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9 Changes to the Constitution – How Would You Change It?

changing the constitution essay

We last amended the Constitution a generation ago.

So much has changed since then. 

The viral-like spread of the Internet was two years away. Pagers were still gaining in popularity. Arugula was rare in grocery store aisles.

The economy was starting to recover from a recession, gliding its way into a tech boom. We had a mix of confidence and healthy skepticism in our government, after having crushed Saddam Hussein’s Iraq in war. At the southern tip of Manhattan, the World Trade Center towers stood as two exclamation points on a magnificent skyline.

The 27th Amendment passed back in 1992 now seems like a historical footnote, rather than a prophetic statement of values. It stopped Congress from hiking its salaries mid-session , a symbolic act that did little to improve the public’s opinion of Capitol Hill.

For the July 4th holiday, The Fiscal Times reached out to leading experts, lawmakers and academics with a simple question: How would you amend the Constitution?

Their answers, edited for space, are below:

IMMIGRANTS CAN BE PRESIDENT It bothers me that our Constitution excludes from the presidency all Americans who lack a U.S. citizen parent, the so-called “natural born citizen” clause.

I’d like to change Section 1, Article 2 to simply read, “No person except a citizen of the United States shall be eligible for the office of President.” Think of all the remarkable Americans who have held high public office but have been constitutionally barred from seeking the presidency, such as Madeleine Albright (born in Czechoslovakia), Elaine Chao (Taiwan), Jennifer Granholm (Canada), and Arnold Schwarzenegger (Austria).   – Stephen H. Hess , presidential scholar and senior fellow emeritus, Brookings Institution

REMIND D.C.: STATES ARE IN CHARGE If I were able to amend the Constitution by a wave of a wand, I'd try to find some way to make the 10th Amendment more effective.

The rights of states have gradually been so eroded that it's creating a congestion of taxes and regulations and paper work. I would like to have a 10th Amendment on steroids – which would somehow cause our country and our jurisprudence to remember our federal structure, and realize that the central government is limited and that powers are reserved to the states.

For example, the Marketplace Fairness Act  that we just passed in the Senate was all about whether Washington will allow states to set their own tax policy. That shouldn't even be an issue in my opinion under the 10th Amendment. – Sen. Lamar Alexander (R-TN)

GUARANTEE A FEDERAL RIGHT TO VOTE (WE DON’T HAVE ONE) Americans often talk about their “right” to vote. The reality – noted in cases like Bush v. Gore – is that no affirmative federal right to vote exists. Instead, courts often defer to state-based voting laws and administration. Although Americans vote for one president, one U.S. representative, and usually one U.S. senator, every one of the greater than 3,000 counties in the United States can administer federal elections in a unique (and often inefficient) way.   While it wouldn’t be an instant cure-all, a constitutional amendment conferring a right to vote and empowering Congress to enforce that right would provide voters with heightened legal protections and set the stage for standards that enhance the voting experience for all Americans, regardless of where they live.  – Joshua Field , deputy director, Legal Progress at the Center for American Progress

BALANCE THE BUDGET I would like to see an amendment requiring a balanced “primary” budget , which means that the cost of servicing the national debt would be excluded.

It should contain a provision that Congress must reduce spending proportionately across areas of the federal budget and that tax increases must maintain the present progressivity of the tax code, phased in within ten years of the amendment’s passage.

Without a constitutional mandate, politicians and other citizens simply will not have the will to make the changes necessary to address our looming fiscal crisis.  – Steve Bell , senior director at the Bipartisan Policy Center

NO LIFETIME JOBS FOR SUPREME COURT JUSTICES If I could amend the Constitution, I would add a provision ending lifetime tenure for federal courts, especially the Supreme Court. I would replace it with a long, nonrenewable term of no more than 20 years. Furthermore, I believe the Chief Justice should not hold this position for life, but for a four-year term that would be renewable.

This reform would reduce the intensity of debate on court nominations because the stakes wouldn’t be so high; it would reduce pressure to appoint young judges who will spend the maximum amount of time on the court; it would reduce pressure on federal judges to avoid retirement lest a member of the opposite party appoint their replacement; and it would bring fresh blood and thinking into the judicial system.

