what is the process to amend the constitution?
1 reason (although not the but one) that judicial review is e'er under attack is considering the Constitution is very difficult to amend. The Supreme Court is often viewed to exist the final word on hot-push button issues such equally abortion. Although at that place are many cases where the Court is unfairly viewed as the final word, where Congress can address an upshot but doesn't, there are certainly instances where the Court is, in practice, virtually the terminal give-and-take. I say "virtually" because the Court is never really the true final word. The Constitution can always be amended. . . . yeah, and my articles really can get accepted past theHarvard Law Review.
Commodity V of the Constitution provides for how it should be amended:
The Congress, whenever 2 thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of 2 thirds of the several States, shall phone call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, every bit Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the ane or the other Mode of Ratification may be proposed by the Congress. . . .
This is quite a chore. It is hard enough to propose an subpoena (go two thirds of both the House and Senate or ii thirds of us). So yous need iii fourths of the states to ratify. To say that this is hard is an understatement. Permit'due south just say that Odysseus would have an easier time getting home than getting an amendment ratified.
The Constitution has only been amended 27 times, ten of which consist of the Bill of Rights, which were proposed and ratified shortly after the ratification of the Constitution. That means that in over 200 years, the Constitution has barely been amended.
As a effect, Bruce Ackerman suggests that nosotros have found ways to meliorate the Constitution exterior of Article V – namely, via Supreme Courtroom interpretation. The very structure of our government and countless extremely important questions residual on interpretations of the Constitution that have petty connection at all to the text. Now, I'1000 certainly far from a textualist, and I don't believe that there's an essential meaning to any particular text. But one must acknowledge that there is some serious misalignment betwixt the text of the Constitution and what the document has been interpreted to mean.
I concur with Ackerman that the Constitution's meaning has shifted in radical ways, and that these interpretive "amendments" can be seen as legitimate (although I'grand not sure that legitimacy should be the metric by which interpretations are judged). Anyway, I don't really want to become into the legitimacy debate in this post.
What I want to suggest is that no thing what theory one uses to justify judicial review, the accuse that nosotros are being ruled by justices acting as Platonic guardians will probably always exist with us. Constitutional theorists have spilled tons of ink attempting to address Alexander Bickel'due south countermajoritarian difficulty, and I accept institute some theories to be quite compelling, but few have really had much resonance with the public.
I think that the best solution is to brand the Constitution easier to amend. If the Court decides something the People don't like, and then they tin amend the Constitution. Because the Constitution is so hard to amend, there'due south a sense of paralysis when the Court problems a decision.Roe v. Wadelaunched a battle over the Court, and the focus has been on appointing justices who would uphold or overturnRoe. But if the Constitution were easier to improve, perchance the boxing would be fought without the Court always in the balance.
The bar shouldn't be set also depression for amendment, as it is important to require consensus-building and a pregnant commitment to meliorate. Perhaps the standard should be 2 thirds of both the House and Senate to ratify. I'm haven't figured out what the precise standard should be, merely I am strongly convinced that it should exist easier than it currently is.
This way, the claim that the Courtroom is the concluding discussion on issues will lose its thunder. The Courtroom volition be less of a boxing indicate. Why should contentious political issues such equally abortion be resolved based on the vagaries of who happens to exist President when appointments demand to exist fabricated? This is what is happening, and as Brian Tamanaha points out in an before post hither at Balkinization, information technology is hopelessly politicizing the appointments process and the legal system as well.
Alteration the Constitution to make it easier to amend might never de-politicize the courts, but it would shift more than of the political boxing away from them, which is a expert thing. I want a Supreme Court that will exist bold from time to fourth dimension, as inChocolate-brown five. Board of Pedagogy, and, aye,Roe v. Wade. The trouble is not with the Court being assuming; indeed, I think that the Court is bold only rarely – as well rarely, I believe. The real problem is that at that place must be a meliorate more than fruitful way for the People to respond other than decrying the Court and hoping one mean solar day for new appointments.
Of course, my proposal requires alteration the Constitution. Alas, the brutal circumvolve.
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This post was authored past Professor Daniel J. Solove, who through TeachPrivacy develops figurer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more 1 million followers.
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