Draft amendment to rethink the Article V process. Not yet rated or edited by the WeAmend community.
Draft AA-22-01
Amending the US Constitution
Section 1. The constitution’s legitimacy derives from the will of the people, and may be amended from time to time to expand and strengthen our democratic values. Amendments may be proposed by Congress or the States the manner below. Once proposed, the amendment will be placed for ratification on the ballot in the first mid-term election occurring two years after proposing. All citizens, regardless of residence, must be able to participate in the plebiscite. The amendment is ratified on a 2/3rds majority of those voting in the plebiscite.
Section 2. Congress may propose an amendment for ratification by the people providing the same draft proposal is passed by a 2/3rds vote of both houses in the same session of Congress.
Section 3. States may propose an amendment for ratification upon an affirmative vote of the 2/3rds of the states. The wording of the draft proposal must be identical in every state. The draft proposal may include a time limit for reaching the 2/3’s proposal approval threshold and any terms for recession while the draft proposal is under consideration. Each state may decide whether legislators or state citizens meeting in convention or in a plebiscite are designated to vote on the draft. A simple majority vote is sufficient for each state’s approval.
Section 4. A standing panel of fifty federal judges, chosen by lottery every two years, with subpoena and other appropriate powers, are responsible to expeditiously validate any disputes in the amendment process and confirm ratification. Their deliberations and internal operational rules must be substantially open to public review. Those who interfere with the panel’s operations or subvert their constitutional duty for neutral fair action, may be charged with treason.
The US Constitution, despite being the oldest and first significant written template for democracy, is also widely regarded as one of the most difficult constitutions in the world to amend1. This may be viewed a “feature or a bug”.
One school of thought defends the high barrier as prudent protection against regrettable change rushed through in the heat of the moment. Instead, they look to the courts and Congress to reinterpret the sparse parchment’s words as a new consensus emerges organically over geological time.
Conversely, the agonizingly slow Article V process is viewed as impediment to necessary change and adaptation. As Jefferson famously noted, “We might as well require a man to wear the coat which fitted him when a boy as civilized society to remain forever under the regimen of their barbarous ancestors”. Even the conservative, originalist Justice Scalia argued (in 2014) for a revised faster amendment process. Strange bedfellows, indeed.
Millions of words have been spilled in law journals (and even more in rampant punditry) over the efficacy of Article V. Additional debate will not settle this issue- let’s put it to a vote of the People.
(This amendment replaces Article V, and thus is longer and more process-oriented than usual)
Over 11,000 amendments have been proposed in Congress, and numerous others advocated in state petitions. Most were political stunts. To avoid diminishing the sanctity of the amendment process, we require a supermajority to advance any proposal to the ratification stage.
In this draft amendment we propose lowering the ratification threshold from 3/4s of the states to 2/3rds. The 3/4s threshold has the potential to result in highly objectionable outcomes- the oft-reported theoretical observation that 17 states with only 4% of the population can block an amendment, while 38 states representing 40% of the population can ratify.
As the historian David Kyvig points out2, in fact there was a reasonable balance between geographic distributions of states and popular ratification. But the high hurdle has undoubtably has discouraged amendments from reaching the people, even ones with widespread support.
Taking inspiration from state and international constitutions who benefited from the experience of our nascent democratic experiment, two ratification hurdles are proposed. The first echoes our federalist structure, requiring a supermajority of states to agree. A 2/3rds threshold prevents a single political party, which controls half the state legislatures, from modifying the Constitution to further their own dominance. Yet it is not so high as to allow a small cadre of states to block the clear will of the country.
The second hurdle is a democratic check on the first. It would be a travesty of democratic representation if a minority of the voters could pass a law that applies to the entire body politic. To avoid regulation without representation, all American citizen’s must participate in the ratification plebiscite. This includes the fifty states, the district of Columbia, Puerto Rico, and perhaps other territories. We set the threshold at 2/3rds of the voters to raise the barrier high enough to discourage the madness of the crowd, but low enough to be surmounted.
We note 2/3rds of the smallest states constitute 28% of the population, but 16 of the largest states 66% of the population. Thus both large and small states must agree to amend in order to surpass both hurdles.