A June 7, 2012 CBS News/New York Times poll found 60 percent of people agreeing that lifetime appointments gives judges too much power versus 33 percent who said it is a good thing because it makes judges independent. –  Bruce Bartlett , former deputy assistant Treasury secretary for economic policy; columnist for The Fiscal Times

DON’T CHANGE A THING Several major conservative thinkers suggested that the Constitution does not need to be changed, but rather to have its principle of limited government guide both Congress and the president.

Michael Cannon at the Cato Institute noted that the Fourth Amendment protects against warrantless searches, “yet the National Security Agency tracks everybody with Congress' tacit if not explicit consent.”

Instead of an amendment, Tom Miller of the American Enterprise Institute said the Constitution needs “a better glossary to define and restrain the many open-ended words and phrases in the Constitution’s actual text that provide wide latitude for judicial reinterpretation and expansion far beyond their original meaning.”

Here is the rationale from Matt Kibbe , president and CEO of FreedomWorks: The Constitution and the Bill of Rights don’t need any additions or changes – they just need to be applied consistently throughout government in order to actually work. The responsibility lies with “We the People” to hold our elected officials accountable to defending those rights at every turn. 

A truly constitutionally-limited government would not be almost $17 trillion in debt because there would be no unconstitutional bailouts, health care takeovers or farm subsidies. Energy plants would not be closing their doors, because pollution would be managed through private property rights and not arbitrary regulations.

The IRS would not have the discretionary power required to discriminate against Americans based on their political beliefs, and innocent civilians would be protected from unreasonable searches and seizures by Homeland Security and the NSA.

The Federal Reserve would not devalue the dollar, because the Fed wouldn’t exist – there would be no government-induced boom and bust. The president would not issue so many executive orders, because only Congress would have the power to legislate.

NO PRESIDENTIAL TERM LIMITS The essence of the American Constitution was the creation of a document of non governance. It says what government cannot do – not what it can do. The government cannot regulate speech, association, religion, press, and gun ownership.\

The 22nd Amendment does regulate what the people can do, namely elect a president as often as they like. It was passed by Republicans as soon as they could, not wanting to put up with another FDR. Of course, it backfired as ill-considered things often do, as they could not elect Ike or Reagan to a 3rd term.

As long as representatives can be elected and re-elected with impunity, then so, too, should presidents.  – Craig Shirley , historian and Ronald Reagan biographer

WORST-CASE-SCENARIO CONGRESS I hate amending the Constitution as a general matter.

But we have no plan in place to get the House of Representatives and Senate up and running quickly if there is a terrorist attack that kills or disables enough people that you fall below a quorum. The only effective way to deal with this is to have a constitutional amendment that would enable emergency interim appointments.  – Norman Ornstein , resident scholar at the American Enterprise Institute 

MAKE PUBLIC SERVICE MANDATORY I'd propose a Universal National Service amendment – a constitutional requirement that all able-bodied Americans ages 18 to 26 devote at least two years to the service of their nation. They could select a service activity from among a wide variety of U.S. military branches, civilian government (national, state, and local), and qualifying non-profit options. The details are in my book, A More Perfect Constitution .

In essence, it would be a Bill of Responsibilities to accompany the Bill of Rights. Everyone should contribute something of themselves, not just taxes, to the nation that has long been a beacon of hope and the envy of the world.  – Larry Sabato , University of Virginia political scientist

PUBLIC FINANCING FOR CAMPAIGNS To get elected and to stay elected, politicians now have to spend much of their time raising money and, thereby, becoming beholden to donors. The current system is, by its very nature, corrupt and those who campaign are almost inescapably corrupted.

The amendment should authorize Congress to regulate and finance primary and general elections for the presidency, the House, and the Senate. It should require that all private contributors be listed by name within a matter of days. The wording should allow direct funding for campaigns, public funds to match private contributions, caps on total campaign spending, bars on campaign spending by outside groups.  – Henry Aaron , senior fellow at the Brookings Institution

Brianna Ehley, David Francis, Maureen Mackey and Eric Pianin of The Fiscal Times contributed reporting .


changing the constitution essay

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How to Amend the Constitution

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Amending the Constitution was never meant to be simple. Although thousands of amendments have been discussed since the original document was approved in 1788, there are now only 27 amendments in the Constitution.

Though its framers knew the Constitution would have to be amended, they also knew it should never be amended frivolously or haphazardly. Clearly, their process for amending the Constitution has succeeded in meeting that goal.

