Changing The Constitution: Informal Ways To Alter Our Founding Document

Amending the constitution is a challenging and time-consuming process. The United States Constitution, for example, has only been amended 27 times since 1787. The difficulty of this process has led to discussions on alternative methods of changing the constitution without formal amendments. While some constitutions have specific procedures for amendments, others like the Austrian Constitution allow for more flexibility, with any parliamentary legislation becoming constitutional law if it meets the required supermajority. In contrast, the German Weimar Constitution of 1919 had a very broad definition of amendment, allowing laws to deviate from the constitution without becoming part of it, which contributed to Hitler's rise to power. To prevent such occurrences, the postwar 1949 constitution restricted amendments to explicit changes in the text. Other constitutions, like Italy's, include entrenched clauses that protect specific characteristics, such as the democratic form of government or human rights, from amendment. The interpretation of amendment processes also plays a role, as seen in the US Supreme Court's Hawke v. Smith case, which disempowered voters in the federal amendment process. These factors highlight the complexities of amending constitutions and the potential for alternative methods of change outside formal amendment processes.

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Changing the interpretation of the Constitution

The Constitution of the United States is considered "the world's most difficult to amend". The authority to amend the Constitution is derived from Article V of the Constitution, which outlines the procedures for proposing and ratifying amendments. However, the interpretation of Article V by the Supreme Court in the Hawke v. Smith case in 1920 disempowered voters in the federal amendment process, making it even more challenging to amend the Constitution.

One way to change the interpretation of the Constitution without a formal amendment is through judicial interpretation. The Supreme Court plays a crucial role in interpreting the Constitution and its amendments. Over time, the Court's interpretations can evolve, and new rulings can change the understanding and application of constitutional provisions. For example, in the Hawke case, the Supreme Court interpreted the term "legislature" in the Ratification Clause to refer specifically to the state legislature, nullifying a state constitutional provision requiring federal amendments to be submitted to a popular referendum. This interpretation shifted the power of direct decision-making away from voters, demonstrating how the Court's rulings can significantly impact the amendment process and the interpretation of the Constitution.

Additionally, some scholars argue that the people of the United States may amend the Constitution using methods outside of those outlined in Article V. This flexibility suggests that alternative paths to constitutional change exist beyond formal amendments. For instance, Richard Albert has proposed amending how amendments are made, suggesting lowering the bar for constitutional change or altering the order of operations. While these proposals present a paradox, recognizing the role of interpretation in the difficulty of amending the Constitution opens up possibilities for change without formal amendments.

Furthermore, the interpretation of the Constitution can be influenced by political and social contexts. For example, the German Weimar Constitution of 1919 had a very broad conception of "amendment," allowing any law that reached the necessary supermajorities in both chambers of parliament to deviate from the constitution without becoming part of it. However, this interpretation was explicitly ruled out in the postwar 1949 constitution due to its role in facilitating Hitler's rise to power. This example illustrates how historical and political factors can shape the interpretation and amendment processes of a constitution.

The interpretation of the Constitution also extends to the role of state legislatures and the distinction between legislation and ratification. Jonathan Walcoff's definition of legislation as "a sovereign state enactment not subject to any other state's action" highlights the unique nature of ratification, which takes effect only when multiple states take the same action. This interpretation underscores the collaborative nature of constitutional change and the importance of state-level decision-making in the amendment process.

Using methods outside of Article V

While Article V outlines the procedures for amending the Constitution, there are debates on whether it is the exclusive means of doing so. Some scholars argue that there are alternative routes to amending the Constitution outside of Article V.

One argument is that the Constitution could be unwittingly amended during a period of sustained political activity by a mobilized national constituency. Akhil Amar, for instance, posits that Article V does not preclude other methods of constitutional change. Instead, it merely dictates the exclusive procedure for the government to amend the Constitution. Amar asserts that Article V does not restrict the People, independent of the government, from exercising their legal right to alter or abolish the government through proper legal channels. This perspective aligns with the notion that the Constitution is a living document that can evolve through grassroots political activity.

Constitutional law scholar Joel K. Goldstein challenges the exclusivity of Article V by pointing out that numerous widely accepted judicial decisions have introduced new interpretations of constitutional language, deviating from the original intentions or meanings. He highlights how constitutional institutions have evolved independently of judicial activity and alterations made through the Article V process, resulting in forms that differ from what the Founders envisioned.

Additionally, some analysts and citizens believe that the Constitution, being over 230 years old, is out of touch with contemporary America, making it challenging to propose successful amendments. As a result, politicians and courts may attempt to incorporate informal amendments into ordinary legislation or court decisions, despite the Constitution being meant to govern them. To address this, some suggest "flipping the process on its head" by allowing state legislatures to propose amendments while retaining Article V's stringent voting rules. This approach could facilitate the introduction of good ideas, their refinement, and the assessment of their support.

While these perspectives offer alternative avenues for constitutional change outside of Article V, it is important to recognize the ongoing debates and varying interpretations surrounding this topic.

