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Friday, May 16, 2008

What prompts structural constitutional amendments?

Carlton started a great discussion asking what the next constitutional amendment will be and has gotten a few good responses so far. I tend to think that any new amendment will be structural rather than rights-creating. But one of the comments, talking about the chances of dumping the Electoral College, suggested that if the 2000 debacle did not prompt a serious amendment move, it is hard to see what will. Indeed, the Electoral College reform efforts post-2000 have been all about ways to get to the functional equivalent of nationwide popular election without a constitutional amendment.

So this got me thinking: What has to happen to prompt a serious and successful move for a constitutional amendment, particularly a structural one? Let me suggest some considerations that, historically, appear to play into the mix, in some combination.

1) A signal event that triggers the particular structural rules and makes their defects clear. And it has to be a stark event--it took the Kennedy assassination to finally get people to create a mechanism to handle presidential disabilities and vice-presidential vacancies. I have worked with the Continuity of Government Commission that Carlton mentions in his post and saw first-hand the absolute inertia that set-in around any proposal that involved constitutional amendment. It seems pretty clear that United 93 was headed for the Capitol on 9/11. But it did not get there, so the stark event did not occur; its prospect does not seem to be enough to really start the amendment mechanism.

Ethan makes a similar point in talking about California's proposal for district-based awarding of electors, suggesting that such a proposal, if passed would force people to fully grasp the problems with the Electoral College and to shift their focus to a constitutional amendment.

2) The Supreme Court strikes down an attempt to achieve the result through means other than constitutional amendment. Suppose, for example, states establish the interstate compact to require electors to follow the national popular vote in the College and the Supreme Court strikes the compact down (for whatever reason). That might trigger a push for a national-popular vote amendment. Similarly, if the judicial-term-limits advocates succeed in enacting legislation that would functionally limit Supreme Court justices to 18-year-terms and the Court strikes them down, the next move would be an amendment.

3) Time matters. The groundswell for the amendment must be close on the heels of either of the above events. And if the groundswell does not achieve results within a relatively short time (say, a couple of years), nothing is going to happen. Look at the three structural amendments that have made it--the Eleventh Amendment (1795, two years after Chisholm v. George); the Twenty-Second (1952, seven years after FDR was elected and inaugurated for the fourth time); and the Twenty-fifth (1967, four years after Kennedy was assassinated).

That is why, for example, I think we are done with congressional term limits. We already had the Supreme Court decision rejecting the sub-amendment proposal to achieve term limits. And we had a signal event about the term limits issue--in 2006, when scores of GOP members, elected in 1994 on a platform of term limits and with the explicit promise to serve 12 years and leave, decided (surprise!) to run for re-election. And there has not been a meaningful move for an amendment following either event.


Update, Monday, 7 a.m. C.D.T.:

Ilya Somin at the VC argues that structural amendments only pass if they are driven by elites and if there is overwhelming bipartisan support (because of the supermajority requirements of Article V that Rick mentioned in the Comments). On the latter point, Somin argues, given our history, that bipartisan support is possible for structural amendments only if both sides believe the current system might work to its disadvantage at some future point or the changed system might work to its advantage.

Posted by Howard Wasserman on May 16, 2008 at 02:05 PM in Constitutional thoughts | Permalink

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» The Politics of Structural Constitutional Amendments: from The Volokh Conspiracy
Howard Wasserman has an interesting post on the causes of structural constitutional amendments. I agree with most of his points. For example... [Read More]

Tracked on May 19, 2008 12:52:23 AM

Comments

What about the 23rd Amendment? It seems to violate most of these provisos:

1) No signal event
2) No Supreme Court action

Timeliness isn't really applicable given the lack of 1 and 2.

The 23rd is interesting because it goes against this theory and because, in my opinion, there is a remaining structural defect with the lack of House representation for DC residents (Senate representation, too, but this is a substantially harder question that I don't want to digress into). There seems to be little prospect of resolving DC representation via ammendment, so something has changed between 1960 and today which might inform this discussion.

Posted by: Larry | May 19, 2008 3:14:54 PM

I agree that a faithless elector deciding the outcome would trigger a change (I mention this in an earlier comment). But three things on this:

First, this only would be a legal problem if the elector came from a state with a "faithless elector law" that limits elector discretion (must vote for the candidate to whom you pledged, must vote for state popular-vote winner); otherwise, it is just a bad thing that the Electoral College enables. Either way, it could prompt changes.

Second, if this were to occur and be unlawful, I think it *is* a political question. It is textually committed to the House to evaluate the validity and lawfulness of any electoral votes. We just don't trust the political branches to do things such as this in any principled, other-than-partisan way.

Third, I think this would be an interesting test of the Article II theory that Rehnquist proposed in his Bush v. Gore concurrence, under which all state law issues (such as whether that faithless elector could cast that vote) affecting the presidential election become federal issues.

Posted by: Howard Wasserman | May 19, 2008 8:06:16 AM

how about an elector not voting for the candidate he was elected to vote for, it deciding the election,-and then the supreme court ruling that it cant get involved becuase its a 'political question;

i think that would do it

Posted by: george weiss | May 19, 2008 1:50:59 AM

As I had suggested in an earlier post, Article V eliminates the possibility of any minimally controversial constitutional amendment, whether structural or otherwise.

Posted by: Rick Hills | May 17, 2008 4:10:51 PM

Andrew:

As I said in a Comment on Carlton's post: I think the necessary signal events to get rid of the Electoral College are either a) the College not producing a winner and the election being thrown to Congress or b) the electors exercising independent judgment and ignoring the state-by-state popular winners.

The popular-winner/electoral-loser just did not rile the public enough. Partly this is because the Republicans did a better job spinning the issue than the Democrats did after 2000. And I agree that it might have been different had Kerry won Ohio in 2004 or had the roles been reversed in 2000 (Bush wins national popular, loses College), which many had anticipated going in. And partly this is because the situation had happened twice before and most people were willing to shrug it off as something that happens every 50 or 100 years or so. That said, if it happens again in the next few years, it might ramp up interest in an amendment.

Posted by: Howard Wasserman | May 17, 2008 1:27:16 PM

Another criterion, most relevant to the Electoral College failure, is simply people's a priori estimate of political possibility. The 2000 election, as you point out, was in fact as signal an event as they come--the minority candidate won! I think the consensus is that an Electoral College reform amendment is a nonstarter because at least 13 states benefit from their disproportionate influence in the Presidential race. Even if everyone in the other states was raring to go, just about anyone can count to 13. So what's the point in investing any energy or resources into a stillborn Electoral College reform movement?

My fantasy in 2004, however, was that Kerry would lose the popular vote but win the Electoral College. A change of 60,000 votes in Ohio would have done it--but didn't. Perhaps both parties getting screwed by the Electoral College would have been a sufficient signal event.

Posted by: Andrew Carlon | May 16, 2008 3:51:14 PM

I think the best argument against electoral college reform was the very close Mexican election shortly after. Because Mexico is popular-vote polity, EVERY VOTE IN THE COUNTRY was up for scrutiny. All we had to think about was Florida (and a few malcontents contending that NM or WI had been stolen). Think how it would have been if Gore's vote total could have been brought up with new ballots 'discovered' in file cabinets in Chicago, or Bush's with new ballots 'discovered' in Waco. Ick. With the Electoral College, the focus was only on Florida.

Posted by: dave.s. | May 16, 2008 3:01:56 PM

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