Constitutional amendments are intended to improve, correct, or otherwise revise the original document. The framers knew it would be impossible for the Constitution they were writing to address every situation that might come along.

Ratified in December 1791, the first 10 amendments— The Bill of Rights —list and vow to protect certain rights and freedoms granted to the American people and speak to the demands of the Anti-Federalists among the Founding Fathers by limiting the power of the national government.

Ratified 201 years later, in May 1992, the most recent amendment—the 27th Amendment —prohibited members of Congress from raising their own salaries . 

Considering how rarely it has been amended during its over 230-year history, it is interesting to note that Thomas Jefferson firmly believed the Constitution should be amended at regular intervals. In a famous letter, Jefferson recommended that we should “provide in our constitution for its revision at stated periods.” “Each generation” should have the “solemn opportunity” to update the constitution “every nineteen or twenty years,” thus allowing it to “be handed on, with periodical repairs, from generation to generation, to the end of time.”

However, the father of the Constitution, James Madison rejected Jefferson’s rash idea of a new constitution every 20 years. In Federalist 62 , Madison denounced volatility of the laws, writing, “Great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success, and profit of which may depend on a continuance of existing arrangements.”

The difficulty of amending the Constitution has far from frozen the document in stone. The process of changing the Constitution by means other than the formal amendment process has historically taken place and will continue to take place. For example, the Supreme Court, in many of its decisions effectively modifies the Constitution. Similarly, the framers gave Congress, through the legislative process , the power to enact laws that expand the Constitution as needed to respond to unforeseen future events. cIn the 1819 Supreme Court case of McCulloch v. Maryland , Chief Justice John Marshall wrote that the Constitution was intended to endure for the ages and to be adapted to the various crises of human affairs.

Two Methods

Article V of the Constitution itself establishes the two ways in which it may be amended:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

In simple terms, Article V prescribes that amendments may be proposed either by the U.S. Congress or by a constitutional convention when and if demanded by two-thirds of the legislatures of the states.

Method 1: Congress Proposes an Amendment

An amendment to the Constitution may be proposed by any member of the House of Representatives or the Senate and will be considered under the standard legislative process in the form of a joint resolution.

In addition, as ensured by the First Amendment , all American citizens are free to petition Congress or their state legislatures to amend the Constitution.

To be approved, the amending resolution must be passed by a two-thirds supermajority vote in both the House and the Senate.

Given no official role in the amendment process by Article V, the president of the United States is not required to sign or otherwise approve the amending resolution. Presidents, however, typically express their opinion of proposed amendments and may attempt to persuade Congress to vote for or against them.

States Ratify the Amendment

If approved by Congress, the proposed amendment is sent to the governors of all 50 states for their approval, called “ratification.” Congress will have specified one of two ways by which the states should consider ratification:

  • The governor submits the amendment to the state legislature for its consideration; or
  • The governor convenes a state ratifying convention.

If the amendment is ratified by three-fourths (currently 38) of the state legislatures or ratifying conventions, it becomes part of the Constitution.

Congress has passed six amendments that never received ratification by the states. The most recent was to give full voting rights to the District of Columbia, which expired unratified in 1985.

Resurrecting ERA?

Clearly, this method of amending the Constitution can be lengthy and time-consuming. However, the U.S. Supreme Court has stated that ratification must be completed within “some reasonable time after the proposal.”

Beginning with the 18th Amendment granting women the right to vote , it has been customary for Congress to set a maximum time period for ratification.

This is why many have felt the Equal Rights Amendment (ERA) is dead, even though it now needs only one more state to ratify it to achieve the required 38 states.

The ERA was passed by Congress in 1972, and 35 states had ratified it by its extended deadline of 1985. However, in 2017 and 2018, two more states ratified it, concerned about the constitutionality of setting those deadlines.

An effort in Virginia to become the 38th state to ratify the ERA failed by a single vote in February 2019. Pundits expected a battle to ensue in Congress over whether to accept the "late" ratifications had Virginia succeeded.

Method 2: The States Demand a Constitutional Convention

Under the second method of amending the Constitution prescribed by Article V, if two-thirds (currently 34) of the state legislatures vote to demand it, Congress is required to convene a full constitutional convention.

Just as in the Constitutional Convention of 1787 , delegates from every state would attend this so-called “Article V Convention” for the purpose of proposing one or more amendments.

