In response to an earlier diary I wrote, I was told to forget about correcting the size and composition of the Supreme Court and to just focus on constitutional amendments. I have also seen other comments to other diaries pushing a focus on constitutional amendments as solutions.
Here’s why that is a pipe dream.
There are two ways that an amendment to the Constitution can be proposed:
- By a 2/3 vote of both the House and Senate; or
- By a majority vote of state delegations (a minimum of 34 being necessary for a quorum) at a national convention called by Congress.
(The second method has never been used, and, considering that such a convention could essentially propose any amendment to the constitution it wanted, is fairly frightening. A majority of 34 states would be 18 states, and there are at least 18 GOP controlled states that could propose horrific amendments.)
So, first of all, we would have to have 67 Senators who would support the Amendment. Not likely. (Of course, with McConnell out of the way and legislation actually getting voted on, some Republican Senators will be forced to make a choice between doing what a majority of their constituents want and facing a primary challenge from the right, or keeping their base intact—a choice that McConnell has protected them from having to make by just not allowing popular legislation to come up for a vote.)
Once an amendment is proposed, it must be approved by either the state legislatures or state ratifying conventions of 38 states. As we know from the ERA, that is very difficult to achieve, even when a majority of the population supports the amendment.
The bottom line of all this is that 13 states can block a constitutional amendment from becoming law.
To borrow a familiar phrase, here are 13 (actually more, if you want to dispute some of them) reasons why constitutional amendments, at least in the foreseeable future, are no-gos:
- Alabama
- Alaska
- Arkansas
- Idaho
- Indiana
- Kansas
- Kentucky
- Mississippi
- Missouri
- Montana
- North Dakota
- Oklahoma
- South Carolina
- South Dakota
- Utah
- West Virginia
- Wyoming
These states combined represent less than 17.5% of the entire population of the United States, and they have the power to stop any constitutional amendment, even if it enjoys the support of a vast majority of Americans.
So, please, don’t tell me that constitutional amendments to do things like abolish the Electoral College are a potential solution. The states listed above have over 21% of votes in the electoral college, which is disproportionate to their population. On the flip side, California, with almost 12% of the entire US population, has just over 10% of the votes in the electoral college. The point being that states that hold disproportionate sway in national politics are unlikely to voluntarily reduce their influence. To quote the Donald, “I don’t understand. What’s in it for them?”
(Maintaining disproportional political clout is one reason that Republicans don’t want to see DC and Puerto Rico admitted as states. DC has a larger population than 2 existing states, and Puerto Rico, if it were a state, would be 30th in total population. Their admission to the union would dilute the power of the listed states. Racism is another reason. The population of both DC and Puerto Rico is majority minority, so why should “those people” get representation? This is just a continuation of the mindset that led to the 3/5 compromise in the original constitution.)
The Founders did not anticipate many things: the extreme disproportion in state population (one electoral vote in Wyoming represents about 200,000 people, while one electoral vote in California, represents over 700,000 people—so much for the concept of one person, one vote); the extreme political polarization, and, with it, the collapse of deliberation in the Senate; the advent of a large number of politicians who are only concerned with staying in office, not doing (or even trying to do) what is best for the country. They did not anticipate that amending the constitution (it’s much easier to get ¾ of 13 states than it is to get ¾ of 50) would become virtually impossible.* And they did not anticipate that impeachment, their remedy for federal officials who abuse their offices and their public trust, would also become virtually impossible due to politicization and “party over country.”
So while, yes, it would be ideal to amend the constitution to fix problems that the founders did not anticipate, let’s be realistic about what can actually be done. We are, after all, members of the reality-based community that believes in actual, not alternative, facts.
*Side note: There is an argument that is making the RWNJ rounds that the 14th Amendment was not legally adopted because the Confederate states (which had not yet been readmitted to the Union) were not counted in determining how many states were necessary for ratification. OMG. Be afraid. Be very afraid.