Finally, we added a new feature to the amendment process- an explicit oversight function to assure the amendment is carried out in a fair and apolitical manner.
Buy directly involving the public in the amendment’s crafting and ratification, they will take ownership of the Constitution’s future and apply their ingenuity and energy to its survival.
In more detail:
Section 1: The Amendment contains numerous checks and balances, combined with streamlining the ratification vote. Either states or Congress may originate an amendment “proposal” upon a 2/3rds supermajority. This preserves the federated aspect of our democracy, while limiting the ability of narrow constituencies to block progress. It also moderates, somewhat, the pressure on the 34th state to agree to the proposal, and possibly others to rescind- they can simply let the people decide in the plebiscite.
The plebiscite takes place in a mid-term election, to prevent amendments from becoming a litmus test for the presidency3.
As the Constitution derives its legitimacy from the people, the people ultimately vote to ratify. Thus any citizen, subject to the oversight of the Constitution, must be able to express their agreement. The majority of population inhabits our fifty states4, but this broadly democratic process would include the District of Columbia, Puerto Rico and some territories.
Section 2: Congress, the traditional home of amendments, likely will continue to send the majority of proposals to the states. They may elect to place a time limit on the proposal’s approval, and whether states can rescind their vote during mid-proposal. But they can no longer choose the form of the proposal’s ratification route (legislative or convention), that is left up to the states. This enables public pressure to determine the most acceptable path as confidence in this process evolves, and standard practices emerge.
Section 3: States may originate a proposal. The process is intentionally ad hoc, with draft proposals emerging out of non-binding citizen conventions, or promoted by special interest groups, pundits and celebrities. This approach is no different than the mode in which model state legislation currently arises, or how states, following the Article V process, can petition Congress to act.
There is no direct citizen national convention or petition process. Partly, this choice reflects fears over a “runaway” convention. Partly, in deference to our lack of experience with ad hoc conventions over the entire history of governing (except at our founding), and partly reflecting the immense problematic organizational issues to hold a fair and representative convention. However, citizens can meet in non-binding conventions, promulgate a draft proposal, and lobby states or Congress to proceed.
Section 4: Article V provides little in the way of process guidance- abandoning vote counting to a biased political process or haphazardly delegating to uncertain judicial review. We have observed how easily elections can be subverted or distorted, or the political process (say Tilden v Hayes in the Electoral College, or the messy ERA odyssey including the outsize role of the unelected Archivist) hijacked by political horse-trading. Subverting the will of the people.
What is the alternative? In principle a citizen jury of five hundred, modeled on the Athenian dikasteria, could provide unbiased guidance and closure. But the difficulties of selecting a representative cross-section of the public, avoiding juror threats and pressure, and the complexity of the system makes a “people’s jury” an aspirational dead-end. Instead, we rely on Federal judges, while are not representative of the general public, are roughly evenly divided among the parties and judicial philosophies. Their only responsibility is to make a legal judgement as to the process’s validity. A similar task to their “day job”.
Section 4 incorporates certain legal powers and penalties to assure the oversight clause has teeth….
- As prominent Princeton constitutional scholar Professor Woodrow Wilson stated “no impulse short of the impulse of self-preservation; no force less than the force of revolution, can nowadays be expected to move the cumbrous machinery of Article V.”
- “Despite concerns that a tiny fraction of the citizenry located in small states could block an amendment or that the majority of Americans clustered in a few large states could have their interests overridden, in reality, the amending process carried out the Founders’ intentions. The distribution of the population in ratifying and nonratifying states was, in the aggregate, close to the proportion the Founders deemed satisfactory to establish or deny a supermajority consensus. In other words, although the least populated states could, in theory, block reform desired by the more populous—allowing less than 5 percent of the population to block constitutional change favored by an overwhelming majority of Americans—it has never happened. Nor have smaller states collectively imposed amendment on the minority of states containing the bulk of the citizenry.”
— Explicit and Authentic Acts: Amending the U.S. Constitution 1776-2015
- It may also increase voter turnout in the sometimes lackaidasical mid-terms.
- We recognize an inconsistency in this approach- territories can vote but not propose. However, if we expand the number of “states” by a half dozen (including DC and Puerto Rico) this controversial endorsement may torpedo our new amendment