Fifty years ago on July 1, the requisite three-fourths of American states ratified the 26th Amendment to the U.S. Constitution, giving citizens ages 18-20 the right to vote. Ninety-nine days earlier, more than 90% of U.S. House members joined a unanimous Senate to propose the constitutional amendment.
The 26th Amendment — the fastest ever ratified by the states — could be regarded as the most embraced amendment in American history. It may also be our last.
Yes, a subsequent amendment was ratified. But the Twenty-Seventh Amendment — proposed by the First Congress in 1789 as part of the original Bill of Rights and ratified more than two centuries later in 1992 — is a bizarre exception. In terms of start-to-finish amendments proposed and ratified by the same generation of politicians and citizens, like the 26th, we are more likely to see states secede the union or trigger a second constitutional convention before America adopts a twenty-eighth amendment.
Despite repeated calls over the past 50 years to amend the Constitution in various ways, none of the efforts has succeeded, nor even come close. Abortion opponents, supporters of terms limits, those frustrated with our Electoral College system and English language-only advocates are among countless groups that tried, but failed, to cement their structural or policy goals via amendment.
How did the Constitution become impervious to amending? The answer is simple, if daunting: Public and elite polarization make it impossible to assemble the supermajorities needed to propose, much less ratify, amendments.
At the proposal stage, amendment ideas are either quashed at the committee level, or they fall short of the two-thirds majorities required for Congress to send them to the states. Because the blocking power of smaller states is magnified by Senate malapportionment, the two-thirds requirement to pass even a broadly popular amendment through the Senate is effectively unattainable. With a combined population smaller than California’s, the smallest 17 states and their 34 combined senators are sufficient to block any proposed amendment.
Even if a widely popular idea managed to somehow squeak through the Senate, persuading three-quarters of states — 38, presently — to ratify a proposed amendment is even harder to imagine. The United States now features record numbers of same-party U.S. Senate pairs and so-called “trifecta” states featuring a governor and both state legislative chambers controlled by same party. The reason for the rising number of one-party states is that blue states are becoming bluer, red states redder. Because it takes just one state legislative chamber each (not both) in just 13 states to block ratification of a proposed amendment, ratifying an amendment in today’s polarized climate is even less likely than the divided Congress proposing one in the first place.
Simply put, the 138 words that prescribe the amendment process in the Constitution’s Article V have been rendered moot. That reality may provide comfort to those who, say, blanched when firebrand North Carolina Rep. Madison Cawthorn recently called for a preposterous amendment to merely underline the language of the existing Second Amendment. But the Constitution’s current immunity to absurd amendments also prevents serious fixes to ongoing and vexing problems, from how states establish voting rights to the partisan redistricting of U.S. House seats.
When the framers met in Philadelphia in 1787, they were tasked with fixing the Articles of Confederation, the charter that briefly and clumsily governed the new nation’s first republic. Among the Articles’ fatal weaknesses was its too-strict amendment process, which required the unanimous consent of every state. In drafting their new charter, the framers wisely lowered the bar for adopting amendments to the two-thirds proposal supermajority and the three-quarters ratification supermajority. That formula has generally served its purpose of ensuring that the Constitution was neither amended too often, nor at all.
But in the founding era, the ratio between the most populous state and the median population state was about 2.5 to 1; today, that ratio is roughly 6 to 1. That means that in the Senate at the proposal stage, and later among the states at the ratification stage, the wider and widening populations of modern states inflate the two-thirds and three-quarters thresholds beyond their nominal values.
Today’s threshold is not quite the unanimous consent standard of the failed Articles of Confederation, but as state populations grow more disparate, the probability of adopting amendments increasingly approaches zero. The Constitution those teenagers during the Vietnam era fought and died to protect is effectively fixed forever.
But for America’s disruptive and deadly Civil War, which itself yielded three new amendments, the framers’ formula for adopting amendments worked for nearly two centuries. What should alarm Americans — especially in the wake of the domestic terrorist attacks on the U.S. Capitol in January — is that the prospect of another civil war, however remote that may seem, is more likely today than altering the constitutional arrangements of the Republic peacefully via amendment.
Thomas F. Schaller (email@example.com) is a professor of political science at the University of Maryland, Baltimore County, and author of “Whistling Past Dixie.”