From time to time, a teacher knows he or she needs to cover
some material that might not be the most scintillating subject. Amending a constitution is one such subject,
but it is fairly important. One approach
is to use a related issue as a takeoff that can lead to the other aspects of
the subject matter. In the case of
amending a constitution, one such issue is how easy the process is to change
the document by ratifying an amendment.
Why is this an issue? Because a
constitutional process that is too prone toward change is one that encourages
people to lose sight of a very important constitutional quality; that is, the
quality that holds the constitution as a fundamental law. Let me explain.
What is a constitution?
In our system, one that follows the federal model, it is an
agreement. For readers of this blog,
this will sound familiar. The agreement
is among the people of a society who have come together, usually through
representation, to write the agreement that will be proposed to the people for
their approval. The agreement is one
that establishes a government. It more
specifically identifies the purposes motivating the proposal, a list of general
principles in the form of a bill of rights, a structural plan for the
government, a list of special powers and/or limitations of powers (this
includes provisions for those who do not live up to the agreement), and the
signatures of the representatives who agree with the document. By signing the document, the representative
is pledging allegiance to the provisions of the document. Usually, the requirement is that all the
representatives sign the agreement. In
order to get that unanimous approval, many negotiations have to take
place. The process then calls for a
ratification of the constitution. This
latter provision calls on the people to directly or through more localized representatives
to vote in approval or disapproval. If a
super majority, say two-thirds or three-fourths, agrees with the constitution,
it goes into effect at a given time.
This vote not only indicates whether the people agree with the document,
but also is a pledge or promise to live by its provisions. For those who vote against the document, they
also are bound by the provisions if they choose to continue being a part of
that society. If the pledge calls on God
as a witness, it is a covenant; if it doesn’t, it is a compact. Our national constitution is a compact.
Now here is the issue.
Since the constitution is the fundamental law of the land, should it be
easy to change? Now the issue does not
apply to our national constitution since it is very difficult to change, but
state constitutions are something else.
The prime example of an amendment process that can be considered as too
easy is that of California. There are
more ins and outs involved, but that state’s process includes a proposal phase
in which a mere eight percent of the electorate sign a petition and the
proposal is placed on an upcoming election ballot. If a simple majority agree, the proposal
becomes part of the constitution. But
that is only the most egregious example.
Other states not only have fairly open processes but also the substance
of proposed amendments in many states falls far afield from the type of topics
I outlined above. For example, many
states have constitutional provisions that govern economic policies, regulation
policies, and cultural policies. For
example, here in Florida we recently voted on two amendment proposals, one that
would allow the sale of marijuana for medical purposes and another providing
funds for public land acquisition. I
know this is a matter of opinion, but to me these are policy questions that
should be handled by regular statutes, not constitutional provisions. I will add, though, that in order to be
ratified, a proposal has to have a sixty percent approval rate in Florida. What seems to be the biggest concern is that
by being able to easily change the constitution or opening it up to more day to
day issues, the constitution loses its lofted sense of importance; it loses the
“sacred” aura that I believe it should inspire.
The constitution is the vehicle by which we commit ourselves to each
other.
On the other hand, can the process be too severe? In the case of our national amendment process,
has it proven to be too burdensome? Some
ask whether, by making it as difficult as it is, we have made it near
impossible to meet the challenges of a changing society. About this, Thomas Jefferson, during the
later years of his life, wrote:
I am certainly not an advocate for
frequent and untried changes in laws and institutions. . . . But I know also,
that laws and institutions must go hand in hand with the progress of the human
mind. As that becomes more developed,
more enlightened, as new discoveries are made, new truths disclosed, and
manners and opinions change with the change of circumstances, institutions must
advance also, and keep pace with the times.
We might as well require a man to wear still the coat which fitted him
when a boy, as civilized society to remain ever under the regime of their
barbarous ancestors.[1]
Yes, times change and even our basic notions about life, in
general, and all of its aspects, including how we govern ourselves, need to
keep up with those changes if we wish to prosper and even survive as a viable
society. Today is no different. For example, our inability to control the
amount of money that influences our politics has made our system less
democratic, less respectful of our commitment to equality. Yet any talk of proposing and having a
constitutional amendment ratified is readily dismissed given how difficult it
is. Another legitimate constitutional
problem that needs addressing is how we draw up congressional districts and the
associated problem of gerrymandering.
Again, this is a problem that can be solved only through changing our
constitution and is therefore seen as being beyond solving.
Once students understand the function of constitutions, the
process by which constitutions are amended, and the issue of how easy or difficult
that process should be, students could be assigned to address the issue
described above; that is, they can come up with a constitutional provision that
would hit upon the right balance between a process that is too easy or too
hard.
So, I know you’re just dying to see what my solution happens
to be. Here it goes: first, adopt a process that is as difficult
as our national constitution calls for, but add the following. Institute a modified constitutional
convention provision in which a convention of representatives – voted on for
this specific purpose – convenes every twenty years. The convention is to propose a new
constitution. The document they propose
can be just a copy of the constitution already in effect or it can have a few
or many changes or it can be a whole new document. After the document is issued, the people get
to voice their acceptance or rejection.
A sixty percent approval rate sounds about right. If the proposed constitution is just an exact
copy of what is in effect, then the vote would be a simple expression of
allegiance as the constitution is already assured to continue. I believe that an active statement of
approval is important; it reminds us of the centrality of a constitution. This process, if adopted at either the national
or state level, I think, would meet that balance between a too difficult or too
easy a process. Also, since highlighting
the process with a convention would bring added attention among the populace,
the process might discourage some of the more “unconstitutional” type of
proposals from being brought up – this could be further enhanced if some
instructional programming on TV or social media accompany the calling of the
constitutional convention. For, after
all, as Jefferson so aptly put it, we need a constitution that fits our current
realities, but maintains the dignity of a true constitution.
[1] As quoted in Hofstadter, R. (1948).
The American political tradition. New York, NY:
Vintage Books. Citation on p. 44. One can interpret Jefferson’s use of the term
“institutions” as including constitutional provisions.
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