Is the difficult amendment process outdated?

Lyle Denniston looks at the latest talk about different ways to amend the Constitution, including ideas about changing the article that outlines the amendment process.

"In our country, any proposal to amend the Constitution is idle because it's effectively impossible….The Founders made the amendment process difficult because they wanted to lock in the political deals that made ratification of the Constitution possible. Moreover, they recognized that, for a government to function well, the ground rules should be stable. But they also understood that the people will need to change those ground rules as new challenges and problems surface with the passage of time…. But the Founders blundered. They made passing an amendment too hard…. In setting the bar so high, the Framers didn't foresee that as the country became more populous and diverse, it would become harder for people to reach the near-consensus required for change."

– Eric Posner, a law professor at the University of Chicago, in an online essay on Slate.com on May 5, titled "The U.S. Constitution Is Impossible to Amend: Blame the Founders." This was a commentary on retired Supreme Court Justice John Paul Stevens' new book recommending six new constitutional amendments.

Americans, one could easily say, have never been quite satisfied with their Constitution. In every stage of the nation's history, there have been calls to amend the basic document – in all, more than 11,000 amendments have been put forth. But, after the first 10 amendments (the Bill of Rights) were added – a move considered the price to be paid to make the new government acceptable — only 17 amendments have been added. None has come in the past 22 years.

Is that history proof that Article V, spelling out the method of amendment, is flawed? Does it mean, as Professor Posner comes close to suggesting, that the amendment process is a dead letter, having no more continuing effect than the Third Amendment's ban on encamping soldiers in private homes? Should Congress or the states start a movement to amend Article V?

Under that provision, either Congress or the states can set the process in motion. Congress can recommend an amendment (if it gets two-thirds approval in both houses), and send it to the states for ratification (it would take three-fourths of the states to ratify). The states can pursue an effort to require Congress to call an amending convention, if two-thirds of the states join in such a demand. So far, though, no amendment has ever resulted from a call by the states – although that approach came close in 1911. That year, a plea for a change to provide for direct election of members of the Senate fell just one state short of forcing Congress to act, so Congress took the hint and on its own offered the Seventeenth Amendment, which was ratified in 1913.

It is possible to argue, of course, that the Constitution should not be altered with great frequency so, from that perspective, the amendment process should not be too easy. One of the most eloquent statements of that argument came from Chief Justice John Marshall in the 1819 decision in McCulloch v. Maryland, sparing the Bank of the United States from being destroyed by state taxation.

By its very nature, a nation's constitution, Marshall said, cannot spell out in detail every way in which the government might use its powers. To attempt that, he wrote, "would have been to change, entirely, the character of the instrument, and give it the properties of a legal code."

Imagine, in 2014, what the Constitution would look like – and how clumsy and ill functioning it almost certainly would be — if all or even a significant portion of the 11,000-plus amendments proposed throughout more than two centuries of history had been written into the document.

Still, as Posner points out, the Founders did believe that amendments would be necessary in the future. Both James Madison and Alexander Hamilton said as much in the influential Federalist Papers. Madison said in No. 43: "That useful alterations will be suggested by experience could not but be foreseen." Hamilton added in No. 85: "I never expect to see a perfect work from an imperfect man…. If the constitution proposed should once be ratified by all the [13] states as it stands, alterations in it may at any time be effected by nine states." (At that time, the nation consisted of 13 states, but the Constitution allowed for amendment through the initiative of nine, or two-thirds.)

The Founders thus did not see Article V as a barrier to future amendments; they were confident, as Hamilton put it further, that if the "requisite number" of states "were united in the desire of a particular amendment, that amendment must infallibly take place."

The key to that sentiment, of course, is that the support for a particular change must be "united" among the minimum number of states – nine then, 34 now. That comes very close to suggesting that a very broad consensus would always be necessary to change the Constitution.

In a nation that is now deeply polarized in its politics, and a prominent feature of that situation is mutual distrust across the political divide, a broad consensus on anything about the government may very well be beyond attainment. That, to be sure, is precisely Posner's point. America is too divided in what it prefers politically now, so, as he sees it, there is literally no chance that the minimum amount of support would ever be forthcoming.

But, if that is so, and it at least is arguable, there may be little to no chance that a sufficient consensus could develop behind a specific way to amend Article V. Assuming that each prominent element in the political classes did want it to be easier for that bloc to get the changes it wants, a middle point on how to change Article V would be elusive, indeed.

For the time being, then, it may well be that, until Americans find a way to get along with each other politically, they are going to have to be satisfied with the Constitution as it is today. And if that is as close as American can come these days to constitutional consensus, a document that has lasted this long with so little change may well have something going for it.

It doesn't satisfy the "factions" that the Founders so much feared, but that probably is one of its strengths.

Lyle Denniston is the National Constitution Center's adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.

Philadelphia's National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.