Our Polarizing Constitution

What if we needed a Constitutional Amendment right now? Would Congress be able to get it done? The polarized moment suggests a definitive no. Budget impasse? OK, a couple quick shutdowns and a few hundred billion spent among friends (hey! It’s just taxpayers’ money!), and that’s all taken care of. But what are the chances of getting two-thirds of the House, two-thirds of the Senate, and 38 states to agree on anything—even if it’s really important?

It’s not impossible, of course. It’s happened before—in living memory for many people:

  • In 1951, term limits were imposed on the Presidency. (The ratification period took three years, 11 months.)
  • In 1961, DC got electoral votes. (Ratification took nine months.)
  • In 1964, voting rights were protected despite a person’s failure to pay tax. (1 year, 4 months)
  • In 1967, succession to the Presidency was clarified. (1 year, 7 months)
  • In 1971, 18-year-olds got the vote. (3 months)

Since then… nothing. (Well, the 27th amendment, a bit about Congressional salaries, passed in 1992; its ratification took a mere 203 years.) Maybe the USA has been in a constitutional sweet spot. However, at some point, most citizens will once again want to change something in the search for a more perfect union.

To be clear, amending the Constitution should be a heavy lift. The Constitution is that higher law to which all other laws must conform, so it needs to be well thought out. The Constitution is also the foundation of the country’s political and judicial systems—and so it must never be subject to warping on knee-jerk reactions. The system is set up this way. Getting all of those different constituencies to agree at such a high rate is not easy. That’s why debate can take months or a few years to make a needed change.

Amendments aren’t always magic bullets, of course. They can even be mistakes. The 18th amendment, banning the manufacture and sale of alcohol, was ratified after a year’s discussion. The 21st amendment (“We were just kidding about that Prohibition stuff!”) passed 14 years later after a nine-month debate. Prohibition was deemed a mistake, then, and the system worked to undo it.

Mistakes and historical slowness aside, the system, today, looks frozen.

Even if the country doesn’t need an amendment passed today for some pressing reason, sooner or later, it will. I’d like to think that American leaders would rise to the occasion and get it done; in the current climate, I don’t see how that’s possible.

This month’s budget bill was passed because there were hundreds of billions of dollars in spending attached—something for everyone. Constitutional amendments are about rights and responsibility, and don’t have spending clauses to grease their wheels.

Now, toss in that some amendments that already exist have become left-vs-right political flashpoints. The 2nd Amendment is probably the most famous, but it’s not alone: The Supreme Court saw abortion through the lens of the 14th Amendment, and 1st amendment issues come up all the time, from campaign funding to cake-baking. The 10th Amendment, if one believes that liberals are likely to want a stronger federal power while conservatives want more power reserved to the states and the people, is suddenly political, too. Any future proposed amendment, correctly or not, will risk being seen from a left-vs-right perspective, rather than a national need angle.

Maybe you’ve got things you’d like to see the Constitution address; here’s something that I think requires attention: there ought to be an end to gerrymandering. Clear, unambiguous prohibitions against maliciously drawn electoral maps should come from the Constitution as a way to make each person’s vote count more equally. Ordinary legislation and/or narrow Supreme Court opinions will not suffice.

A majority of Americans have opposed gerrymandering in public opinion polls in recent years. In the current climate of partisan sniping, it appears impossible for legislators to take up a constitutional remedy to gerrymandering—or to anything else, even when majorities of both parties’ supporters are eager for change.

Shawn says he doesn’t have enough social skills to be an accountant, so he’s just a mathematician. His first degree is in comparative constitutional theory and politics.