Constitutional Amendment Is Archaic
Posted on June 5, 2017
On matters of real substance, the Constitution for all practical purposes is no longer subject to amendment. (Any amendment can be blocked by 14 states that total as little as 4.4% of the population.) We sometimes have to work around that fact if we want either to have a thorough-going democracy, or respond in a realistic and effective way to the modern world.
The last Amendment that actually affected the balance of power between groups in the US was the 19th, on women’s suffrage, ratified in 1920. The 23rd giving DC the vote in Presidential elections was a tiny ineffectual gesture towards the statehood that is really needed. The 24th on the poll tax probably could have been done by legislation. The 26th giving 18 year olds the vote was a nice gesture that challenged no important power centers. The ERA failed.
The last Amendment that had a substantive effect on everyday life was the 21st, which repealed prohibition (which shouldn’t have been a Constitutional issue in the first place), and it took a recessionary uprising to get it passed (in 1933).
Now granted there is a lot of room for creative legislative theories that get around various obstructions the Constitution raises to effective action. (The National Popular Vote Compact is a potentially important example.) But nonetheless these obstacles remain in place.
So adapting the Constitution to the real world now depends entirely on evolving interpretations by the Supreme Court. During most of our history the SCOTUS was the most conservative of the three branches of government, making this a conservative country indeed. Since 1939 SCOTUS has sometimes taken a more adaptive viewpoint, but it is usually a close thing. Contorted reactionary theories of interpretation such as “originalism” are designed precisely to keep the federal government being either effective or democratic in addressing changed conditions.
In light of all this, how should a progressive respond to interpretations of (for example) the Bill of Rights? On the one hand, we constantly need to protect civil liberties from adaptive interpretations that erode rights. (Search and seizure rights are in the process of disappearing under a number of right-wing SCOTUS decisions.) On the other hand, we need to protect democracy from the expansive interpretations of free speech rights that allow billionaire dark money to increasingly dominate our elections.
The Second Amendment is an important case in point. Based on ordinary scientific policy analysis and humanitarian values, that Amendment ought to go away entirely. However if we try to interpret it out of existence, that might tend to support interpretive procedures that place other rights in jeopardy.
In this as in all cases we have to follow a two step procedure:
1. Analyze the ultimate political purpose of the Constitutional right in light of modern understandings of that purpose;
2. Determine the best way to guide government action to accomplish that purpose.
SCOTUS adds other conditions, for very good reasons. Generally, they proceed incrementally in light of an evolving understanding of the Constitution. (Originalism is an effort to short-circuit that evolution and go back to an imaginary original understanding.)
In the case of the Second Amendment, progressives utterly disagree with libertarian theories as to its original purpose (their notion of “well regulated militia” disappears in a fog of verbiage). But no matter. We need to work towards a settlement that allows the federal government to regulate handguns everywhere and registers all guns but allows personal long guns in the states that want to have them under their understanding of “well regulated.”