Employing referendums and popular initiatives

Referendums and popular initiatives are mechanisms of direct democracy that empower citizens to propose new laws, amend existing ones, or vote on proposed changes. This process, often referred to as the "Oregon System," gained prominence in the late 19th and early 20th centuries as a response to governmental corruption and to expand voting rights.

In the United States, 26 states have initiative and/or veto referendum processes at the statewide level. All states except Delaware have at least one form of legislatively referred process to amend their constitutions. In all these states except Delaware, at least one form of ballot measure is mandatory for modifying the state constitution. This can involve directly voting on a proposed modification or voting on a ballot measure to call for an election to modify the constitution.

Legislative referral, or "legislative referendum," is a process where the legislature puts proposed legislation up for popular vote. With the exception of Delaware, 49 US states allow legislatively referred state constitutional amendments. Nevada is the only state to allow for statute affirmation, which lets voters collect signatures to place a question on the ballot, asking citizens to affirm a standing state law. If affirmed, the state legislature cannot amend the law without majority approval from citizens in a direct vote.

In some cases, voter-passed initiatives have been repealed or changed by the legislature. To prevent this, initiatives are sometimes used to amend the state constitution, requiring any changes to be approved by voters through a referendum. This can, however, lead to problems with inflexibility, and some states are seeking a middle ground. For example, Colorado's Referendum O would require a two-thirds legislative vote to change statutes passed by voters through initiatives within five years of their passage.

Proposed reforms to the referendum and initiative processes include paying signature gatherers by the hour instead of by signature to reduce fraud, increasing transparency by disclosing major financial backers, and implementing a "cooling-off" period where the legislature can address the initiative's concerns through alternative legislation.

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Amending state constitutions

The process of amending state constitutions varies across the United States, but there are typically two methods to do so. The first method is for the state legislature to propose an amendment, which must then be approved by a majority of voters in a referendum. This is the most common method of amending state constitutions. The second method is for a state constitutional convention to be convened, which is typically composed of delegates elected specifically for this purpose. The convention drafts and proposes amendments, which are then typically subject to voter approval.

In some states, the amendment process may also involve the governor, who may propose amendments or play a role in their approval. Additionally, there may be certain limitations or requirements for amending specific sections of the state constitution, such as requiring a supermajority vote in the legislature or a certain number of votes in the referendum.

It's important to note that the process of amending state constitutions can be complex and may involve multiple steps, including legislative committees, public hearings, and multiple rounds of voting. Each state may have its own unique procedures and requirements, so it's important to refer to the specific state's constitution and laws for detailed information on its amendment process.

While the process of amending state constitutions can vary, there are some common steps that are typically followed. Here's a general overview of the steps that are typically involved:

• Proposal: The amendment process typically begins with a proposal for an amendment. This can be initiated by legislators, a constitutional convention, or in some cases, by citizens through a petition or initiative process.
• Legislative Approval: The proposed amendment is then typically introduced and debated in the state legislature. It must usually pass by a majority vote in both houses of the legislature, although in some states, a supermajority vote may be required.
• Executive Approval: In some states, the governor may also play a role in the amendment process. The amendment may require the approval of the governor, either through signing the proposed amendment or through a veto process.
• Voter Approval: Many states require that proposed amendments be submitted to the voters for approval. This is typically done through a referendum, where voters cast their ballots to accept or reject the amendment. A simple majority is typically required, but some states may have different requirements.
• Certification and Enactment: Once an amendment has been approved by the legislature and, if required, the voters, it is typically certified by a designated official, such as the secretary of state. The amendment then becomes a part of the state constitution and takes effect, often on a specified date.

While these are the general steps in the process of amending state constitutions, it's important to remember that each state may have its own unique procedures and requirements. The specific details of the amendment process can vary, and it's important to refer to the individual state's constitution and laws for comprehensive information.

Changing the amendment process

In the context of the US Constitution, the authority to amend it is derived from Article V, which outlines two methods for proposing and ratifying amendments. The first method involves Congress proposing an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. The second method, which has never been used, involves a constitutional convention called for by two-thirds of the state legislatures.

Some scholars and legal experts have proposed changing the amendment process itself to make it less cumbersome. One suggestion is to lower the threshold for constitutional change or modify the order of operations. However, this presents a paradox: how can the amendment process be changed if amending the constitution is seemingly impossible?

A critical factor contributing to the difficulty of amending the US Constitution is the interpretation of Article V. In the Hawke v. Smith case from 1920, the Supreme Court interpreted Article V in a way that disempowered voters in the federal amendment process. This interpretation highlights that the challenge of amending the constitution goes beyond the text of Article V itself.

While changing the amendment process without a formal amendment may seem like a daunting task, it is not entirely impossible. Recognizing the impact of constitutional interpretation and considering alternative methods, such as those utilized in other countries, can provide potential avenues for exploration. However, any proposed changes to the amendment process must carefully consider the balance between ensuring the longevity and stability of the constitution and the need for adaptability and representation of the people's will.

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