The most glaring deficiency of the U.S. Constitution is its failure to follow democratic norms. This has become apparent this century with two Presidents elected despite more votes going to another candidate. We are also still fighting for the right of citizens to vote as the Supreme Court has thwarted laws passed by Congress to prevent states from denying voting rights. Properly fixing these deficiencies requires an amendment. But another democratic deficiency is that the Constitution is “practically unamendable.”
I would like to propose a way out of this dilemma. It is increasingly likely that the Democrats will have full control of the Federal Government as of January 20, 2021. They must use that opportunity to secure democracy through legislation — but also by amending the Constitution. Here’s how: conduct a national referendum by mail asking citizens if they would like to amend the Constitution to guarantee voting rights, directly elect the President, and permit constitutional amendment by national referendum. This last element will legitimize the change: if a majority votes in favor, as I expect they will, Congress will declare the amendment to be part of the Constitution.
Below I provide details of how this amendment could happen and why we should want it — particularly with regard to the method of constitutional amendment.
The Proposed Text
My proposed amendment consists of three ideas expressed in one sentence each, together with the implementation language used in many adopted amendments:
Section 1. Every citizen of the United States, who is of legal voting age, shall have the right to vote in any public election held in the jurisdiction in which the citizen resides.
Section 2. The President of the United States shall be elected by direct popular vote of the adult citizens of the United States.
Section 3. The people of the United States shall have the right to amend this Constitution by means of a national referendum.
Section 4. The Congress shall have the power to implement this article by appropriate legislation.
In short: Guarantee all citizens the right to vote, eliminate the electoral college, make it easier to amend the Constitution, and let Congress fill in the details.
How This Could Happen
Fixing U.S. democracy is on the agenda more than it has ever been since at least the Civil Rights era, and it will be more so if Trump and his Republican Party are repudiated in the 2020 elections. If the Democrats win the presidency and majorities in both houses of Congress, they will have the opportunity to fix the democratic deficiencies that have enabled Republican minority rule. The first steps have already been much discussed: Federal voting rules, fair redistricting requirements, and tougher anti-corruption laws (already adopted by the House as H.R. 1); removing the filibuster, restructuring the Supreme Court, and statehood for Puerto Rico and DC.
But these revolutionary reforms are not enough. We also need to give the people the right to directly elect the president. If the Democratic victory in 2020 includes taking over many more state governments, enough states might adopt the National Popular Vote Interstate Compact (NPVIC) so that it goes into effect by 2024, thereby bypassing some of the worst effects of the electoral college. However, this timeline is unlikely. In that case, my proposal will be the only reasonable path forward in the near term to protect the right of the majority to pick the all-important U.S. President.
Congress would adopt a law to create the referendum, specifying details such as the timing and rules. A simple majority should be required for adoption as is the rule in almost all U.S. states when making constitutional amendments. The law would direct Federal agencies to create a voter list of all citizens using Social Security files (which contain birth date and place of birth) and naturalization records. The election would be conducted by mail, providing several weeks between mailing of ballots and final tallying.
Why We Need this Amendment
The amendment will provide three changes, two substantive and one procedural. I will discuss the substantive ones first.
The Right to Vote
There is no affirmative right to vote in the Federal Constitution. Although a strengthened voting rights act would accomplish many of the changes needed to insure that all citizens can vote, the protections would be stronger if enshrined in basic law and would also apply to non-Federal elections. Recently, the Supreme Court ordered Wisconsin not to count ballots of some eligible voters, saying that a court-created principle trumps voters’ rights. That opinion might have been harder to write, even for outcome-minded justices, with constitutionally-guaranteed voting rights.
Direct Election of the President
Most Americans support direct election of the president. The most recent Pew poll, from January 2020, found 58% in favor. Both Pew and Gallup found about 60% in favor between 2000 and 2012, and a dip in support following Trump’s minority victory in 2016. But the Article V process for amending the Constitution effectively requires a much larger supermajority than 60%.