Though this more momentous method has never been used, the number of states voting to demand a constitutional amending convention has come close to the required two-thirds on several occasions. The mere threat of being forced to surrender its control of the constitutional amendment process to the states has often prompted Congress to preemptively propose amendments itself.

Although not specifically mentioned in the document, there are five unofficial yet legal ways of changing the Constitution  used more often—and sometimes even more controversially—than the Article V amendment process. These include legislation, presidential actions, federal court rulings, actions of the political parties, and simple custom.

Can Amendments Be Repealed?

Any existing constitutional amendment can be repealed but only by the ratification of another amendment. Because repealing amendments must be proposed and ratified by one of the same two methods of regular amendments, they are very rare.

In the history of the United States, only one constitutional amendment has been repealed. In 1933, the 21st Amendment repealed the 18th Amendment—better known as “prohibition”—banning the manufacture and sale of alcohol in the United States.

Though neither has ever come close to happening, two other amendments have been the subject of repeal discussion over the years: the 16th Amendment establishing the federal income tax and the 22nd Amendment limiting the president to serving only two terms.

Most recently, the Second Amendment has come under critical scrutiny. In his opinion piece appearing in The New York Times on March 27, 2018, former Supreme Court Justice John Paul Stevens controversially called for the repeal of the Bill of Rights amendment, which guarantees “the right of the people to keep and bear Arms, shall not be infringed.”

Stevens argued that it would give more power to people's desire to stop gun violence than the National Rifle Association.

  • " The Constitutional Amendment Process " The U.S. National Archives and Records Administration. November 17, 2015.
  • Huckabee, David C. Ratification of Amendments to the U.S. Constitution Congressional Research Service reports. Washington D.C.: Congressional Research Service, The Library of Congress.
  • Neale, Thomas H. The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress Congressional Research Service.
  • The U.S. Constitution
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  • Fast Facts About the U.S. Constitution
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  • Why No Term Limits for Congress? The Constitution
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Article V and the Amendment Process

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changing the constitution essay

  • An amendment is a change or addition to the Constitution.
  • When drafting the Constitution, the Framers detailed an amendment process in Article V that gave citizens avenues to change the Constitution.

Why do we need an amendment process?

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Article V, The United States Constitution , 1787

Challenges to the amendment process

Food for thought.

  • Besides the amendment process, how can the federal government change the Constitution?
  • Why do you think the United States has never had an amendment pass through the convention method?

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By: Editors

Updated: March 28, 2023 | Original: October 27, 2009

Signing of the United States Constitution(Original Caption) The signing of the United States Constitution in 1787. Undated painting by Stearns.

The Constitution of the United States established America’s national government and fundamental laws, and guaranteed certain basic rights for its citizens. 

It was signed on September 17, 1787, by delegates to the Constitutional Convention in Philadelphia. Under America’s first governing document, the Articles of Confederation, the national government was weak and states operated like independent countries. At the 1787 convention, delegates devised a plan for a stronger federal government with three branches—executive, legislative and judicial—along with a system of checks and balances to ensure no single branch would have too much power. 

The Preamble to the U.S. Constitution

The Preamble outlines the Constitution's purpose and guiding principles. It reads:

The Bill of Rights were 10 amendments guaranteeing basic individual protections, such as freedom of speech and religion, that became part of the Constitution in 1791. To date, there are 27 constitutional amendments.

Articles of Confederation

America’s first constitution, the Articles of Confederation , was ratified in 1781, a time when the nation was a loose confederation of states, each operating like independent countries. The national government was comprised of a single legislature, the Congress of the Confederation; there was no president or judicial branch.

The Articles of Confederation gave Congress the power to govern foreign affairs, conduct war and regulate currency; however, in reality these powers were sharply limited because Congress had no authority to enforce its requests to the states for money or troops.

Did you know? George Washington was initially reluctant to attend the Constitutional Convention. Although he saw the need for a stronger national government, he was busy managing his estate at Mount Vernon, suffering from rheumatism and worried that the convention wouldn't be successful in achieving its goals.

Soon after America won its independence from Great Britain with its 1783 victory in the American Revolution , it became increasingly evident that the young republic needed a stronger central government in order to remain stable.

In 1786, Alexander Hamilton , a lawyer and politician from New York , called for a constitutional convention to discuss the matter. The Confederation Congress, which in February 1787 endorsed the idea, invited all 13 states to send delegates to a meeting in Philadelphia.

