Legal Commentary

Carlton started a great discussion asking what the next constitutional amendment will be and has gotten a few good responses so far. I tend to think that any new amendment will be structural rather than rights-creating. But one of the comments, talking about the chances of dumping the Electoral College, suggested that if the 2000 debacle did not prompt a serious amendment move, it is hard to see what will. Indeed, the Electoral College reform efforts post-2000 have been all about ways to get to the functional equivalent of nationwide popular election without a constitutional amendment.

So this got me thinking: What has to happen to prompt a serious and successful move for a constitutional amendment, particularly a structural one? Let me suggest some considerations that, historically, appear to play into the mix, in some combination.

1) A signal event that triggers the particular structural rules and makes their defects clear. And it has to be a stark event--it took the Kennedy assassination to finally get people to create a mechanism to handle presidential disabilities and vice-presidential vacancies. I have worked with the Continuity of Government Commission that Carlton mentions in his post and saw first-hand the absolute inertia that set-in around any proposal that involved constitutional amendment. It seems pretty clear that United 93 was headed for the Capitol on 9/11. But it did not get there, so the stark event did not occur; its prospect does not seem to be enough to really start the amendment mechanism.

Ethan makes a similar point in talking about California's proposal for district-based awarding of electors, suggesting that such a proposal, if passed would force people to fully grasp the problems with the Electoral College and to shift their focus to a constitutional amendment.

2) The Supreme Court strikes down an attempt to achieve the result through means other than constitutional amendment. Suppose, for example, states establish the interstate compact to require electors to follow the national popular vote in the College and the Supreme Court strikes the compact down (for whatever reason). That might trigger a push for a national-popular vote amendment. Similarly, if the judicial-term-limits advocates succeed in enacting legislation that would functionally limit Supreme Court justices to 18-year-terms and the Court strikes them down, the next move would be an amendment.

3) Time matters. The groundswell for the amendment must be close on the heels of either of the above events. And if the groundswell does not achieve results within a relatively short time (say, a couple of years), nothing is going to happen. Look at the three structural amendments that have made it--the Eleventh Amendment (1795, two years after Chisholm v. George); the Twenty-Second (1952, seven years after FDR was elected and inaugurated for the fourth time); and the Twenty-fifth (1967, four years after Kennedy was assassinated).

That is why, for example, I think we are done with congressional term limits. We already had the Supreme Court decision rejecting the sub-amendment proposal to achieve term limits. And we had a signal event about the term limits issue--in 2006, when scores of GOP members, elected in 1994 on a platform of term limits and with the explicit promise to serve 12 years and leave, decided (surprise!) to run for re-election. And there has not been a meaningful move for an amendment following either event.