Why Haven't We Passed any Constitutional Amendments Lately?

See also Wake Up, You’ve Been Asleep for 50 Years, and Book Review: Why We’re Polarized.

Up until 1971, we were proposing and passing new amendments at a pretty steady rate:

The current drought is our longest since 1865, when a 62 year streak ended with the passage of the 13th amendment banning slavery.

There was a 27th amendment, completed in 1992, but it was proposed in 1789, and is a fairly minor issue relating to Congressional salaries.

More broadly, there’s even stagnation in terms of each amendment’s scope. Consider the section headings from Wikipedia:

This isn’t strictly chronological, but it’s close. We went from safeguards of liberty and justice (very important!) to banning slavery, discrimination and guaranteeing suffrage (also very important!) to minor issues related to processes and procedures.

The 25th amendment is just a clarification of succession rules in case the President dies, and the 27th is about congressional salaries. The 26th amendment lowers the voting age from 21 to 18, which is nice, but not nearly as big a deal as extending suffrage to women with the 19th.

And it’s not that no one is trying! There have been many proposed amendments since 1971, so it’s not for lack of want. Some of these are silly, but others are incredibly serious (repealing the penal exception clause from the Thirteenth Amendment [1]).

How does a constitutional amendment get passed? To play at Schoolhouse Rock for a second:

Proposal

  • Get a 2/3rd vote in the Senate AND Get a 2/3rd vote in Congress, OR
  • 2/3rd of state legislatures call for a national convention (this never happens)

Completion

In short, the bar is very high! These rules are enshrined in Article V of the US constitution, and are unlikely to change.

From Wikipedia, here is a beautiful chart of Senate/House control:

The last time either party had a 66% majority was:

  • House: 95th Congress (77 --79), Democrats had 292/435 seats, for a 67% majority.
  • Senate: 89th Congress (65 – 67), Democrats had a 68% majority.

So how did the 26th Amendment get passed in 1971? It had overwhelming bipartisan support. The Senate voted 94 to 0, and the House voted 401 to 19.

The 24th (banning poll taxes), was a bit more controversial, but still won the Senate 77–16 and the House 295 to 86.

Our failure to propose and ratify a constitutional amendment since 1971 is not about rules, or about party majority. As far as I can tell, it’s just the result of polarization.

Scott Alexander’s review of Ezra Klein’s Why We’re Polarized opens:

In 1976, three years after Roe v. Wade, Democrats and Republicans were about equally likely to support abortion restrictions. That same year, a poll found that “only 54% of the electorate believed that the Republican Party was more conservative than the Democratic Party”; 30% thought there was no difference.

VoteView, Gallup and Vox (citing Vote View) provide some nice charts, all suggesting that yes, around 1970 – 1980, polarization took off:

I don’t know how seriously to take these. If you look more closely at the VoteView charts, you can see that I’ve cherry picked the extreme examples. In fact, on Regional/Social issues there actually seems to be a convergence starting around the same 1970 – 1980 period:

And of course, these are all important metrics, but don’t necessarily capture what you’re thinking about when you hear the word “polarization”. Scott’s post ends with a low confidence guess that Congress polarized in 1975 as a delayed reaction to 1960s civil rights, and normal people didn’t polarize until around 2000. He finishes by saying:

Every so often, people ask what an effective altruism of politics would look like. If you had some limited number of resources, and you wanted to improve (US) politics as much as possible so that the government made better decisions and better served its populace, what would you do? Why We’re Polarized and the rest of Klein’s oeuvre make a strong case that you would try to do something about polarization. Solve that, and a lot of the political pathologies of the past few decades disappear, and the country gets back on track.

On one hand, polarization seems obviously bad. You can’t get anything done without consensus, and we fall prey to zero-sum politics. I idolize the 1960s as much as anyone else, and it seems like some pieces of American were working then that don’t work anymore.