Forming a More Perfect Union

On May 25, 1787, the Constitutional Convention opened in Philadelphia at the Pennsylvania State House, now known as Independence Hall, where the Declaration of Independence had been adopted 11 years earlier. There were 55 delegates in attendance, representing all 13 states except Rhode Island , which refused to send representatives because it did not want a powerful central government interfering in its economic business. George Washington , who’d become a national hero after leading the Continental Army to victory during the American Revolution, was selected as president of the convention by unanimous vote.

The delegates (who also became known as the “framers” of the Constitution) were a well-educated group that included merchants, farmers, bankers and lawyers. Many had served in the Continental Army, colonial legislatures or the Continental Congress (known as the Congress of the Confederation as of 1781). In terms of religious affiliation, most were Protestants. Eight delegates were signers of the Declaration of Independence, while six had signed the Articles of Confederation.

At age 81, Pennsylvania’s Benjamin Franklin (1706-90) was the oldest delegate, while the majority of the delegates were in their 30s and 40s. Political leaders not in attendance at the convention included Thomas Jefferson (1743-1826) and John Adams (1735-1826), who were serving as U.S. ambassadors in Europe. John Jay (1745-1829), Samuel Adams (1722-1803) and John Hancock (1737-93) were also absent from the convention. Virginia’s Patrick Henry (1736-99) was chosen to be a delegate but refused to attend the convention because he didn’t want to give the central government more power, fearing it would endanger the rights of states and individuals.

Reporters and other visitors were barred from the convention sessions, which were held in secret to avoid outside pressures. However, Virginia’s James Madison (1751-1836) kept a detailed account of what transpired behind closed doors. (In 1837, Madison’s widow Dolley sold some of his papers, including his notes from the convention debates, to the federal government for $30,000.)

Debating the Constitution

The delegates had been tasked by Congress with amending the Articles of Confederation; however, they soon began deliberating proposals for an entirely new form of government. After intensive debate, which continued throughout the summer of 1787 and at times threatened to derail the proceedings, they developed a plan that established three branches of national government–executive, legislative and judicial. A system of checks and balances was put into place so that no single branch would have too much authority. The specific powers and responsibilities of each branch were also laid out.

Among the more contentious issues was the question of state representation in the national legislature. Delegates from larger states wanted population to determine how many representatives a state could send to Congress, while small states called for equal representation. The issue was resolved by the Connecticut Compromise, which proposed a bicameral legislature with proportional representation of the states in the lower house ( House of Representatives ) and equal representation in the upper house (Senate).

Another controversial topic was slavery. Although some northern states had already started to outlaw the practice, they went along with the southern states’ insistence that slavery was an issue for individual states to decide and should be kept out of the Constitution. Many northern delegates believed that without agreeing to this, the South wouldn’t join the Union. For the purposes of taxation and determining how many representatives a state could send to Congress, it was decided that enslaved people would be counted as three-fifths of a person. Additionally, it was agreed that Congress wouldn’t be allowed to prohibit the slave trade before 1808, and states were required to return fugitive enslaved people to their owners.

Ratifying the Constitution

By September 1787, the convention’s five-member Committee of Style (Hamilton, Madison, William Samuel Johnson of Connecticut, Gouverneur Morris of New York, Rufus King of Massachusetts ) had drafted the final text of the Constitution, which consisted of some 4,200 words. On September 17, George Washington was the first to sign the document. Of the 55 delegates, a total of 39 signed; some had already left Philadelphia, and three–George Mason (1725-92) and Edmund Randolph (1753-1813) of Virginia , and Elbridge Gerry (1744-1813) of Massachusetts–refused to approve the document. In order for the Constitution to become law, it then had to be ratified by nine of the 13 states.

James Madison and Alexander Hamilton, with assistance from John Jay, wrote a series of essays to persuade people to ratify the Constitution. The 85 essays, known collectively as “The Federalist” (or “The Federalist Papers”), detailed how the new government would work, and were published under the pseudonym Publius (Latin for “public”) in newspapers across the states starting in the fall of 1787. (People who supported the Constitution became known as Federalists, while those opposed it because they thought it gave too much power to the national government were called Anti-Federalists.)

