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We the People Rise Again; How could we (prudently) amend the Constitution by national referendum?—A Commentary by Bruce Ackerman ’67

The following commentary was posted on Slate.com on June 4, 2012.

We the People Rise Again; How could we (prudently) amend the Constitution by national referendum?
By Bruce Ackerman ’67

Over the next few weeks, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about the right to trial by jury, protecting informational privacy.

Popular Sovereignty Initiative (Article V)

Since the New Deal, the path to Constitutional amendment has become a road to nowhere. Thirteen states, possibly containing less than 5 percent of the population, can veto any change, gumming up the works. The women’s movement learned this lesson the hard way. Despite strong national majorities in favor of an Equal Rights Amendment, it wasted monumental amounts of political energy on a failed ratification campaign.

Franklin Roosevelt taught the nation a different way to make big constitutional changes. When the Supreme Court struck down major New Deal legislation, he appointed a series of liberal justices willing to overrule old decisions and usher in a new social compact.

Modern Republicans are following in Roosevelt’s footsteps. They have been trying to repeal the New Deal Constitution by New Deal means. Just as Franklin Roosevelt nominated Felix Frankfurter and William O. Douglas to repudiate a reactionary old court, Ronald Reagan nominated Antonin Scalia and Robert Bork to repudiate an activist liberal court. When the Bork nomination failed, Republican presidents have often pursued the same goal through stealth appointments.

This shift to stealth is profoundly undemocratic. Robert Bork deserves a lot of credit for presenting a candid case for right-wing revolution at his confirmation hearings—inviting the Senate to reject him if he was going too far. But when John Roberts said that he was only an umpire calling “balls and strikes,” he deprived the Senate of a fundamental check on a runaway judiciary. It’s no surprise that there is growing interest in passing amendments to halt the threat of what I’d argue is a “stealth constitutional revolution.”

Nevertheless, the path to amendment remains blocked. Before anybody wastes time on substantive proposals, we should campaign for a change in the existing rules governing the enactment of constitutional revisions.

Here’s my suggestion for a Popular Sovereignty Initiative to amend Article V:

The president, after gaining election to a second term in office, may propose amendments that, if approved by the House and Senate, shall be placed on the ballot of the several states for consideration at the next two presidential elections. If sixty percent of the nation’s voters approve the amendment at both elections, it shall become a part of this Constitution.

Like Article V (which will remain on the books as an alternate route to constitutional amendment), my proposal makes it tough to revise the Constitution. But in contrast to the existing state-centered ratification system, it will enable Americans to change our basic law through a national process of deliberation and decision. Since fundamental change is a serious business, it shouldn’t be an everyday occurrence. We should only allow a president who has earned re-election to initiate the national conversation. Since he can’t run for a third term, he won’t have the personal incentive to abuse this authority for re-election purposes. My proposal requires him to look ahead over two election cycles and consider whether his initiative has the staying power to sustain supermajority support after ongoing debate. This will encourage him to focus on serious solutions to real problems.

Given the polarization of American politics, I have only required a simple majority in the House and Senate to get the president’s proposals on the ballot. A presidential initiative is unlikely to go anywhere unless his party controls both houses of Congress—giving the president and his party a sufficient electoral mandate to put a serious proposal on the table for consideration by We the People.

When Americans start voting on the initiative, however, a supermajority should definitely be required—60 percent seems about right, since the biggest presidential landslides in our history haven’t significantly exceeded that figure. It’s even more important to insist that the initiative sustain high levels of support over two electoral cycles. This gives Americans four years to debate the proposal in a serious and sustained fashion. It prevents quick amendment in response to the demagogic manipulation of momentary crises.

Article V currently requires three-quarters of the states to ratify all formal amendments, including the Popular Sovereignty Initiative. That means 13 states could veto my proposal, blocking off this whole route to constitutional amendment. If that happened, the president and Congress could pass my initiative as an ordinary statute. This way, initiatives that gained voter approval wouldn’t count as constitutional amendments, but they would still be a kind of advisory opinion to the president, Congress, and the courts. And if the new system yielded sensible results over time, officials in Washington would increasingly ignore it at their peril. We’d have a way to make our voices heard on changing the Constitution—and eventually, we would overcome short-term resistance by the small states.