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The Virginia House of Delegates ratifies the Equal Rights Amendment on January 15, 2020. Under the U.S. Constitution’s Article V, the ERA fell three states short.
Article V Curse

The Oft-Neglected Enemy of Democracy: Article V

Alas, we can’t fix this democracy without amending the U.S. Constitution. The process for that is almost impossible.

The Virginia House of Delegates ratifies the Equal Rights Amendment on January 15, 2020. Under the U.S. Constitution’s Article V, the ERA fell three states short.

The United States is unlikely to be the multicultural liberal democracy that many of us want it to be by 2050, for the same reason that it falls short of that ideal today: The opponents of multicultural liberal democracy exercise disproportionate power in at least two of our most powerful institutions, the Supreme Court and the Senate, and will likely continue to do so for the foreseeable future. Six life-tenured justices on the Supreme Court ended women’s access to safe and legal abortion in June. Within the year, the Supreme Court will likely end affirmative action programs that promote racial minorities’ access to higher education. It also appears poised to validate state election maps that dilute the votes of racial minorities. And even though Congress can legislate to protect abortion access and racial minorities’ voting rights, the Senate has blocked those measures. By 2050, our increasingly multicultural society will be more thoroughly shackled by laws emanating from these unrepresentative bodies.

Minority rule by the Supreme Court and the Senate is a product of our constitutional design. Unless these institutions are reformed to distribute power more evenly to allow the American people to exercise power proportionately, multicultural liberal democracy will remain elusive. A crisis of legitimacy now plagues the Supreme Court, not only because of its most recent decisions, but because of how the audacious new majority was formed. The combination of untimely judicial deaths and Senate political hardball produced a court majority that is reversing the precedents that enabled the fuller participation of women and minorities in the life of the nation. If the justices had term limits, or if the Senate equally represented the American people rather than the states, we could be on a path to multicultural liberal democracy by 2050. But these changes would require amending the Constitution. And unfortunately, the U.S. Constitution has been functionally unamendable for about 50 years.

Article V, the constitutional provision that lays out the amendment process, requires two-thirds of both houses of Congress to adopt an amendment, followed by ratification by three-fourths of the states. Regardless of what was plausible in the eighteenth, nineteenth, and twentieth centuries, we have not had a constitutional amendment since 1992. And that amendment—prohibiting salary increases that Congress gives itself from going into effect until after the next election—was proposed by two-thirds of Congress in 1789, centuries before it became impossible to imagine two-thirds of both houses of Congress agreeing to anything.

The last time both houses of Congress adopted a constitutional amendment by two-thirds vote was in 1978. But that amendment—proposing to give the people of the District of Columbia representation and voting power in Congress—did not come close to the 38 ratifications by states required by Article V. The Equal Rights Amendment—guaranteeing sex equality, as most constitutions around the world do—was adopted by two-thirds of both houses of Congress in 1971–72. It got 35 state ratifications in the next five years, which is a healthy supermajority of the nation that included heavily populated states like California, New York, and Texas. But 35 is three short of 38. Three additional states ratified the ERA in recent years, decades after the time limit imposed by Congress, and two of those states are litigating in an uphill battle to get the judiciary to declare the amendment ratified. These failed amendments—giving D.C. voting power in Congress and empowering women with equal rights—illustrate how difficult Article V makes it not only to amend the Constitution generally, but specifically to amend it to rebalance power.

There is no legislative chamber in any democracy in the world that is as powerful and as unrepresentative as the U.S. Senate, which has two representatives from every state regardless of population and allows a minority filibuster to block legislation passed by the more representative chamber. California’s population is nearly 70 times the size of Wyoming’s, but the people of California get the same number of votes in the Senate as the people of Wyoming. This unrepresentative body has exclusive constitutional power to approve the president’s life-tenured appointments to the judiciary, including the Supreme Court. The Constitution empowers the Senate to make its own rules (hence the filibuster) and requires bills to be adopted by the Senate in order to become law. The Senate has blocked legislation on abortion access, equal pay, pregnant worker fairness, and voting rights that the House has passed.

The Senate’s over-empowerment of voters in underpopulated states cannot even be changed through the ordinary constitutional amendment process, because Article V provides that the “equal suffrage” of the states in the Senate cannot be changed without the consent of every single state whose equal representation would be deprived. Given that no state would agree to reducing its share of power, there is virtually no politically feasible means by which the egregiously undemocratic design of our political and legal institutions can be amended under the rules of the existing Constitution.

There are two options for those who are committed to multicultural liberal democracy in America. The first is denial. Knowing that what is broken cannot be fixed, human beings naturally cope by persuading themselves that it’s not really broken after all. Since Article V makes it functionally impossible to fix the Constitution, many will be inclined to muddle through to 2050 and beyond, hoping that electoral politics, albeit with unevenly protected voting rights and the undemocratic Electoral College, will produce liberal presidents and new majorities in the Senate who can appoint new justices (upon the death of the ones now sitting) who will eventually stop the current scourge on the lives of women and racial minorities.

The other option is constitutional revolution—a new constitution written without following the amendment rules of the eighteenth-century Constitution we now live under. We should be reminded that the Founding Fathers who adopted and ratified the 1787 Constitution chose not to follow the amendment rules of the Articles of Confederation. Without Article V, is there a different procedure that Americans would choose collectively, by which a new constitution, fit to govern all of us in the twenty-first century, could be adopted? If this country is too big to reach agreement on that or other constitutional essentials, could healthier democracies emerge from peacefully negotiated secessions? If young people are required to contemplate these questions together in their civics classes between now and 2050, that would be a small beginning for a way out of the current shackles.