Beginning on December 7, 1787, five states– Delaware , Pennsylvania, New Jersey , Georgia and Connecticut–ratified the Constitution in quick succession. However, other states, especially Massachusetts, opposed the document, as it failed to reserve un-delegated powers to the states and lacked constitutional protection of basic political rights, such as freedom of speech, religion and the press. 

In February 1788, a compromise was reached under which Massachusetts and other states would agree to ratify the document with the assurance that amendments would be immediately proposed. The Constitution was thus narrowly ratified in Massachusetts, followed by Maryland and South Carolina . On June 21, 1788, New Hampshire became the ninth state to ratify the document, and it was subsequently agreed that government under the U.S. Constitution would begin on March 4, 1789. George Washington was inaugurated as America’s first president on April 30, 1789. In June of that same year, Virginia ratified the Constitution, and New York followed in July. On February 2, 1790, the U.S. Supreme Court held its first session, marking the date when the government was fully operative.

Rhode Island, the last holdout of the original 13 states, finally ratified the Constitution on May 29, 1790.

The Bill of Rights

In 1789, Madison, then a member of the newly established U.S. House of Representatives , introduced 19 amendments to the Constitution. On September 25, 1789, Congress adopted 12 of the amendments and sent them to the states for ratification. Ten of these amendments, known collectively as the Bill of Rights , were ratified and became part of the Constitution on December 10, 1791. The Bill of Rights guarantees individuals certain basic protections as citizens, including freedom of speech, religion and the press; the right to bear and keep arms; the right to peaceably assemble; protection from unreasonable search and seizure; and the right to a speedy and public trial by an impartial jury. For his contributions to the drafting of the Constitution, as well as its ratification, Madison became known as “Father of the Constitution.”

To date, there have been thousands of proposed amendments to the Constitution. However, only 17 amendments have been ratified in addition to the Bill of Rights because the process isn’t easy–after a proposed amendment makes it through Congress, it must be ratified by three-fourths of the states. The most recent amendment to the Constitution, Article XXVII, which deals with congressional pay raises, was proposed in 1789 and ratified in 1992.

The Constitution Today

In the more than 200 years since the Constitution was created, America has stretched across an entire continent and its population and economy have expanded more than the document’s framers likely ever could have envisioned. Through all the changes, the Constitution has endured and adapted.

The framers knew it wasn’t a perfect document. However, as Benjamin Franklin said on the closing day of the convention in 1787: “I agree to this Constitution with all its faults, if they are such, because I think a central government is necessary for us… I doubt too whether any other Convention we can obtain may be able to make a better Constitution.” Today, the original Constitution is on display at the National Archives in Washington, D.C. Constitution Day is observed on September 17, to commemorate the date the document was signed.

changing the constitution essay


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Guest Essay

The Constitution Is Broken and Should Not Be Reclaimed

changing the constitution essay

By Ryan D. Doerfler and Samuel Moyn

Dr. Doerfler and Dr. Moyn teach law at Harvard and Yale.

When liberals lose in the Supreme Court — as they increasingly have over the past half-century — they usually say that the justices got the Constitution wrong. But struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution , as many would have it, but instead to reclaim America from constitutionalism.

The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day. Our Constitution’s guarantee of two senators to each state is an example. And ever since the American founders were forced to add a Bill of Rights to get their handiwork passed, national constitutions have been associated with some set of basic freedoms and values that transient majorities might otherwise trample.

But constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now. This aids the right, which insists on sticking with what it claims to be the original meaning of the past.

Arming for war over the Constitution concedes in advance that the left must translate its politics into something consistent with the past. But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.

In making calls to regain ownership of our founding charter, progressives have disagreed about strategy and tactics more than about this crucial goal. Proposals to increase the number of justices, strip the Supreme Court’s jurisdiction to invalidate federal law or otherwise soften the blow of judicial review frequently come together with the assurance that the problem is not the Constitution; only the Supreme Court’s hijacking of it is. And even when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism.

Since the Supreme Court began to drift right in the 1970s, liberals have proposed better ways of reading the Constitution . The conservative Federalist Society engaged in a successful attempt to remake constitutional law by brainstorming ideas, creating networks of potential judges and eventually helping to guide the selection of President Donald Trump’s nominees. It was revealing that liberals responded by founding (in 2001) an organization called the American Constitution Society, which produced the book “ Keeping Faith With the Constitution .” And when liberal law professors got together in the mid-2000s to dream of a different America, that yielded the book “ The Constitution in 2020 .” But since then — with the death of Ruth Bader Ginsburg, the consolidation of right-wing control of constitutional law and the overturning of Roe and other disasters this term — the damage has only worsened.

