A National Popular Amendment Act?

Amending the United States Constitution is difficult, if not downright ridiculous. There are two ways that the Constitution can be amended. First, each of the two houses of Congress can pass an amendment, by two-thirds of their membership. Second, two-thirds of the states can call a constitutional convention. That’s thirty-three states, each with two legislative houses (except Nebraska, and good for them). But that’s not it. Regardless of the method of introducing an amendment, each amendment then has to be ratified by three-fourths of the state legislatures. Clearly, the amendment process for the American state is messed up.  How do we fix this?

The result of our prohibitively difficult amendment process is that we’re left with the detritus of a republic for a land-owning (and people-owning) aristocracy.  For example, we’re burdened with the Electoral College for the election of our presidents.  The distorting apportionment of electors violates the democratic principle of “one person, one vote”.  Hundreds of amendments have been introduced to replace the Electoral College with the direct election of the executive.  However, the absurd amendment process has prevented this, and other, anti-democratic state institutions from being abolished.

The solution to this problem has been to work around the Constitution at the state level.  Each state has the power to choose its electors as it sees fit.  (That’s why the rest of us get to vote in presidential elections in the first place, instead of just the state legislature.)  Thus, the state can choose to give all of its electors to the winner of the total national vote.  This is the ingenuity behind the National Popular Vote Act, originated by the law professor Robert Bennett at Northwestern University.  My own home state of Maryland was the first state to adopt the National Popular Vote Act, followed by another eight.  The National Popular Vote Act uses the power of the states to amend the Constitution in effect.

This suggests an analogous solution to the problem of amending the Constitution: a National Amendment Act.  The states have a significant role to play in the adoption of any constitutional amendment.  Any amendment must be ratified by three-fourths of the states to be effected.  The purpose of the National Amendment Act is to ease the passage of constitutional amendments through the states just as the National Popular Vote Act makes the election of electors democratic.

When a state passes the National Amendment Act, it binds itself to ratify any future amendment passed by two-thirds of Congress.  A further component might be to automatically concur with any other state that calls for a constitutional convention.  The effect of this would be to reduce the amendment process to acquiring the assent of two-thirds of Congress.  This would reduce the strategic target for constitutional change considerably.

The second stage of this strategy would be to focus on amending the amendment process itself, so that the Constitution could be amended by a national initiative and referendum.  The cost of significant change would be greatly reduced.  Politicians would become superfluous, and many of the needed amendments – the Equal Rights Amendment, an Economic Bill of Rights, a universal right to vote, etc – are already supported by a majority of Americans.  These would be expedited by reducing the amendment process to a simple popular vote.

The question remains as to whether this strategy is worth the effort it would take.  Popular energy is finite, so popular gains must be greater than the cost of popular mobilization.  Fighting for the amendment-by-referendum component of the strategy directly might be the more cost-effective.  Yet, the National Amendment Act passed in most states would at least bring us closer to a minimally democratic republic.

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