Amending the Constitution

 Why Is It Nearly Impossible to Amend the U.S. Constitution? 5 Hidden Truths

Every four years, Americans are reminded that the winner of the popular vote may not win the presidency, sparking renewed calls to abolish the Electoral College. Yet like clockwork, the proposal vanishes, hitting the same constitutional wall that has stood for over two centuries. Whether the subject is electoral reform, gun rights, or the role of money in politics, citizens and politicians alike frequently propose altering the nation’s foundational document, yet for all this debate, the Constitution remains remarkably resistant to change. Written in the 18th century, it has been successfully amended only 27 times, with ten of those—the Bill of Rights—ratified shortly after the Constitution itself.

Why has this document, conceived in a world of quill pens and horse-drawn carriages, proven so difficult to formally change? The conventional answer is that the framers made it difficult on purpose to ensure stability. While true, this is only a fraction of the story. The history of constitutional amendment in America is more complex and far more surprising than most people realize. It is a story not only of a federal document that has become nearly unchangeable but also of a vibrant, forgotten tradition of popular revision at the state level, and of a judiciary that has stepped in to do the work that the amendment process, Article V, no longer can.

This article explores five key insights into this process, drawing on historical records to reveal a hidden history of how Americans have thought about, fought over, and changed their most fundamental laws.

1. It Was Built to Be Difficult, But Not a Fortress

The formal process for amending the Constitution, outlined in Article V, is intentionally arduous. As designed by the framers at the Constitutional Convention, an amendment must be proposed by two-thirds of both the House and the Senate (or by a convention called for by two-thirds of the state legislatures) and then must be ratified by three-fourths of the states. This high bar was meant to prevent frivolous changes and ensure that any amendment had broad national support.

The framers sought stability, but they did not see their work as sacred or untouchable. Thomas Jefferson, in particular, was adamant that constitutions must evolve. He believed each generation had a right to remake its government to suit its own needs and experiences.

“Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched,” an aging Thomas Jefferson lamented in 1816... “They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”

Jefferson argued that “laws and institutions must go hand in hand with the progress of the human mind.” The founders expected future generations to make "new discoveries" and for "manners and opinions" to change. In the modern era, however, the process has become so formidable that what was once a high hurdle now feels, in the words of legal scholar and judge Robert Bork, like a "constitutional barricade." This reflects a central tension in American constitutionalism: a framework designed for both endurance and adaptation has, over time, leaned almost entirely toward the former, freezing a process the founders expected to be difficult, but not impossible.

2. Americans Actually Love Amending Constitutions—Just Not the Federal One

While the U.S. Constitution has been amended just 27 times, constitutional revision has been a dynamic and routine feature of American political life at the state level. The data reveals a stark contrast: since 1776, the states have adopted 144 different constitutions and held approximately 250 constitutional conventions.

Throughout the 19th century, a culture of permanent constitutional revision swept the nation. State constitutional conventions were common occurrences, often convened to make government more democratic by expanding suffrage or altering the balance of power. This culture of revision thrived at the state level partly because state constitutions were born of immediate necessity and viewed as experimental, in contrast to the federal Constitution, which was a grand and hard-won compromise among thirteen sovereign entities. This state-level dynamism was rooted in the belief that the people were sovereign and had an inalienable right to alter their government. As one delegate to Ohio’s 1850 constitutional convention argued, it was a duty to leave the organic law “open to change, that it never can become anything else than the free, voluntary consent of the people.”

The same citizens who regularly rewrote their state charters rarely managed to alter their federal one. Interestingly, this era of state-level revision has also ground to a halt; no state has held a constitutional convention since 1986. This stagnation at the state level suggests that the "constitutional barricade" is not merely a federal phenomenon but a broader feature of modern American political life. Still, the historical record is clear: for most of their history, Americans have not been allergic to constitutional change but have instead been among its most enthusiastic practitioners.

3. When Amendments Fail, the Supreme Court Steps In

The extreme difficulty of using the formal Article V process has had a profound consequence: it has shifted the primary venue for constitutional change from the legislature and the states to the judiciary. When the people cannot amend the Constitution, the Supreme Court effectively does it for them through interpretation.

The increasing paralysis of Article V created a vacuum in the theory of constitutional change. Originalism emerged to fill that void, arguing that if the document could not be formally changed by the people, its meaning must be permanently fixed by the dead. Originalists argue that the Constitution’s meaning is fixed and should be determined by the intent or understanding of its 18th-century framers. As Justice Clarence Thomas stated, "The Constitution means what the delegates... understood it to mean, not what we judges think it should mean." This approach seeks to restrain judicial power and posits that the only legitimate method of change is formal amendment.

However, the Supreme Court has often taken a different path. In the landmark 1954 case Brown v. Board of Education, which declared segregation in public schools unconstitutional, Chief Justice Earl Warren explicitly rejected a purely historical interpretation. He argued that the Court could not be bound by the social realities of the 19th century.

“In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy vs. Ferguson was written,” Warren said. “We must consider public education in the light of its full development and its present place in American life throughout the nation.”

This was not a new phenomenon. The New Deal era also produced a "constitutional revolution" as the Court reinterpreted federal power to allow for President Franklin D. Roosevelt's sweeping economic programs. This shift was so dramatic that legal scholar Bruce Ackerman later asked, "Who killed Article Five?... the Supreme Court." The Court, by adapting the Constitution through new interpretations, had effectively sidelined the formal amendment process.

4. The Founders Didn't Want You to Worship Them

A central irony of modern constitutional debate is that the very people the originalists claim to venerate—the framers themselves—rejected the core tenets of originalism. The founders were revolutionaries and innovators, deeply skeptical of blind deference to the past.

In 1787, as the Constitution was being debated, a young James Madison celebrated the fact that Americans had “not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense.” He saw it as a point of national glory that his generation relied on its own experience and knowledge rather than on the opinions of former times.

Later in his life, Madison, the chief record-keeper of the Constitutional Convention, was even more direct. He argued that the debates and intentions of the delegates held no special authority in interpreting the document they created. “Whatever veneration might be entertained for the body of men who formed our Constitution,” he said, “the sense of that body could never be regarded as the oracular guide in expounding the Constitution.” This is a stunning refutation of originalism from the man often called the "Father of the Constitution." The framers did not believe their private conversations or provisional intentions should bind future generations; they believed the Constitution’s meaning should be found in its text and the principles it embodied.

Conclusion: A Constitution for the Living?

The story of the U.S. Constitution's evolution is not one of stasis, but of change through channels the framers may not have fully anticipated. The founders, as we've seen, created a difficult but not impossible amendment process (Point 1), a fact underscored by the vibrant, now-lost tradition of state-level revision (Point 2). The freezing of that federal process didn't stop constitutional change; it merely shifted its battlefield to the Supreme Court (Point 3), leading to the rise of an originalism that ironically defies the founders' own explicit warnings against ancestor-worship (Point 4). While the formal amendment process of Article V has become a near-impenetrable fortress, the document itself has been profoundly altered through the persistent push and pull of judicial interpretation and political struggle.

Revisiting Jefferson's vision, we are left with a vital question about our own time. He believed that for a constitution to endure, it must keep pace with "the progress of the human mind." For most of American history, this progress was achieved through both formal amendment at the state level and transformative judicial rulings at the federal level. Today, with the formal process stalled and the judiciary locked in a debate over its own role, the path forward is less clear. This leads to a final, sobering question, one posed by Abraham Lincoln in response to the Dred Scott decision: If the Constitution is no longer amendable by the people through Article V, have "We the People," as Lincoln warned, "ceased to be their own rulers"?