One reason for these woeful outcomes is that our current Constitution is inadequate, which is why it serves reactionaries so well. Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change while drawing on much vaguer and more malleable resources like commitments to due process and equal protection — resources that a conservative Supreme Court has used over the years to invalidate things like abortion rights and child labor laws and might use in the coming term to prohibit affirmative action .

Sometimes reclaiming the Constitution is presented as a much-needed step toward empowering the people and their elected representatives. In a new book, the law professors Joseph Fishkin and William Forbath urge progressives to stop treating constitutional law as an “autonomous” domain, “separate from politics.” In contrast with earlier efforts among liberals, which, as Jedediah Purdy put it in a 2018 Times guest essay, put forward a “vivid picture of what judges should do with the power of the courts,” such exercises in progressive constitutionalism call on Congress and other nonjudicial actors to claim some amount of authority to interpret the Constitution for themselves.

It is a breath of fresh air to witness progressives offering bold new proposals to reform courts and shift power to elected officials. But even such proposals raise the question: Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? It has exacted a terrible price in distortion and distraction to transform our national life into a contest over reinterpreting our founding charter consistently with what majorities believe now.

No matter how openly political it may purport to be, reclaiming the Constitution remains a kind of antipolitics. It requires the substitution of claims about the best reading of some centuries-old text or about promises said to be already in our traditions for direct arguments about what fairness or justice demands.

It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.

By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future.

After failing to get the Constitution interpreted in an egalitarian way for so long, the way to seek real freedom will be to use procedures consistent with popular rule. It will not be easy, but a new way of fighting within American democracy must start with a more open politics of altering our fundamental law, perhaps in the first place by making the Constitution more amendable than it is now.

In a second stage, though, Americans could learn simply to do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past. If legislatures just passed rules and protected values majorities believe in, the distinction between “higher law” and everyday politics effectively disappears.

One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.

More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “ council of revision ” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.

In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review. Fundamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will. And the basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by the present electorate, as opposed to one from some foggy past.

A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way.

Ryan D. Doerfler of Harvard and Samuel Moyn of Yale are law professors .

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow The New York Times Opinion section on Facebook , Twitter (@NYTopinion) and Instagram .

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The Constitution of The United States

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Published: Jan 4, 2019

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changing the constitution essay

America's Founding Documents

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The Constitution: How Did it Happen?

Concern about the articles of confederation.

Just a few years after the Revolutionary War, James Madison, Alexander Hamilton, and George Washington feared their young country was on the brink of collapse. America’s first constitution, the Articles of Confederation, gave the Confederation Congress the power to make rules and request funds from the states, but it had no enforcement powers, couldn’t regulate commerce, or print money. The states’ disputes over territory, war pensions, taxation, and trade threatened to tear the young country apart. Alexander Hamilton helped convince Congress to organize a Grand Convention of state delegates to work on revising the Articles of Confederation.

refer to caption

Washington as Statesman at the Constitutional Convention, 1856

Oil on canvas by Junius Brutus Steams. Courtesy of the Virginia Museum of Fine Arts

The Constitutional Convention

The Constitutional Convention assembled in Philadelphia in May of 1787. The delegates shuttered the windows of the State House and swore secrecy so they could speak freely. Although they had gathered to revise the Articles of Confederation, by mid-June they had decided to completely redesign the government. There was little agreement about what form it would take.

One of the fiercest arguments was over congressional representation—should it be based on population or divided equally among the states? The framers compromised by giving each state one representative for every 30,000 people in the House of Representatives and two representatives in the Senate. They agreed to count enslaved Africans as three-fifths of a person. Slavery itself was a thorny question that threatened to derail the Union. It was temporarily resolved when the delegates agreed that the slave trade could continue until 1808.

Writing the Constitution

After three hot summer months of equally heated debate, the delegates appointed a Committee of Detail to put its decisions in writing. Near the end of the convention, a Committee of Style and Arrangement kneaded it into its final form, condensing 23 articles into seven in less than four days.

