Plus, for reasons that are above my pay grade to understand, the Constitutional amendment process seems to be broken – or, at least, not really used any longer.
In the last 50 years, there has only been one Amendment instituted: the 27th.
He goes on to point out that the 27th amendment took 202 years to be ratified.
I agree with his point; the bar for ratifying an amendment is prohibitively high. I don’t see a pathway to get 38 states to agree on anything with our current mix of big and little; conservative and liberal states.
Can you think of any potential amendments to the US Constitution that could realistically be ratified in the next 25 years? 50 years?
I have a couple of suggestions, but I’ll let others weigh-in first.
Let’s limit the discussion to ratifying amendments and ignore the proposal process since that is an easier process.
As a refresher:
A proposed amendment becomes an operative part of the Constitution as soon as it is ratified by three-fourths of the States (currently 38 of the 50 states).
I don’t think there will ever be another amendment ratified. We are too polarized, and I don’t see any issue that could get 3/4 of states to agree on any issue of significance.
Unless and until the present political balance and culture change radically, I don’t see it possible to ratify anything. And of course if they do change that much, the details of the change would determine what is and isn’t possible.
As I said in the OP, I don’t think it’s possible to ratify an amendment at this point, but if I was challenged to come up with the best contenders, then I suggest the following. Please feel free to propose what you think might be the most likely – even if likely means nearly 0%.
One potential amendment I could see, especially as the states polarize, is an amendment that furthers the power of the states. This could appeal to both ideologies and both large and small population states.
For example to further empower the states to enter into compacts without Congressional approval. I could see states with similar ideologies wanting to band together to check the Federal government. Both sides might identity this as “better for them”.
Another example is physician-assisted-suicide. This is a non-starter in 2025, but I think this will only continue to gain acceptance as the populace lives longer and suffers longer.
Agree your first proposal is plausible. An increase in “states rights” could turn it from a rallying cry of the far Right into something useful for progress, not just oppression. Which might get us to 38 “yes” votes despite each side having very different goals in mind for how they’d use their newfound power.
Hard disagree w your second. For two reasons. First is that it lacks the dichotomy of different states with polar opposite goals being able to use the same amendment to opposing ends. But more importantly, the growing polarization of US states is largely along religious lines. Suicide is a vehemently religious issue among the Xians. They will never approve of it, nor of abortion, no matter how much suffering their primitive ideas visit upon their own friends and family. Because Jeebus.
One possibility would be term limits for the US Congress. Both Democrats and Republicans, during various situations, seem to think that long serving members of Congress are a problem. There seems to be just as many Democrats that complain about the likes of Mitch McConnell as there are Republicans complaining about the likes of Chuck Schumer. In addition, term limits would create more opportunities for ambitious candidates on both sides to run in an open election rather than having to challenge an entrenched incumbent. Most of all, if it’s limited to federal elections, state elected office holders don’t have to worry about limiting themselves if they are one of those long standing office holders.
ETA: I could imagine such an amendment getting support from both sides here in Texas, including from our state AG Ken Paxton. That’s then only issue I can imagine on which he would make common cause with Democrats, but it’s something.
An issue with any of these “both sides benefit” amendments is short-term thinking.
Yes, term limits would run the senior opposition oldies out of the plum committee spots. But it would also run our oldies out. So any party strategist will immediately look at the current score and decide if term limits would be to their immediate advantage or disadvantage. And vote accordingly.
You would hope longer range thinking would apply. And given the highly uncertain timing of when any amendment gets ratified (200 years much?), there is no way to predict which party will get the short term boost when that 38th state finally pulls their trigger. So long term thinking is the only kind that’s actually “thinking”. But fat chance anybody that smart is anywhere near the levers of power.
For the most part, those senior opposition oldies will be replaced by young junior opposition oldies. Except in the most purple of purple states or House districts with a long term incumbent of the opposite party (Susan Collins in Maine or the recently defeated Sherrod Brown in Ohio), a seat flipping parties due to term limits is unlikely. More likely is the scenario where someone like Ken Paxton doesn’t have to worry about all the complications of running against someone like John Cornyn in a primary.
Admittedly it’s still a long shot, but not as long a shot as other things that would be seen as partisan for one side or the other.
