Stephen Sachs

Many analysts and citizens believe that the Constitution, more than 230 years old, is out of touch with contemporary America. We asked the scholars Danielle…

An op-ed by Stephen Sachs: Our Constitution was meant to be amended, but our process for fixing it is broken. Americans haven’t proposed and ratified a new amendment for half a century — the longest gap since the Civil War. And with so few amendments, the pressure for change falls on judges, encouraging courts to get creative (and political). New amendments need a two-thirds vote in both the House and the Senate, a high bar in a polarized Congress. If a proposal fails that test, we never find out if three-fourths of the states would have ratified it. Lowering these thresholds might produce more amendments. But it would also produce more controversial ones, because a lower threshold lets narrower majorities rewrite our fundamental laws. Instead, we could keep the thresholds but flip their order, letting the states go first. With this alternative, a new amendment proposal could advance one state legislature at a time. Once three-fourths of states had endorsed it, working out disagreements along the way, the proposal would go to Congress for ratification. The approval of two-thirds of each chamber might then be easier to come by, with both blue and red states already having signed on.