On September 17, 1787, 38 delegates signed the Constitution. George Reed signed for John Dickinson of Delaware, who was absent, bringing the total number of signatures to 39. It was an extraordinary achievement. Tasked with revising the existing government, the delegates came up with a completely new one. Wary about centralized power and loyal to their states, they created a powerful central government. Representing wildly different interests and views, they crafted compromises. It stands today as one of the longest-lived and most emulated constitutions in the world.


The founders set the terms for ratifying the Constitution. They bypassed the state legislatures, reasoning that their members would be reluctant to give up power to a national government. Instead, they called for special ratifying conventions in each state. Ratification by 9 of the 13 states enacted the new government. But at the time, only 6 of 13 states reported a pro-Constitution majority.

The Federalists, who believed that a strong central government was necessary to face the nation’s challenges, needed to convert at least three states. The Anti-Federalists fought hard against the Constitution because it created a powerful central government that reminded them of the one they had just overthrown, and it lacked a bill of rights.

The ratification campaign was a nail-biter. The tide turned in Massachusetts, where the “vote now, amend later” compromise helped secure victory in that state and eventually in the final holdouts.

What Does it Say? How Was it Made?

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Should we amend the Constitution?

Amending the 1987 Constitution is the most important and most contentious change this country will face under President Duterte. It needs to be done with the utmost care.

The Constitution is reactionary in that it was developed in reaction to the excesses of the Marcos regime, and at a time when redeveloping a national identity overrode a need for balance. Consequently, it ended up far too detailed when general policy and ideology are what a charter calls for.

Should we amend the Constitution? Definitely, yes. I’d much prefer that a constitutional convention (Con-con) be formed. Like most of us, I don’t trust a constitutional assembly (Con-ass) to be entirely independent of self-interest. The six-year term that congressmen have said they want is an early indication of why using a Con-ass to amend the Constitution puts what’s best for the rest of us at risk. Mr. Duterte’s appointment of a consultative committee led by the highly esteemed former chief justice Reynato Puno with diverse, and it seems independent, members is a reasonable compromise, and should be hugely influential on the Con-ass outcome. Change in the Constitution is so important, so fundamental, to the nation that any amendment must be done with cold reason, dispassion, and detachment. The cost and time to do it are irrelevant. Doing it the right way must dominate.

A Con-ass (if that still continues, as I suspect it will) should be required to accept the committee’s recommendations, unless there is very strong reason, supported by independent surveys (which should be done on key issues such as the form of government, and by trustworthy survey firms SWS and Pulse Asia) that show the people want something different. A constitution is of the people, by the people, and for the people. This must never be forgotten. It is not of politicians, by politicians, and for politicians.

The first issue to be decided is: Should a Con-ass comprise the two chambers voting separately, or unified with the Senate swamped by the House of Representatives? Any sensible, thinking person knows it’s meant to be separate. It was the intent of the Constitutional Commission of 1986, but sloppy editing didn’t pick up the last-minute shift to a two-chamber Congress. Voting as a single body swamps the Senate; it becomes irrelevant. The Constitution doesn’t consider the Senate irrelevant.

It shouldn’t even be an issue, not because of the obviousness of this fact, but because it highlights why the Constitution should be reviewed by a Con-con (although knowing how things work in this country, electing truly independent representatives would be a major task in itself), not a Con-ass. You need people truly independent and uninvolved in the main issues to be decided upon. How, for instance, can you ask politicians to ban dynasties when they come from one? Assuming you do want to ban dynasties, that’s something that needs deeper reflection. We don’t ban them in business, and many (not all) of those businesses thrive.

The matter of political dynasties may just need certain limitations. For instance, there should be only two people from an extended family in a political position at one time—one national, one local. That’s exactly the sort of thing a Con-con could explore. A Con-ass probably won’t even try, as Congress’ 31 years of not acting on the constitutional dictate to ban dynasties shows. We may not want longer terms, but politicians want long ones—doubtless even for life, if they could get away with it. And so on. The conflict of interest is just too high.

A new constitution must also consider the future. Some of the failings of the 1987 Constitution are that the world has changed and the terms set then are no longer applicable. The restriction on foreign investments is a prime case. A constitution should set the general—and I stress general—policies, philosophy, and ideology of a people. Specifics should be set by law, a law that can change as circumstances change. A constitution is the lifeblood of a nation. You don’t change a constitution to suit a particular moment; you do it to set the foundation of a society—for a hundred years.

Read my previous columns: Email: [email protected]

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