On the one hand, I’m nervous about the current bunch of legislators even being given the opportunity of deciding on amendments. On the other hand, they’re currently holding on so tightly to their phoney-baloney jobs that they don’t even dare exercise their existing constitutional powers, much less modify them.
Consider that amendment ratification is by states’ legislatures, not by the states’ citizenry. Also that in general gerrymandering has produced legislatures that are redder than their constituencies. You’re right that 32 states’ citizens voted for RW Fascism at the last election. But if the presidential vote were put to the states’ legislatures instead, it would have been more than 32.
That suggests that we are very close to the tipping point where the red states can pass constitutional amendments over the objections of the blue states voting en bloc against.
At which point the OP’s question takes on a very different and more ominous tone.
This is a great point (although I don’t think were above 31 yet). I should have included these stats in the OP. From my quick research, most states require a simple majority of legislators (50% + 1) to ratify. A small handful require 60% or 66.6%.
I generally agree, especially today. However I could see people’s views shift in a few decades if most people live to their 90’s and die with dementia or cancer. A couple of generations of dying parents might soften views. Even then I admit an amendment is an unlikely solution – more likely people would just look the other way.
I was trying to brainstorm a ‘social issue’ that might be more acceptable to conservatives and liberals alike (albeit non-religious).
My brainstorm categories were:
state’s rights (e.g. state compacts)
social (e.g. right-to-die)
economic (e.g. debt ceiling, income tax – both seem non-starters)
administrative (e.g. 27th, term limits, codifying something that has been followed by custom only)
People love to bitch about it, but how else was that problem going to be solved? It’s still absolutely relevant today for the same reasons it was in 1787. Places like Wyoming and Alaska look at other states and notice that say… Houston alone has almost twice the population of both states combined, and really like the whole state equality in the Senate and for Constitutional amendments as a result. Their states’ population is basically a rounding error at the national level (e.g. Alaska’s population is 0.21% of the national population), but due to historical happenstance, they’re fully fledged states.
Beyond that, any sort of remedy is going to be a fundamental restructuring of the country’s governmental structure, and that’s not going to happen, not when it works directly against the interests and influence of smaller states. And the vast majority of states are smaller states- something like 26 have populations under 2.5 million.
In a very real sense in terms of our governmental structure, it’s not the NY, TX, CA, FL, PA states that are “normal”, they’re the outliers due to their outsized populations.
Which suggests a remedy. Cut e.g. California into 16 states with a population of ~2.5 million each, so roughly the median population. Then give each new-CA state 2 senators and at least one rep.
However, you have to consider the other high bar: at least 290 Congresscritters and 67 Senators have to agree to the amendment before it can even get to the states. 32 states may have tipped for the Felon, but within those states, there were congressional districts that went the other way.
It’s an elegant solution with simple math that worked in 1790 with 16 states, but it wasn’t future-proof. In 1790, Virginia was ~20x the population of Delaware. In 2020, California was ~70x Wyoming.
In 2020, the most populated 9 states have 51% of the population while the least populated 9 have 2%.
Today, 35% of the population could theoretically ratify an amendment by representing 3/4 of the states.State boundaries are both meaningful and arbitrary which leads to these awkward situations.
As far as solutions, amendment ratification could include both number of states and population like the Electoral College does (404 is 3/4). This might be slightly easier than 38 states without being too easy.
A broader solution to the compromise could be to scale senators by state population, but at a much steeper rate; even a nonlinear rate. The rate could be set dynamically by the gap in state populations.
Of course the Senate is all about each state being considered a (nearly) sovereign nation only loosely allied with the other states under the leaky small umbrella org of the Feds.
While the functional reality for the last 50 to 150 years is that we are a single unified country with some administrative subdivisions called “states”.
That tension really needs to be resolved so the documents match the reality. Same as the ongoing discussion about whether abortion is rightly a state vs federal issue.
We are now entering a phase where something’s gotta give. Either we revert to strongly separate states 1790s style, or we remake a unified country 2020 style. Or we collapse into a pile of warring fiefs then several different countries arise from the ashes after 20+ years of violence and chaos that would make Lebanese folks feel right at home.
It is troubling that the Senate is the body that approves appointments. It is a much more anti-democratic scheme than in the early days of the country.