“We, the people.” It is a very eloquent beginning. But when the document was completed on the seventeenth of September 1787 I was not included in that “We, the people.” I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation and court decision I have finally been included in “We, the people.”
—Rep. Barbara Jordan, July 25, 1974.
Amendments made it possible for Barbara Jordan, a Black woman from Texas, to join Congress more than a century after the Thirteenth Amendment abolished slavery. But the rigid requirements of Article V, which describes the amendment process, created major hurdles to every amendment that moved the U.S. Constitution toward the inclusion of Black people and women as full citizens. The validity of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments under Article V was deeply contested. Yet, the principles guaranteed by those amendments—the abolition of slavery, equal protection of the laws, and voting rights for previously disfranchised African Americans and women—are now fundamental to the legitimacy of American constitutional democracy.We imagined a new constitution for the United States against the backdrop of Black Lives Matter and the death of Justice Ruth Bader Ginsburg—our nation’s most significant jurist of women’s rights—which consolidated a new conservative majority on a powerful Supreme Court. As we deliberated, a white supremacist insurrection at the nation’s Capitol exposed the fragility of our democracy. A renewed push to add the Equal Rights Amendment to the Constitution notwithstanding prior time limits succeeded in the House, as did a landmark voting rights bill. But legislative paralysis due to the Senate filibuster rule endangers the future of these efforts at inclusive democracy. The Constitution of 1787, even with later amendments toward inclusion, leaves the twenty-first century project of inclusive democracy uncertain.Repairing the existential threat to American democracy under the existing Constitution is nearly impossible. Article V makes the U.S. Constitution exceptionally difficult to amend, and it excludes the people from the process. Most state constitutions and constitutions of peer democracies around the world reserve a role for the people themselves in changing the Constitution. But Article V leaves constitutional amendment solely to Congress and the states. The American people do not amend by deliberative assemblies, ballot initiatives, or voter referenda. Two thirds of both houses of Congress must approve an amendment, under circumstances where the Senate is grossly unrepresentative of the people because sparsely populated states have the same number of senators as abundantly populated ones. Furthermore, Article V gives every single state veto power over any proposal to change that equal representation in the Senate. And, for amendment proposals, the state legislatures of 13 states can stop any of them by not ratifying, essentially giving veto power to the former slaveholding states.That’s why our new amendment rule, Article VIII, is the single most important provision we crafted to make our constitution fit for our diverse twenty-first-century democracy. Our amendment rule democratizes the process of changing the constitution in several important ways. First, it allows Congress, by a simple majority rather than two-thirds, to propose an amendment. Second, it requires Congress to reaffirm the proposal by a simple majority after an intervening election, thereby allowing voters to weigh in on the amendment. Third, ratification is achieved by the voters in a national referendum rather than by state legislatures. By removing supermajority thresholds and creating opportunities for people to vote, the amendment rule protects popular will formation by democratic majorities and deprives minorities of veto power over constitutional change.
At the same time, making the constitution easier for majorities to change raises concerns about whether majorities will neglect the rights of minorities who lack power in the political process. Thus, if Congress proposes any amendment that abridges rights, the new amendment rule triggers a citizens’ assembly procedure. We examined the citizens’ assemblies that were convened to draft a new constitution in Iceland, and to craft amendment proposals on controversial topics like abortion, same-sex marriage, and gender equality in Ireland. The citizens’ assembly proposed in our new amendment rule will be composed of two-thirds randomly selected citizens and one-third randomly selected members of Congress. Like randomly selected citizens that form juries for court proceedings, randomly selected citizens are more likely to share the experiences of a broad cross-section of ordinary people, to supplement the intuitions of politicians with the resources and confidence to campaign and win elections. Under the amendment rule, the citizens’ assembly will vote on amendment proposals, and those agreed to by two-thirds must then proceed to a majority vote by Congress. Ratification can occur by three-fourths of the state legislatures or by a referendum vote of a 60 percent majority of the people. Citizens’ assemblies that combine randomly selected citizens as well as randomly selected elected lawmakers, and referenda by which voters can approve the amendment, empower the people to shape the constitution at multiple stages of the process. At the same time, the proportion of randomly selected members of Congress in the assembly reduces the risk that amendment proposals will be products of populist extremism.Reasonable minds could disagree on whether any given amendment proposal abridges a constitutionally protected right, since the exercise of some people’s rights could always be affected in some way by any change in law. Our amendment rule leaves it to Congress, rather than to courts, to decide whether any proposal abridges rights and should therefore be subject to the citizens’ assembly amendment process.Two centuries of Marbury v. Madison have exposed the dangers of empowering an unelected life-tenured judiciary with supremacy over Congress in interpreting the Constitution. The devastating effects of the COVID-19 pandemic point to the crucial importance of Congress’s national lawmaking authority to promote the general welfare, which has come under threat by the current Supreme Court’s narrow interpretations of Congress’s enumerated powers. Thus, from the amendment process to the implementation of constitutional rights, our constitution designates Congress (newly designed to be more representative) as a primary interpreter of the document. It constrains the ability of courts, including the Supreme Court, to invalidate acts of Congress on grounds of unconstitutionality, requiring a supermajority of justices and opportunities for congressional response and override. In twenty-first century democracies, human rights are not only shields against governmental intrusion; they are also shared values that are actualized through governmental action on behalf of the people. That vision of rights requires legislative leadership in dialogue with courts, and a functioning amendment process. We expect our democratic reform of constitutional amendment and the limitations on judicial review to catalyze that dialogue.Shirley Chisholm, the first Black woman ever elected to Congress, said in 1970, “[T]here were no Black Founding Fathers, there were no founding mothers—a great pity, on both counts. It is not too late to complete the work they left undone.” Fifty years later, a constitution open to real change, toward inclusion and democracy, is long overdue.