The National Popular Vote Interstate Compact (NPVIC) is a work-around that has a much better chance of adoption. It would direct states to grant their electoral votes to the candidate winning the most votes nationally. However, it suffers from these problems:
- It only comes into effect when adopted by states accounting for a majority of electoral votes. Four more states enacted enabling legislation in 2019, leaving a shortfall of 74 electoral votes. With Republican officials almost entirely opposed, we will need to wait for more states to came under full Democratic control. Maine, Nevada, and Virginia are states newly controlled by Democrats that have not adopted the NPVIC; together they account for only 24 electoral votes. Democrats will need a major sweep of elections in several more states to achieve the remaining 50 electoral votes.
- The legislation being adopted does not include “uniform rules of voting eligibility, uniform presidential ballots, and an election-dispute procedure.”
- The plan would allow for a plurality winner, since there is no feasible way to have a two-round or ranked voting system.
Change the Way to Amend the U.S. Constitution
The late Supreme Court Justice John Paul Stevens wrote a book proposing six constitutional amendments. President Obama and many others are promoting an amendment to overturn the Citizens United decision. But these and any other amendments are “practically unimaginable,” in the words of law professor and constitutional amendment expert Richard Albert, given the required supermajorities of ⅔ of each house of Congress and ¾ of the state legislatures. In a recent essay, Albert explains:
The best evidence of the difficulty of constitutional amendment in the United States is the historical rate of amendment failure. Literally thousands of amendments have been proposed since 1789, but only 27 have succeeded. Of those, the ten in the Bill of Rights were passed as a condition of adopting the Constitution to begin with; the Thirteenth, and Fourteenth, and Fifteenth were controversially forced upon the states during Reconstruction; and the Twenty-First repealed the Eighteenth. Others, like the Seventeenth and Twenty-Second, had become law by political practice well before they ultimately became law by formal amendment. It may therefore overestimate the number of actual amendments to simply count the ones that appear in the text of the Constitution.
This suggests to me that the U.S. Constitution is best understood as constructively unamendable. Its unamendability is not a legal fact but rather a political reality that we may infer from the current state of American politics. Reading the text of the Constitution alone gives the mistaken impression that everything is freely amendable, but really nothing today is amendable.
An authoritative study of 39 democracies found that the U.S. constitutional amendment process is the most rigid of all those studied.
University of Chicago Law professor Eric Posner writes: “The easiest way to see the problem is to observe that no serious political movements that seek constitutional amendment have existed in years. Amendment proposals today are symbolic; no one takes them seriously.”
Amendment by Supreme Court
Although formal amendment is difficult and rare, informal amendment via the Supreme Court is easy and common. Professor Albert writes: “Although the Constitution has been amended relatively few times, its meaning has changed many times over the years, both in ways that do not appear in the constitutional text and in others that in fact belie it. The source of most of these unwritten changes — what some call informal amendments — has been judicial interpretation. The Supreme Court has become the modern Philadelphia Convention, a continuing constituent assembly that has merged into itself the two historically separated functions of interpreting and amending the Constitution.”
The Supreme Court amendment procedure is a result of the de facto impossibility of amendment by the people. Professor Albert again: “The consequence of the difficulty of Article V has been to reroute political actors pursuing constitutional change from formal to informal amendment. Today, the battleground for constitutional change is what Bruce Ackerman calls a ‘transformative appointment’ to the Supreme Court.” Professor Posner agrees:
“Because Article 5 is a dead letter, people must find different ways to change the Constitution. Mainly, they entreat the Supreme Court to do so. But because the Supreme Court cannot itself amend the Constitution, these entreaties take the form of begging the court to “interpret” the Constitution in a new way. That’s why people hire lawyers to formulate their proposals as already reflected in the Constitution rather than argue that the Constitution got the position wrong and so should be changed.
In recent years, the court has changed the rules on gay marriage, gun rights, and campaign finance. Since the Supreme Court rarely overturns its precedents without public support, indirectly “We the People” can still, in a sense, change the Constitution. But the emphasis is on “indirectly.” If the sitting justices are not ideologically receptive to needed changes in constitutional rules, working change through the court means electing presidents and senators who will nominate and confirm justices with the desired ideological views, and also mobilizing popular opinion against targeted laws so that challenges to them can reach the court.
This is a broken system. Is there a solution? Sure, as Scalia said, all we need to do is change the rules in Article 5. The only problem is that this would require — an amendment.”
