Advantages and Disadvantages of the Amendment Process

Disadvantages of the formal process

It is difficult to remove outdated aspects

When a part of the Constitution is outdated or unpopular, it is difficult to get wide support to make necessary changes. The original document is over 200 years old and US society has changed dramatically, as have key principles like. democracy. An obvious example of this is the rules surrounding the election of the president, which make use of the electoral college. This mechanism was established when there were fears that the people would not make rational decisions, allowing the people only to vote for an electoral college of voters who would decide who the president would be. it is inconceivable that the electoral college would reject the will of the people today, but it has left the US with a number of undemocratic problems. The state-based system makes it possible for one candidate to get the most popular votes, but for another candidate to win (as happened with the election of Bush in 2000 and Trump in 2016). In addition, the system over-represents smaller states, so people in some states have greater voting power than in others. A lack of political quality in voting undermines core principles of modern democracy, yet the system cannot be changed due to a lack of support among over-represented states.

The January 6th Committee

It is difficult to incorporate new ideas

Views have changed dramatically since 1787, as have the needs of society, but it is difficult to incorporate additions that may improve the workings of the Constitution due to its entrenched nature. In a modern society there is huge consensus over the idea of gender equality. Despite the change in values regarding women's rights, the Equal Rights amendment failed as recently as 1982, with persistent attempts to reintroduce the ERA in Congress making little progress. An easier process would allow the United States to respect fundamental rights, show that the US politicians and the Constitution value equality, and enable the US to become a more modern, liberal democracy.

Guns in the USA 

The amendment process is undemocratic

The amendment procedure goes against the concept of majoritarian democracy. To block an amendment, only 13 of 50 states have to oppose it. It would be possible (even if unlikely) for the 13 smallest states to block an amendment proposal. This is also true in Congress where some amendments (such as the Flag Protection amendment) have received over 50 per cent of the votes in both House and Senate, but have not reached the super-majority threshold.

The protection of Civil Liberties and Rights in the USA today

It gives the Supreme Court excessive power

Entrenchment allows nine unelected judges to have the final say on key issues of institutional power and human rights. Rulings by Supreme Court justices are extraordinarily difficult  to overturn, rendering their word final. This might be acceptable if justices were neutral interpreters of the Constitution, but they are not — they use their own personal biases. The ambiguous nature of the Constitution, outlined above, exacerbates this problem. This has led Edwin Meese to argue that the US has an imperial judiciary with no effective constitutional limits, because it is virtually impossible to change their rulings.

Interpretations & debates of the US Supreme Court & civil rights 

Comparison USA & UK Supreme Court 

Too political

Advantages of the formal process

It protects key principles of political processes

Some political principles are so important that it should be difficult to change them. Basic democratic ideas — such as elections every four years and separation of powers — could be seen as essential principles. The Founding Fathers made some ideals almost completely immune from change, such as the requirement for a republic to be a guaranteed form of government, going further than the entrenchment outlined in article V.

However, the Constitution does allow for change. These principles can be altered when there is very broad support, through the formal amendment process or by the Supreme Court setting, precedents to the Constitution, without the need to pass amendments.

How flexible is the US Constitution? 

It protects states and upholds federalism

The US has a tradition of respect for states' rights, and entrenchment helps to maintain this. While this could be seen as an extension of the idea of protecting key principles of the political process, for many it is the key process. This is ensured through the 10th amendment and the amendment process, as well as small states receiving equal representation in Senate and the electoral college. Proposals to undermine the power of states have failed through the amendment process, such as attempts to remove the electoral college. The Supreme Court has successfully upheld state rights partly due to the entrenched nature of the Constitution.


It prevents abuse of power

An entrenched Constitution stops an individual from one political party changing constitutional rules for their own benefit. At least at a federal level-(Case study gerrymandering)  This was a key aim of the Founding Fathers. The current US process requires bipartisan support — a single party is highly unlikely to have a two-thirds majority in each chamber of Congress. President George W. Bush requested a line-item veto power in 2006, a measure that would have allowed him to veto just parts of a bill, rather than a whole bill. This enhanced power was not approved by Congress.

It prevents ill-thought-through amendments

The amendment process involves several institutions and requires cross-party agreement. This prevents short-term or irrational thinking entering the Constitution. Several amendment proposals can be seen as knee-jerk reactions to a current event or Supreme Court ruling. e.g. flag burning. Many commentators felt this about the proposed inclusion of gay rights into the Constitution or their proposed exclusion (as in the federal marriage amendment). Given how quickly values change, a federal marriage amendment passed in the early 2000s could easily be seen as outdated today.

Strict and loose constructionalism