Amending the Constitution Through Direct Democracy

Over the weekend, I attended a great conference at Stanford Law School entitled, A Big Fix: Should We Amend Our Constitution.  The idea for the conference was to have various people propose constitutional amendments.  Some years ago, I proposed a constitutional amendment of my own as part of the Room for Debate feature of the New York Times.  See here and here.

My job was to comment on Sandy Levinson’s proposed amendments to the Constitution.  While Levinson proposed various provisions, his most interesting proposal was for constitutional amendments to be enacted through direct democracy.  Under Levinson’s proposal, 10 percent of those eligible to vote throughout the nation can, by signing an identically worded petition, propose a constitutional amendment.  Then that proposed amendment is subject to ratification through a national referendum, under which 67% of the eligible national electorate or more than 50% of the actual voters, whichever number is higher, can ratify it.

There is a lot that I do not like about this proposal.  First, the 10 percent petition requirement is not likely to produce much deliberation or debate.  In California, we have a similar system and there is little debate about matters for which people are collecting signatures.  Second, the national referendum also is problematic.  I prefer 50 states deciding on ratification for two reasons.  The national referendum occurs on a single date, which can make them especially sensitive to temporary political circumstances.  In addition, 50 debates are likely to involve more deliberation than one single national debate.  Finally, I do not believe 50% of the actual voters should be able to ratify.  A greater supermajority should be required.

But I do have some sympathy for the idea of allowing constitutional amendments that are not controlled by government officials.  Under the Constitution as originally written, neither the federal government nor the state legislatures could block a constitutional amendment.  (Unfortunately, the convention method of avoiding the federal government does not work, although people are now trying to breathe life into it.)  There is a similar argument for preventing government officials from blocking constitutional amendments.

But there are other ways to accomplish this than Sandy’s proposal.  Here is one: After 10% of voters sign a petition, the amendment is sent to a national convention, which could propose the amendment if two thirds of delegates approved the amendment.  Then, the amendment would be sent to the states for ratification by two thirds of the states through state referenda.

(There are alternative arrangements as well.  Depending on one’s views about the matter, one could require three quarters of the states to ratify and one could have the states ratify by state convention rather than referenda.  Also, if one were concerned that the small states have too much power, one could weight the votes of the states by their population.)

Thus, one could set up an arrangement that allowed constitutional amendments without the consent of government officials, but still retain many of the existing features of the Constitution’s amendment method.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Paul Binotto says

    Personally, I prefer any process that replicates most closely, the ratification period of the 27th Amendment.

    Conversely, four amendments in ten years, (1961-1971; XXIII-XXVI), although each may be “no-brainers”, and generally benign, (the XXVI, maybe not so much); XXIII & XXIV representing long overdue corrections of actual or potential injustices – still in my view, is a dangerous, even reckless pace of amendment.

    The very, (frequently irrational, rebellious), national political and social upheaval typified by that decade in American history, one that made it possible to ratify four constitutional amendments in such a relatively brief span, also has the potential for the “drafting” (pun intended), of some very poorly reasoned, ill-considered, even steeply partisan, amendments into the constitution, by driving them closely into the slipstream of a national fervor for constitutional amendment.

    Perhaps a process whereby at that point when two thirds or maybe three fourths of the states have amended their state constitutions to attach similar, comparable subject matter of amendment, a national consensus of amendment could be declared, thus triggering Congress to draft a similar/comparable proposed amendment to the U.S. Constitution, this upon obtaining two-thirds vote in both houses of Congress, to be submitted to the people for ratification either by national referendum, or by current process of state legislature ratification, would have some merit.

  2. John Thompson says

    Let’s please first determine whether what exists is broken before we resort to such initiative- or referendum-based “fixes” similar to state and local procedures that have a mixed record at best. It is by no means apparent to me that the corrective for what that ails us is likely to be facilitated through an injection of more “democracy”.

    My preference is a clear-eyed, non-hysterical, propaganda-free resort to an Article V Convention of States.

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