There is an interesting short piece on Justices Scalia and Ginsburg and their views of constitutional amendments. This short news story touches upon a variety of issues that I have discussed at this blog and in scholarship.
Scalia writes “I certainly would not want a constitutional convention,” Scalia told moderator Marvin Kalb. “Whoa! Who knows what would come out of it?” But, he explained, he once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. “It ought to be hard, but not that hard,” Scalia said.
The fear of a constitutional convention leading to undesirable amendments has often been voiced. One way around this is for states to apply for a convention limited to a certain subject, but many have argued that such a convention is unconstitutional. I disagree.
Scalia argues that less than 2 percent of the country could prevent an amendment to the Constitution. Presumably, he means that the least populous 13 states could block the ratification of an amendment. It could happen, but it is not likely. The expected population necessary to block an amendment is just above 25 percent of the population. The smaller percentage Scalia mentions could block an amendment only if the least populous states opposed the amendment. But there is little reason to believe that scenario would occur.
The failure of the push to add the equal rights amendment, Ginsburg noted, was an example of how difficult the amending process is.
It is often argued that the failure of the ERA to pass shows the amendment process is too strict. But I am skeptical. I believe either the ERA or an amendment that was more carefully drafted would have passed except for two reasons both relating to nonoriginalism. First, the Court engaged in judicial updating of the Constitution to start protecting women under the Equal Protection Clause and therefore there was less reason to pass the amendment, since women were already protected. Second, the Warren Court had been regularly engaging in nonoriginalist interpretation and therefore people believed the Court would use the amendment to require unpopular results, such as same sex bathrooms or women in combat, even though defenders of the amendment claimed it did not have that meaning. See here and here.