Essay Help – Does the process by which the US Constitution is amended do more harm than good?

In this question you really need to consider what is meant by ‘harm’ and ‘what is meant by ‘good’. The constitution is uniquely difficult to amend because of the fear that a tyrant or dictator would assume power and amend the constitution as they saw fit. That the amendment process makes this almost impossible to occur, is the ‘good’. On the other hand, the difficult amendment process means that the minority often holds considerable power and can thereby weaken the premise of a democracy in which all are equal. Ultimately however, the amendment process is a force for good, as the worst than can happen, dictatorship, is profoundly more dangerous for America than the lack of a pure democracy, particularly when the democratic ‘will of the people’ is so often against the interests of the minority whom need protection more than most.

The amendment process is deliberately difficult because the framers of the constitution were determined to protect against tyranny of the majority by which a majoritarian view ruled and put the rights of minority groups at risk. This is a noble aim. If the amendment process was simpler than it is likely that the views of dominant geographical, racial or religious groups would determine the constitution. For example, it is conceivable that the far more liberal population centres around the east and west coasts would dominate thinking, putting in jeopardy the cultural practices of those in the more sparsely populated states in the old mid west. However, there is a danger that the amendment process is giving too much power to a small number of states. For example, in 1972 the Senate and the House of Representatives passed the Equal Rights Amendment that would ensure legal protections for women. Both houses passed the Equal Rights Amendments with an 80% majority. 35 of the 50 states then ratified by the Equal Rights Amendment and these states represented over 70% of the US population. Given the overwhelming desire for the passage of the Equal Right Amendment by both democratically elected houses and the vast majority of states, it is inconceivable that the amendment did not enter the constitution.  On balance, the greater risk is that amendments are steamrollered into the constitution without all states accepting them. At its core the framers wanted to ensure that individual states were free to be culturally unique from one another and that a United States of America would respect this. The difficult amendment process therefore protects an important element of the constitution, the right of the states, no matter how small, to have a role in the governing of the country as a whole.

The second point to make is that we need not fear a difficult amendment process preventing change because the Supreme Court has consistently done the job of updating the constitution over time.  In fact, former Supreme Court Justice, Charles Evans Hughes famously remarked that, ‘we are under a constitution, but the Constitution is what the judges say it is’. The fear that the amendment process might leave the USA behind the times and unable to adapt to new ideas is dispelled by this sentiment. For example, the Supreme Court legalised Gay Marriage in 2015 with the Obergefell v Hodges case. Here we can see how, as attitudes to gay marriage changed over time, so the Supreme Court was able to update the constitution to reflect this. Despite this, it is problematic that constitutional rights are now effectively in the hands of 9 Supreme Court justices given that they are unaccountable for the decisions that they take. These are decisions that should be taken by politicians who are then accountable to the people at elections. Moreover, so many rights that had once been guaranteed by the Supreme Court, rather then via a constitutional amendment, are liable to dismissed by future courts with a different ideological outlook. For example, the guaranteed protections on a woman’s right to an abortion given in Roe v Wade in 1972 were effectively removed in the Dobbs v Jackson decision of 2022. It would be much harder to remove such rights if they had been formally created as amendments to the constitution. There should be no need for the Supreme Court to take such politically important decisions. As former Supreme Court justice, Antonin Scalia once said ‘You want a right to abortion? Create it the way all rights are created in a democracy, pass a law. The death penalty? Pass a law’. Yet Scalia’s argument refuses to acknowledge the difficultly posed by the amendment process. The amendment process is not democratic, it gives too much power and influence to a minority and thereby it is time to make the amendment process more democratic and reduce the influence of the minority to ensure that the Supreme Court has less power to determine so many fundamental questions.

A final point to make is that the amendment process has done more good than harm because it has prevented short termism and amendments to suit a populist mood. Following the 9/11 attacks in 2001, many countries around the world, where the process for amending the constitution was simpler, were able to pass laws that removed the fundamental rights of citizens, more often than not affecting  minority groups. For example, in Britian, the Blair government passed the Anti-Terrorism, Crime and Security Act which allowed for the detention of individuals that were suspected of terrorism. In the US however, this was much harder to achieve thanks to the difficult amendment process. A good example of how the amendment process protects against short term thinking might be demands to insert a flag desecration amendment into the constitution. This followed the case of Texas v Johnson in 1990 whereby the Supreme Court determined that burning the flag was an act of free speech. Following the case there were demands to amend the constitution to prevent the burning of the flag and attempts were made in each Congress between 1995-2005. This is short term populist thinking. The amendment process, by which two thirds in both houses are needed to concur for an amendment to take place meant that the flag desecration amendment was never accepted. Nonetheless, such a desire to protect against short term thinking has led to the Constitution being slow to adapt to changing circumstances. For example, the US constitution continues to permit the rights of citizens to buy and hold firearms. Some might argue that this is particularly troublesome as the founders would never have imagined how guns would evolve and that they could be used in mass shootings. The difficult amendment process makes longer term thinking in the benefit of the population much harder to achieve because it enables groups to organise and oppose change. In the UK a government could take tough decisions that are politically unpopular and hope that the electorate has forgotten about then by the time of the next election. In the USA, the amendment process gives groups too much power to organise and oppose change. On the whole, it is more important that the constitution prevents short termism than it is to ensure constant evolution. As we have mentioned previously the court can update the constitution and therefore, the amendment process is not a block on change.