History Teaches that Constitutional Reforms Come in Waves. We May Be Approaching One Now.
In U.S. history, previous periods of gridlock and partisanship eventually gave way to bursts of constitutional amendments.
There’s a lot wrong with America’s political system, and lots of debate about ways to fix it — overhauling our broken campaign finance system, for instance, or setting national standards to protect voting rights. Liberals wring their hands over the difficulty of getting legislation on such changes through Congress, citing gridlock and partisanship as reasons those kinds of reforms are doomed. Amending the Constitution seems even more impossible.
But what if the opposite is true? What if it turns out that it’s gridlock and partisanship that open a path for constitutional reform?
We’ve studied the history of the amendments to the U.S. Constitution and found that most of them come in waves after long periods of constitutional inaction. What’s more, those short bursts of activity typically have followed periods of deep division and gridlock like ours. In fact, history suggests that periods of extreme political polarization, when the normal channels of legal change are blocked off due to partisan gridlock and regional divides, can usher in periods of constitutional reform to get the political system functioning again.
What this suggests is that a new round of constitutional revisions might be possible in the not-too-distant future.
Our national charter has been reformed — and its principles renewed — in four waves of constitutional change that occurred during the most turbulent times in American history. The first was from 1789 to 1804, when the founding generation added a dozen amendments in a 15-year period. Chief among them was the Bill of Rights, the first 10 amendments, adopted in a single bundle to reassure skeptics that a strong national government could be tempered with respect for individual liberty. They also adopted the 11th and 12th Amendments that, respectively, limited citizens’ lawsuits against states and fixed some defects in the Electoral College.
Then all was quiet on the constitutional front for 61 years, until after the Civil War. Between 1865 and 1870, Republican lawmakers used six years of supermajority control of Congress to drive a second era of amendments that abolished slavery, promised equal citizenship for 4 million newly freed African Americans and barred racial discrimination in voting. Taken together, these amendments laid a “second founding” for a nation sundered by war. They gave Congress robust new powers to remedy racial injustice while imposing meaningful limits on the excesses of state governments.
And then there was another four decades of polarization and gridlock, marked by the pervasive corruption and vast inequities of the Gilded Age. Eventually, the political pendulum swung and brought a progressive political coalition to power. At the prodding of social movements from the populists to the suffragists to the temperance warriors, lawmakers sought to reverse the extravagance of the previous era. Between 1909 and 1920, Progressive Era reformers added four amendments that authorized the income tax, provided for the popular election of senators, launched Prohibition and extended the franchise to women. The spectacular failure of the nationwide liquor ban notwithstanding (the 21st amendment repealed Prohibition in 1933), these amendments established the foundation for the modern U.S. government.
Finally, a fourth wave, inspired by the political activism of the 1960s’ civil rights era, added three voting rights amendments to the Constitution: presidential electors for the District of Columbia, abolition of the poll tax, and the lowering of the voting age to 18. A fourth amendment, the 25th, updated and clarified the rules of presidential and vice presidential succession amid the doomsday fears of the nuclear age. The last of this wave was the 26th Amendment, the voting age measure, ratified in 1971.
Today, we find ourselves five decades into the latest dry spell. After the defeat of the Equal Rights Amendment in the 1980s, many progressives concluded that the Constitution’s arduous amending process is not worth the effort. For their part, conservative activists have launched campaigns to win a balanced budget amendment and other ideological policies, which has only bolstered a sense among many that it’s unwise and even dangerous to tinker with the framers’ handiwork.
But this sense of defeatism is not new. In 1904, the Washington Post dismissed reformers’ “amendatory schemes,” offering the hard-boiled take that “our fundamental law is practically unamendable by peaceful and regular methods.” And yet, just a half-decade later, that pessimistic prognosis was proven wrong when Congress proposed the first of the Progressive Era amendments.
The presence of certain factors that have prompted past generations of Americans to push for constitutional amendments suggests that a new wave may already be building. Discontent over controversial Supreme Court rulings, for instance, has proven to be a predictable galvanizer of amending activity in previous eras. In fact, seven amendments were motivated by the desire to reverse high court decisions. Today the amendment option is on the table for activists working to overrule Supreme Court decisions such as Citizens United, which has allowed corporations and outside groups to spend unlimited amounts of money on campaigns.
During periods of gridlock, states sometimes look for workarounds for some of the Constitution’s most problematic provisions, and that experimentation is another driver of constitutional amendments. In the early 20th century, when the Senate blocked an amendment giving voters the right to directly elect its members (a power originally given to state legislatures), reformers in the states responded with measures such as the Oregon Plan, which allowed voters to express their Senate preference in a popular referendum. By establishing a de facto system of popular election in much of the country, they forced the Senate’s hand.
In a similar vein, some states today are pushing to circumvent the Electoral College through the adoption of the National Popular Vote Interstate Compact, which would award the presidency to the winner of the popular vote — an innovative reform that could lay the groundwork for an amendment to change how we choose the president. Even the Equal Rights Amendment, introduced nearly a century ago, might be back on the agenda thanks to state lawmakers who have revived the effort to ratify it.
It may be hard to imagine, but today’s political impasse may eventually give way to a new governing coalition. Look at the Gilded Age a century ago, when mounting social problems fueled a rare consensus for reform. Then, as now, economic inequality was widening as restraints on corporate power eroded and moneyed interests dominated our elections. The nation was polarized along regional lines that mirror today’s red state-blue state divide. Immigration was changing the country to the alarm of traditionalists. Elections were won by narrow margins, producing gridlock. And all the while, a conservative Supreme Court stood in the way of needed change. In time, the pressure for reform caused a dramatic leftward swing in national sentiment that few saw coming — an earthquake that divided the Republicans, lifted the Democrats and led to the adoption of four amendments after years of fruitless advocacy.
That all sounds a lot like 2021. The country has been going through demographic and economic changes comparable to those in the Gilded Age and a new, diverse generation of voters is on the rise. Like their predecessors in the early 20th century, the new generation has decidedly progressive politics and is leading important social movements.
So there’s hope for our Constitution and the political system it governs. While today’s partisan rancor and gridlock may currently thwart important national reforms, they may also signal the coming of a new era of constitutional change that could kick-start our country’s journey toward “a more perfect Union.”