By Jeff Clements
For publication Spring 2023
New York University Journal of Legislation & Public Policy
Symposium: Constitutional Amendments: Time to Rethink
Brennan Center for Justice, February 16, 2023
We think too little of Constitutional amendments. After all, one cannot describe the Constitution without thinking about amendments. The Constitution largely derives from four brief amendment eras that have recurred roughly every 50 years. The Constitution that opens with “We the People” comes from the people. Literally, not symbolically, it comes from the people who demand, debate, and push amendments through the arduous Article V process of a ⅔ vote in Congress and ratification in ¾ of the states so as to improve and adapt the Constitution to their needs.
Fifty years after the last amendment era ended, as John F. Kowal and Wilfred U. Codrington III have suggested, a new amendment era is upon us. Americans approach the 250th anniversary of Independence in 2026 with widespread anxiety. Multiple factors are destabilizing American society, and large majorities of Americans believe that democracy is in crisis and at risk of failing. Confidence in leaders and institutions is at an all-time low; three out four Americans lack confidence in the Supreme Court itself.
But when Americans turn to Google with curiosity, questions, and an eagerness to explore Constitutional possibilities, they will find something that could not have happened in previous eras: a list of articles from very smart people telling them not to bother, the Constitution is “unamendable.”
Jill Lepore believes the Constitution became unamendable in the 1970s with ERA’s ratification failure. Richard Albert agrees that the Constitution is unamendable, even “frozen.” Sandy Levinson seeks radical Constitutional change – but calls the normal amendment process a “near impossibility.” Jesse Wegman discounts amendments “for anyone alive today,” and Julie Suk says amendment is “functionally impossible.”
With deep respect for these scholars, I question the “unamendable” conclusion that they and other thoughtful commentators reach. Neither presentation of the unamendable thesis nor the evidence offered to support it seem convincing.
On presentation, amendment skeptics offer a three-step dance. Step One: declare the Constitution unamendable. Step Two: lament that conclusion and show the desperate need for amendment. Step Three: offer one or more preferred amendments, entirely new Constitutions, or new methods of amendment.
While steps two and three exercise our Constitutional imagination, why package that with the dispiriting dismissal of the possibility of amendment? Prefacing a discussion of Constitutional change with the conclusion that the Constitution is unamendable preempts a charge of naivety, but is the Constitution less amendable than in previous eras when Americans ratified multiple amendments?
Those who work on amendments, as I do, know that amending the Constitution is both rare and exceedingly difficult. And the amendment skeptics know that the Article V amendment process remains as before. If the argument about Constitutional amendability does not turn on anything in the Constitution that has changed, the skeptics must believe that something in us has changed.
Maybe this is true, but who knows? And who can know? Those who are trying to pass and ratify amendments may have additional evidence about the chances of success. But even the most ardent believers in the likelihood of amendment cannot know if, how, or when their efforts will succeed or come to an end. At most, serious amendment efforts offer partial evidence and tentative conclusions. Right up to the moment of success, they cannot prove that an amendment is either “inevitable” or “impossible.” If they fall short, the only conclusion one can draw is “not yet,” or “not that particular amendment.” It is sidetracking to argue the unprovable thesis that the Constitution is unamendable, particularly when the skeptics agree that we are in dire need of amendment.
Apart from the dubious unamendable overture in the three-step, I am surprised by the lack of engagement among skeptics with the substantial evidence from the field developed by those who are working on amendments. This evidence cannot conclusively answer the question, but surely it is relevant to the inquiry about the possibility of amendment.
At American Promise, we don’t think the Constitution is unamendable. In fact, millions of Americans participating in our For Our Freedom Amendment campaign are in the process of amending it right now. These are not naïve dreamers or political manipulators.
They are citizens in every state, from every part of the political and demographic spectrum. Our staff, board, advisory council and volunteers are Republican, Democratic and independent voters. They are Navy Admirals, Army Colonels, and combat veterans; experienced politicians who have served in Congress, as Governor, and as State legislators. They are faith, civic, and business leaders – and rising members of a generation tired of our broken system. And yes, they are law professors, judges (including retired United States and state Supreme Court Justices) and experienced lawyers.
We disagree about a lot of things—whom we vote for, what the Second Amendment means, whether the Electoral College is a problem, how to deal with the climate crisis, national debt, risk of global war, various Supreme Court decisions, and much else.
