National Review has an interesting interview with Supreme Court Justice Antonin Scalia. The entire interview (video below) is worth your time to watch, but what caught my attention was Scalia’s answer to a question about what amendment, if any, he’d suggest for the Constitution.
His answer? He’d amend the amendment process.
“I am sometimes asked if I would amend any provision of the Constitution, and actually the one provision I would amend is the amendment provision,” said Scalia. “It is very, very difficult to amend it, infinitely more difficult than it was when that provision was written. It takes a two-thirds vote of each House to propose the amendment and then it has to be approved by three-quarters of the states. I figured it out once, if you took a bare majority in the smallest states by population, something less than 2 percent of the population could prevent a constitutional amendment. That is probably too severe and certainly much worse than it was.”
I’ve always felt that the federal legislative process was an arduous one by design, and should be kept that way (which is why I’m a supporter of the filibuster). Broad national policy should only be enacted with broad national consensus of the sort required by a complicated and difficult legislative process.
I think this goes even more so for constitutional amendments. The Constitution is not a document we should amend lightly. It should be (and is given the 203 year ratification process for the 27th amendment) a difficult process, and I’m fearful of the sort of policy we’d enshrine in the constitution were it to be an easier process.
If we made the amendment process easier I’m afraid we’d end up with smoking bans (why not, we put an alcohol ban in) and other nonsense as the “supreme law of the land.”
No thanks. I think the amendment process should be left alone.