When it was ratified in 1789, the U.S. Constitution didn’t just institute a government by the people. It provided a way for the people to alter the constitution itself. And yet, of the nearly 11,000 amendments proposed in the centuries since, only 27 have succeeded as of 2016. So what is it that makes the Constitution so hard to change? In short, its creators. The founders of the United States were trying to create a unified country from thirteen different colonies, which needed assurance that their agreements couldn’t be easily undone.
So here’s what they decided. For an amendment to even be proposed, it must receive a two-thirds vote of approval in both houses of Congress, or a request from two-thirds of state legislatures to call a national convention, and that’s just the first step. To actually change the Constitution, the amendment must be ratified by three-quarters of all states. To do this, each state can either have its legislature vote on the amendment, or it can hold a separate ratification convention with delegates elected by voters.
The result of such high thresholds is that, today, the American Constitution is quite static. Most other democracies pass amendments every couple of years. The U.S., on the other hand, hasn’t passed one since 1992. At this point, you may wonder how any amendments managed to pass at all. The first ten, known as the Bill of Rights, includes some of America’s most well-known freedoms, such as the freedom of speech, and the right to a fair trial. These were passed all at once to resolve some conflicts from the original Constitutional Convention.
Years later, the Thirteenth Amendment, which abolished slavery, as well as the Fourteenth and Fifteenth Amendments, only passed after a bloody civil war. Ratifying amendments has also become harder as the country has grown larger and more diverse. The first ever proposed amendment, a formula to assign congressional representatives, was on the verge of ratification in the 1790s. However, as more and more states joined the union, the number needed to reach the three-quarter mark increased as well, leaving it unratified to this day.
Today, there are many suggested amendments, including outlawing the burning of the flag, limiting congressional terms, or even repealing the Second Amendment. While many enjoy strong support, their likelihood of passing is slim. Americans today are the most politically polarized since the Civil War, making it nearly impossible to reach a broad consensus. In fact, the late Supreme Court Justice Antonin Scalia once calculated that due to America’s representative system of government, it could take as little as 2% of the total population to block an amendment. Of course, the simplest solution would be to make the Constitution easier to amend by lowering the thresholds required for proposal and ratification. T
hat, however, would require its own amendment. Instead, historical progress has mainly come from the U.S. Supreme Court, which has expanded its interpretation of existing constitutional laws to keep up with the times. Considering that Supreme Court justices are unelected and serve for life once appointed, this is far from the most democratic option. Interestingly, the founders themselves may have foreseen this problem early on.
In a letter to James Madison, Thomas Jefferson wrote that laws should expire every 19 years rather than having to be changed or repealed since every political process is full of obstacles that distort the will of the people. Although he believed that the basic principles of the Constitution would endure, he stressed that the Earth belongs to the living, and not to the dead.