The End of Amendments?

Why state legislative polarization makes constitutional amendments increasingly unlikely


This year marks the centennial anniversary of the first class of popularly-elected U.S. Senators, as mandated by adoption of the 17th Amendment. A hundred years later, several current or former Republican members of Congress, including Todd Akin (MO), Paul Broun (GA), Pete Hoekstra (MI) and Jeff Flake (AZ), have indicated their support for returning the selection of U.S. senators to state elites.

Although the movement to repeal the 17th Amendment is likely to fizzle, the fact is plans to amend the Constitution are mostly a waste of time because, other than a widely popular and highly-unifying suggested change, it is probably almost impossible to ratify or even propose amendments in our highly-polarized nation and divided national government. Holding aside the 10 amendments of the Bill of Rights — and an 11th regulating congressional compensation that, proposed more than two centuries ago as one of 12 originally proposed amendments, was belatedly ratified in 1992 as the 27th Amendment — only 16 amendments that were not part of the constitutional bargain struck in 1787 have been proposed and ratified in the 226 years since the founders met in Philadelphia.

That works out to one amendment about every 14 years. After setting aside the unusual case of the 27th Amendment, that means almost 43 years have passed — three times the average interval — since the last normal, proposed-then-ratified-soon-thereafter amendment was adopted: The 26th Amendment’s extension of voting rights to those aged 18-to-20 years old. The record between amendments is 61 years period between the 12th Amendment, which in 1804 corrected flaws in the presidential election process, and the landmark 13th Amendment, which abolished almost all forms of slavery in 1865. That 61-year standard may soon fall.

Indeed, is it politically possible to adopt a constitutional amendment in today’s polarized America? Barring an extremely unlikely second constitutional convention, two-thirds of members of both chambers of Congress are required to propose any amendment, which seems virtually unattainable. But even if congressional supermajorities could agree, the bigger hurdle might be ratification by state legislatures, which have become almost as polarized as the national government.

The number of split-party legislatures, for example, has steadily declined over the past three decades. Because most state legislators and governors are elected in presidential midterm cycles, it’s instructive to look at state results following midterms. As shown in Table 1 below, the number of split-party state legislatures hovered around 11 or 12 from 1998 to 2006 — presidential and odd-year elections move the numbers a bit in between — but dipped to eight both prior to 2008 (not depicted) and as a result of the 2010 elections.

Table 1: State legislative chamber control, following recent midterm elections

Sources: Washington Post (1998), (2002, 2006), NCSL (2010)

Following the 2012 cycle (also not depicted), the number of split state legislatures fell further to five (now six after the 2013 statewide elections in Virginia gave Democrats the tiebreaker to control the state’s senate), which is about half the number from a decade-and-a-half ago. The 1998 midterms may have been the tipping point at which control over state legislatures began to stabilize. At the time, National Conference of State Legislatures analyst William Pound declared 1998 a “status quo election” in which fewer state legislatures had changed hands in any election going back to 1988.

The fact that just six of 49 partisan legislatures — as usual, holding Nebraska’s unicameral and non-partisan legislature aside — are split is relevant to the amendment ratification process for two, related reasons.

First, and most obviously, the rise of unified state legislatures reflects the rising blue/red polarization evident throughout American electoral politics. In the past five presidential elections, 40 states have voted all five times for either the Republican nominee or the Democratic nominee, and the number of divided U.S. Senate delegations today is almost half of what it was four decades ago. And as Table 2 shows below, state election results increasingly mirror national ones.

Table 2: Unified state party control, following recent midterm elections

Sources: Washington Post (1998), (2002, 2006), NCSL (2010)

Table 2 reports the number of unified state governments, including control of the governorship: That is, those in which Republicans hold the governorship and both legislative chambers, or Democrats have unified control. Again using results following midterm cycles, notice that the number of unified state governments reached 31 following the 2010 midterms. Although this figure dropped slightly as a result of the 2012 presidential and 2013 off-year elections, the number of unified governments right now is higher than at any time going back to the start of the Eisenhower Administration. “A lot of it is the top of the ticket influence,” NCSL’s long-time elections expert Tim Storey remarked on the declining number of split-state governments. “Some states clearly cast votes for one party or the other.”

Second and more relevant to the calculus for amendment ratification is the fact that the cleaving of states into reliably blue and red subsets makes it highly unlikely that anything other than an amendment idea supported by overwhelming national majorities could attract the necessary three-fourths of the states required by the Constitution’s Article V. Even if there were a dominant party that boasted regular control of both legislative chambers in a solid majority of states, it would still be difficult. Although Republicans have made recent and steady gains — thanks in large part to their now near-hegemonic control over southern state legislatures — neither party has been able to maintain reliable control over more than about 15 legislatures each.

The 2008 and 2010 election results are instructive: Following the former, a strong Democratic cycle, the Democrats controlled both chambers in 27 states, with Republicans dropping to 14; following the latter, a strong Republican cycle, the Republicans controlled both chambers in 25 states, with Democrats falling to 16. If polarization and the declining number of split-state legislatures allows each party to consistently lock down somewhere between 18 to 22 state legislatures each, the parties have a long way to go to amass the 38 states necessary to meet Article V’s three-quarters requirement to ratify an amendment.

For the sake of argument, consider the Democrats’ recent high-water mark of 27 states as a starting point for either party and throw in Nebraska to make matters interesting. That’s still only 28 states, and at best the window of control over this high a number might last two or perhaps four years. So in very short order a party would still need to persuade a sufficient number of opposition party legislators to support ratification in 10 states where the opposition controls at least one if not both chambers. Suffice it to say that in a polarized, red/blue America, building that sort of supermajority support would be extraordinarily difficult.

Of course, barring a second constitutional convention, any constitutional change would have to first be proposed by two-thirds votes in both chambers of Congress — a standard which by itself almost certainly prevents an amendment from being sent to the states for their ratification consideration in the first place. The bottom line? America hasn’t adopted an amendment in the traditional, proposed-then-ratified-soon-thereafter fashion in more than 40 years, and it may be a long time before it happens again.

Thomas F. Schaller is a professor of political science at the University of Maryland, Baltimore County. He is the author of Whistling Past Dixie: How Democrats Can Win Without the South and national political columnist for the Baltimore Sun.