But we agree about one really big thing. We will pass and ratify the following amendment, or something close to it:
Section 1. We the People have compelling sovereign interests in representative self-government, federalism, the integrity of the electoral process, and the political equality of natural persons.
Section 2. Nothing in this Constitution shall be construed to forbid Congress or the States, within their respective jurisdictions, from reasonably regulating and limiting contributions and spending in campaigns, elections, or ballot measures.
Section 3. Congress and the States shall have the power to implement and enforce this article by appropriate legislation and may distinguish between natural persons and artificial entities, including by prohibiting artificial entities from raising and spending money in campaigns, elections, or ballot measures.
This is not a hypothetical; it is an idea advancing through the Article V process, and by now, is quite far along in that process. Twenty-two states have enacted formal resolutions calling on Congress to pass this amendment. Six of these states have done so by ballot initiative. When offered a chance to vote for this, Americans do so with extraordinary majorities. Recently, a CBS poll showed 70% of Americans concerned that democracy was failing, and 86% of those identified the influence of money in politics, exactly the problem that this amendment addresses, as the number one reason for that. “Reducing money in politics” now ranks at the top of Americans’ priorities, higher than immigration, crime, climate, the deficit, and more.
By now, nearly 1000 cities, towns and counties have done what Americans have done since the Revolution: gathered in their communities to debate and pass resolutions calling for Constitutional action. The most recent resolution passed in February 2023 in Brown County, Wisconsin. Brown County voters favored Mitt Romney over Barack Obama in 2012; Donald Trump over Hilary Clinton in 2016; and Donald Trump over Joe Biden in 2020. The American Promise resolution passed in the Brown County legislature with 92% support.
The American Academy of Arts & Sciences’ nonpartisan Commission on the Practice of Democratic Citizenship has examined what has gone wrong and what can be made right with American democracy and civic life. The Commission’s final report, Our Common Purpose: Reinventing American Democracy for the 21st Century, made several key recommendations , including passage and ratification of American Promise’s Constitutional amendment.
Variations of this proposed amendment have been introduced in Congress since 1987, and now more than 200 House members and 50 Senators support it. Yes, these are mostly Democrats, but American Promise plans to close the gap to reach the necessary 290 votes in the House and 67 in the Senate. Energized support is growing on the right and in our conversations with Members of Congress and Republicans in many quarters. We expect introduction of a version of this amendment by several Republicans during this Congress.
Does this evidence of progress prove that the Constitution remains amendable? Not at all. But this evidence of a practical, sustained strategy towards the necessary votes in Congress and the States belies assumptions behind the unamendable thesis, and ought to be addressed before concluding that the Constitution is unamendable.
The habit of proclaiming that the Constitution is unamendable is not harmless. Indeed, it may be at least a family relation of other bad habits that undermine civic courage. We rightly discourage the claim that “voting is useless, hopeless or rigged.” We resist saying that “prosecutions and litigation can’t lead to justice, so no one should bother serving on juries.” We think twice before proclaiming that “signing a petition or contacting your legislator won’t make any difference.” We might exercise the same care when considering the prospects for Constitutional amendment.
Harvard law professor Vicki Jackson argues that “unwillingness to use Constitutional processes for amendment raises questions of Constitutional legitimacy.” Those who make “claims of impossibility,” she says, “fail to take into account the self-reinforcing character of such claims….” Moreover, Professor Jackson shows that “claims of impossibility, based on the difficulty of the formal procedures, are overstated.”
So, I propose a friendly amendment to the three-step dance of Constitutional change. Let’s keep Step Two; it is a danger if we don’t amend the Constitution. Let’s keep Step Three; we should explore and debate all ideas for Constitutional change. But let’s be done with Step One. Let’s stop giving ourselves a pass on proving impossibility– or not– in the field, where we either get it done or we do not. And let’s be humble about the fact that while our favorite amendment might fail to advance, that doesn’t mean others won’t succeed.
Some of the Constitutional changes that the National Constitution Center project recently explored, including the much improved amendment process, are intriguing. But that’s not the Constitution or the amendment process that we have. And many Americans are well on their way to proving that the amendment provision we do have, Article V, is perfectly fine for an amendment that most Americans say is urgently needed.
Is the Constitution still amendable? There’s only one way to find out.
