In a recent interview with New York Magazine, conservative U.S. Supreme Court Justice Antonin Scalia offered an interesting answer when asked what he thought the "flaws" with the U.S. Constitution were. Scalia said he would amend the portion of the document that allows for its own amendment.
Scalia said the amendment process "was not originally a flaw," but the country has changed enough to render changing the Constitution virtually impossible. "With the divergence in size between California and Rhode Island — I figured it out once," Scalia said. "I think if you picked the smallest number necessary for a majority in the least populous states, something like less than 2% of the population can prevent a constitutional amendment."
Scalia's answer is an interesting one, because it softens a common conservative taunt: That is, if judicial liberals want something in the Constitution, they should pass an amendment rather than simply reading it into the document's text.
It is a safe challenge for conservatives to offer, primarily because amending the U.S. Constitution is so difficult. It takes the agreement of 290 members of the U.S. House of Representatives, 67 senators, and both houses of 38 state legislatures. Consequently, it has been 43 years since a constitutional amendment was ratified by both Houses of Congress and by a sufficient number of states. (The 27th Amendment was ratified by the magical 38th state in 1992, but was originally sent to the states for approval in 1791, when there were no time limits for ratification.)
In fact, the 43 years that has passed since ratification of the 26th Amendment is tied for the second longest period in American history without amending the Constitution. Between the 12th and 13th Amendments, 61 years passed, and an identical 43 years passed between the 15th and 16th Amendments. Yet there is no current plausible constitutional change as far as the eye can see, and it is entirely possible America could blow through the 61-year record 18 years from now.
Making changes to the Constitution more realistic does have appeal for judicial conservatives; it makes the challenge to enact public policy through amendment more than a rhetorical jab. If the Constitution could be amended more regularly, it would provide a pressure relief valve; judges wouldn't be forced to invent rights and privileges that aren't found in the original document — they could instead urge fundamental societal change through the democratic process, where it belongs.
In recent years, the court has operated under Charles Evans Hughes' blunt dictum in 1907 that, "the constitution is what the Supreme Court says it is." (Fortunately, the court has not deemed the Constitution to be a salami sandwich, although that would make the U.S. both the world's oldest and most delicious constitutional democracy.) Pushing more responsibility for saying what the Constitution is out of judicial chambers and into the hands of voters could foster a more robust debate when it is time to make fundamental changes.
But while it is true that the founders couldn't envision the current fractured state of the union, they obviously intended for the amendment process to be difficult. Only the most broadly accepted changes to our fundamental document should be allowed; it shouldn't be left to the whims of a capricious public. In fact, if anything, the fact that it has only been amended 27 times is a testament to the original Constitution's genius.
In fact, more lax state constitutional amendment processes show us what a mess it can be when constitutions simply act as enhanced statute books. In states such as California and Colorado, voters have enacted constitutional changes via public referendum that often conflict with one another, leaving the courts to sort out the confusion.
Here in Wisconsin, where a constitutional change must pass two successive legislatures and a public referendum, voters and lawmakers rushed to the polls in 2006 to codify a constitutional ban on gay marriage; only seven years later, that decision looks as antiquated as a Limp Bizkit tattoo.
(The only other option provided by Article V of the Constitution would be to hold a constitutional convention, if requested by the legislatures of at least 34 states — but rewriting an entirely new Constitution in 2013 would be an absolute freak show. "We will now hear testimony from a group asserting its right to squirt lotion on you as you walk through the mall.")
The key to counteracting judicial activism is to do exactly what Scalia does best; eruditely make the case for originalism and textualism in our courts. Anyone who thinks the public won't act capriciously if given more flexibility to amend the Constitution should be forced to drink booze made of paint thinner in a dank speakeasy.