How (Not) to Amend a Constitution

As any observant American is all too aware, hypocrisy is the very air in which our national discourse transpires. But sometimes that hypocrisy reaches levels that simply take your breath away.

In my home state of Ohio, a truly breathtaking exercise in political cynicism is unfolding. This November, the voting citizens of the state will be asked to decide whether certain reproductive rights — prominently, the right to obtain an abortion in certain circumstances — should be enshrined in the state constitution.

This is a direct result of the US Supreme Court’s Dobbs ruling last year, which removed abortion from the list of rights that the US Constitution is presumed to protect and returned the question of how abortion should be regulated to the tender mercies of the various states. Since then, Ohio and 22 other states have enacted or have pending laws that either totally ban abortions or limit the procedure to the first six or eight weeks of pregnancy.[1]

The inevitable pushback has begun, and Ohio’s voter-initiated constitutional amendment process is one of its many avenues. The amendment’s text is ready,[2] more than double the number of petition signatures required to put the change on the ballot have been collected, and all that remains is November’s vote.

All, that is, except for a vote on another constitutional amendment – “Issue 1” — proposed by the Republican-dominated Ohio legislature in direct response to the abortion initiative. It would change the rules for how the state’s constitution can be amended by increasing the required popular vote threshold from a simple majority – which has been the rule for 111 years — to 60%.

To make matters worse, voting on Issue 1 has been scheduled to take place on the 8th of August, a month notorious for producing such low voter turnouts that special elections in August had been previously banned by the very same state legislature on the grounds that they were “bad news for the civic health of our state.”[3]

But that was then – mere months ago – and this is now, when almost half a million signatures have been collected to put the reproductive rights amendment on the ballot in November, and the voters will actually get to decide an important policy issue that till now has been decided for them by the self-appointed guardians of morality in the state legislature.

Yet those same moral guardians are now hyperventilating that the Ohio constitution needs to be “protected” from “outside interests”[4] and other invaders (including, apparently, Ohio citizens who may disagree with them) by raising the amendment passage threshold to 60% and requiring that petition signatures in support of such initiatives be gathered in all 88 Ohio counties, and not just 44 per current law.

And of course, to pile irony on the hypocrisy, the adoption threshold for the amendment to increase the adoption threshold to 60% will be — wait for it — a simple majority.

But perhaps the greatest irony of this tawdry display of partisan politics is the fact that Dobbs was hailed by conservatives as a victory for democracy over the elitist ruminations of the handful of unelected men and women who make up the Supreme Court, an opportunity for the people of the various states to decide such fraught questions as those at the heart of the abortion debate.

Now it seems that no, that’s not that kind of democracy we had in mind, but rather one where a minority – say, 40% of the voters – can hamstring the will of the majority, and where statehouse politicos continue to decide matters of the deepest personal import without being second-guessed by the people who put them in office.

The Constitution of the United States, written by a bunch of white males 246 years ago, has since been amended only 17 times, not counting the immediate second thoughts contained in Amendments 1 through 10, which we call the Bill of Rights. The other amendments range from the instrumental (like the Equal Protection Clause of the Fourteenth Amendment) to the self-contradictory (prohibition in the Eighteenth Amendment, repeal of prohibition in the Twenty-first) to the merely administrative (congressional compensation in the Twenty-seventh).

If that seems far fewer amendments than one might expect for such an aged document, it’s because the barriers to amending it are dauntingly high (proposal by a two-thirds vote of both houses of Congress and ratification by three-fourths of the state legislatures) – as evidenced by the sorry fate of the seemingly inoffensive Equal Rights Amendment.[5]

But most of the arguments for a rigid and mostly unchanging federal Constitution don’t apply in the case of the states, whose constitutions must address all the rights, privileges, and duties expressly reserved to them by the Tenth Amendment of the US Constitution, as well as the myriad practical functions incumbent on state and local government, from schooling to policing to how to finance sports stadiums or formalize marriages. If any constitution should be the sort of “living document” that many of us wish the US Constitution were, it’s a state constitution.

Regardless of how they feel about abortion, Issue 1 should offend all Ohio voters for the simple reason that it significantly diminishes the power of their individual votes in any referendum on how their constitution should read.[6] It’s a blatant power grab on the part of state politicians who need to be reminded who really runs the show. It’s also a naked display of the cynicism that has so thoroughly infected American politics, a brand of hypocrisy that only our votes can adequately shame.

Even if we have to vote in August to do it.


[1] Source: Wall St. Journal, “Where Abortion is Legal” (May 31, 2023).

[2] See: The-Right-to-Reproductive-Freedom-with-Protections-for-Health-and-Safety.

[3] Source: Frank LaRose, Ohio Secretary of State, the state’s chief elections officer (a Republican).

[4] Ironically, but not surprisingly, both the pro-Issue 1 and anti-Issue 1 campaigns are being overwhelmingly funded by money from sources outside Ohio. “Who’s funding the Ohio Issue 1 Campaigns?” Columbus Dispatch, July 28,2023.

[5] In a different world, the United States would have convened a second Constitutional Convention by now. Who can believe that the founders, had they been born in the 20th century rather that the 18th and were presented with the Constitution, as amended to date, as the framework for a brand-new continental nation of 300 million people, would seriously consider adopting it as-is? They would cut and paste some of it, certainly, but a lot of it would go in the trash, starting with the anachronistic and tragically dangerous Second Amendment.

Close behind it into the dustbin of history would go the Electoral College, an elitist, anti-democratic, and, in the modern era, thoroughly unnecessary stumbling block in the process of electing a president.

Our New Founders would probably keep the House of Representatives, but they’d require that its size reflect the country’s vast growth in population since 1929, when the number of House seats was arbitrarily fixed by statute at 435. James Madison (deserving of his own Broadway show) wanted the Constitution to require that the size of the House be proportional to the country’s population, but that amendment failed. The New Founders might establish a constitutional rule that the number of representatives equal the cube root of the population, a relationship typical of the national legislatures of other modern democracies. This would increase the current House to 593 members and allow for an allocation of House seats among the states in closer proportion with each state’s population.

And while they’re at it, might as well make gerrymandering a violation of the Constitution and require that Congressional district boundaries conform to the nonpartisan principles of contiguity, conformity with natural and political boundaries, and compactness.

They might decide to dispense with the absurd political theater that accompanies executive appointments and have the new Constitution establish a permanent, bi-partisan commission to develop and maintain lists of eminent candidates for cabinet posts, the Supreme Court, and other senior governmental positions over which the President has appointment or nominating authority, and require that nominees and appointees be selected from those lists.

And speaking of the Court, our New Founders might take a look at recent history and impose term limits on members of Congress and Supreme Court justices.

[6] Unless, of course, we make a habit of changing the adoption threshold percentage whenever the shoe is on the other foot.


One thought on “How (Not) to Amend a Constitution

  1. Amen. We are in a very cynical age of politics. More so than usual? Seems so to me, but maybe I’m just paying better attention since our previous Cynic-in-Chief, The One Who Must Be Watched, was elected.

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