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.