Amendment by National Referendum
About 40% of the world’s constitutions use a national referendum for constitutional change, including Australia, Denmark, Ecuador, Ireland, Italy, Japan, Romania, Spain, Sweden, Switzerland, and Turkey, all of which require a simple majority for adoption. Generally the proposal must originate with the legislature (and in some cases a supermajority of their vote is required).
The precedent for a popular vote on constitutional change is even greater among U.S. states, every one of which except Delaware requires amendments proposed by the legislature to be ratified by the voters. In all states but three, a simple majority of voters is sufficient to approve the proposal. The exceptions are Colorado, which since 2016 requires 55%; Florida which since 2006 requires 60%, and New Hampshire, which requires two-thirds. In some states, the majority must be of those participating in the election (so that a blank vote is equivalent to a “no”).
A national referendum is compatible with a federal system. This proposed amendment, and any future one, would need the approval of the U.S. Senate, which represents states on an equitable basis.
Many people, perhaps especially progressives, might be afraid of a Federal Constitution that is easier to change. It would certainly be a novelty to have popular discussions about potential basic changes to our fundamental law, such as four-year terms for U.S. Representatives, that are completely off the table at the moment.
Some would point to the popularity of the Balanced Budget Amendment as evidence that letting the people amend their Constitution can lead to all sorts of trouble. While it may seem foolish to have faith in the wisdom of the majority, the alternative is always worse and certainly anti-democratic.
Some might claim that an empowered majority could trample individual rights. Yet the Supreme Court has largely failed to uphold minority rights (richly documented in recent books by Erwin Chemerinsky and Ian Milhiser) and has in the last 50 years increasingly supported the powerful. It’s not clear that the people would do worse.
Would this be Lawful?
In a word, yes. First, the text of Article V does not indicate that it is the exclusive means of amending the Constitution. Second, the proposed amendment would be self-legitimizing. Third, the most important constitutional changes in American history have not strictly followed preexisting rules.
The Constitution itself was not authorized by the existing Congress or the existing basic law (the Articles of Confederation). The Founders ignored their charge to amend the Articles and the requirement that changes to the Articles be approved by Congress and ratified unanimously by the states.
The 14th Amendment, which has been described as a mini-constitution, was not adopted according to Article V. In order to have a two-thirds majority, the Republicans refused to seat southern representatives — even though the votes of their states had already been counted in ratifying the 13th Amendment. Even after the southern states, under Congressionally-mandated military occupation, held elections including freed slaves and adopted new constitutions, Congress continued to refuse to seat their congressmen until the states ratified the 14th Amendment. Congress proclaimed the amendment ratified on the basis of votes from those states — as well as from two Northern states that had already withdrawn their ratification.
Despite their unlawful origins, the Constitution and its 14th Amendment are without a doubt the law of the land.
We can also cite the legal tradition that gives the people, acting through their representatives, the power to amend any basic law. In his review of state constitutional changes, T. R. White observes: “It is now well settled by the weight of American authority that a provision in a constitution that specific amendments may be proposed by the legislature or by initiative petition is not an exclusive method of amendment but that the legislature may, whether or not authorized by the constitution, provide by law for the calling of a convention to revise the constitution” (emphasis added). In American legal theory, the states created the Federal government; therefore the inherent power of the people to amend constitutions must also extend to the nation.
The European Commission on Democracy through Law recognizes the need for non-conforming constitutional reform: “Sometimes even irregular constitutional reform or revolutionary acts may be considered legitimate and necessary, for example in order to introduce democratic governance in nondemocratic countries or overcome other obstacles to democratic development.”
Professor Albert proposes that a U.S. President, faced with a recalcitrant Congress, could propose a national referendum to change the Constitution. My proposal, although in some ways similar, has two advantages. First, it would be initiated by a law approved by Congress and signed by the President. Second, it would contain its own bootstrapping legitimacy by explicitly authorizing amendment by referendum within its text.
If such a referendum were successful and challenged in Federal court, the Supreme Court’s “political question” doctrine should keep it from interfering. Certainly it would be politically difficult for a Supreme Court to attempt to nullify a referendum approved by the majority of voters.