But also: Leopold Aschenbrenner’s description of European (particularly German) politics does not make the situation seem altogether enviable. Scott shares this graph from Vox, confirming that Germany really has seen a drop in polarization:

Low polarization is not all roses and harmony. As Leopold explains:

On the surface, German conventional wisdom decries the political divisions in the U.S.; it trumpets the supposed moral superiority of the German way over the American health care system or American foreign policy; it holds German democracy to be infinitely superior to American democracy (which, if you believe German media coverage, is on the verge of collapse and paralleled only by the Weimar Republic in 1933). But what this arrogance masks—and perhaps is deliberately intended to obscure—is the underlying reality of European “politics”: namely, that it is bereft of politics.

For the German voter has basically no say over his country’s fate. Sure, he may cast a vote in an election for parliament. But in the end, the same centrist parties seem to hold a majority in parliament, the same centrist parties form a coalition government, and the same party leaders remain in charge, making policy mostly through backroom deals rubber-stamped by the parliament. Besides relatively minor policy tweaks, the elections don’t seem to matter much.

I end up feeling lukewarm about all of this. I’m not sure why polarization happened, how clear cut it is, or if it’s even bad.

But I do know there’s a pressing need for progress, and many important human rights not yet enshrined in the constitution. Unless either party gains a 66% majority in both House and Senate simultaneously, our only hope is bipartisan agreement.

Appendix: We Should Ban Penal Labor

An alternative answer to this whole post is “we don’t pass amendments anymore because we already got all the important ones.”

I don’t buy it.

Penal labor is outside the scope of the main post, but really is horrendous. In short: the 13th Amendment banned slavery… unless you’ve committed a crime. From Wikipedia:

  • “base pay being as low as 60 cents per day”
  • “The state fire agency, California Department of Forestry and Fire Protection (CAL FIRE), mobilized over 11,000 firefighters in response, of which 1,500 were prisoners of minimum security conservation camps”
  • “A wide variety of companies such as Whole Foods, McDonald’s, Target, IBM, Texas Instruments, Boeing, Nordstrom, Intel, Wal-Mart, Victoria’s Secret, Aramark, AT&T, BP, Starbucks, Microsoft, Nike, Honda, Macy’s and Sprint and many more actively participated in prison in-sourcing”

The pay isn’t $0, so maybe by some technical definition this isn’t slavery, but it is clearly wrong.

It’s hard to tell exactly how many prisoners are subject to penal labor. A Bureau of Justice Statistics report writes “More than half (54%) of all inmates held in facilities (88%) that operated work programs had work assignments at year end”

There are 2.3 million people in the criminal justice system, which multiplies out to 1.1 million in work programs. According to one estimate overall average salaries are around $0.14 to $0.63 an hour.

This is subject to a few caveats. If you have a job in a state-owned business, the estimate rises to $0.33 to $1.41 an hour, but those only constitute 6% of jobs. I also don’t think the average is weighted by population.

But none of that really matters. The wages are so incredibly low, and I feel confident condemning the practice.

This is much worse than “prisoners are poorly paid”. To take a slightly conspiratorial view, it is bad to let large companies profit from prison labor for the same reason it is bad to allow war profiteering. The more we benefit from an unfair system, the less incentive there will be to amend it.

[Edit 2021/02/17] It turns out this is not even conspiratorial, it is explicitly acknowledged. From Vox:

Harris’s office fought to release fewer prisoners, even after the US Supreme Court found that overcrowding in California prisons was so bad that it amounted to unconstitutional cruel and unusual punishment. At one point, her lawyers argued that the state couldn’t release some prisoners because it would deplete its pool for prison labor — but Harris quickly clarified that she was not aware her office was going with that argument until it was reported by media. [empahsis mine]

Obama’s famous A More Perfect Union speech opens:

The document they produced was eventually signed but ultimately unfinished. It was stained by this nation’s original sin of slavery, a question that divided the colonies and brought the convention to a stalemate until the founders chose to allow the slave trade to continue for at least 20 more years, and to leave any final resolution to future generations.

We are in the same position today. As great as the Thirteenth Amendment was, it also enshrines an exception to slavery. It is incumbent on us to fix it.

Or as Kanye succinctly tweeted: “the 13th Amendment is slavery in disguise”.