, yours. But if the types of judges and presidents the Democrats keep putting in power keep changing it without the consent required, obedience to it really could collapse. We are quite serious. America really could fail unless YOU take more responsibility for its Constitution.”
So the Responsibility Amendment is what I call it. It is no “gateway” to assumed progress. It is not against Reverence nor for Change. Rather, 55 and 66 percent would serve as a stark and constant reminder of our actual civic duty.