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Two Key Assumptions

By Jim Rubens

War Room Director, Federal Fiscal Sustainability Foundation

Editor’s Note: Congratulations to our good friend and tireless Article V advocate Jim Rubens as he publishes the inaugural edition of Inside Amending on Substack! Please enjoy the kickoff here, and subscribe at https://jimrubens.substack.com.

At least two amendments to the U.S. Constitution are likely to win ratification by the early 2030s. In this introductory post to my weekly newsy/analytical look inside the modern amending movement, I’ll make the case for two key assumptions which, if true, make my 2 by 2035 prediction feasible.

Assumption one is that the academics who have studied 238 years of American constitutional history are wrong in asserting that our Constitution is “unamendable.” In fact, history shows that our Constitution becomes amendable roughly each half century during periodic high-water marks of public political frustration and appetite for structural reform. Assumption two is that the meta-scale reforms urgently needed today cannot be had without amendments.

If these assumptions are true, those with the most intense appetite for political reform should turn their primary attention to a largely grass roots endeavor now operating mostly outside the shiny-object radar of both new and old media: the growing modern constitutional amending movement.

We are now in the early chapters of America’s fifth amending wave. My intent in this Substack is to give readers an inside, real-time look at the process as it unfolds, and to convert observers into activists.

The Two Key Assumptions

The first is that amendments come in waves and clusters, an insight I credit to Jeff Clements, friend and visionary, co-founder and CEO of American Promise.

The Philadelphia framers openly acknowledged that our 1788 Constitution was imperfect and therefore included Article V, permitting the amendment of errors. James Madison, an anti-populist and chief Article V drafter, wanted the amending process to be difficult, but not impossible. Thus, the thresholds of 2/3rds of both bodies of Congress or 2/3rds of the states to propose and 3/4ths of the states to ratify. However, over the 89 days of deliberation in 1787, the framers spent not more than two days on Article V, too little time getting the right balance between stability and flexibility, resulting in our Constitution being by far the free world’s most difficult to amend.

Article V reads, in relevant part:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds [now 34] of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths [now 38] of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

According to constitutional scholar Jill Lepore, over U.S. history through 2024, 11,985 amendments have been proposed (all by Congress and none yet by the states) with a scant 27 successfully ratified, an average of one per decade. Other nations amend or replace their constitutions at least twice as frequently. Among our fifty states’ constitutions, the median amendment rate is eight per decade.

One distortion caused by this difficulty is that constitutional problems are almost always imperfectly and sometimes poorly resolved by Supreme Court decisions which often fail to reflect or advance national consensus. Eight of our 27 amendments were ratified specifically to overturn Supreme Court decisions—the 11th guaranteeing state sovereign immunity; the 13th abolishing slavery; the 14th guaranteeing equal protection under law; the 15th barring discrimination by race, color or prior servitude; the 16th permitting the federal income tax; the 19th granting women the right to vote; the 24th abolishing the poll tax; and the 26th requiring states to permit age 18 voting.

A second distortion resulting from the high two-thirds/three-fourths thresholds is that amendments become possible to ratify akin to erupting geysers, following decades of increasing frustration and division over unresolved meta issues. Over U.S. history, we’ve seen four prior amending bursts lasting from five to fifteen years and separated by forty-to-sixty-year quiet periods.

1789-1804:    Amendments 1-12 (the Bill of Rights)
1865-1870:    Amendments 13-15 (the Reconstruction Era, ending slavery, barring racial discrimination, and guaranteeing equal protection)
1909-1920:    Amendments 16-19 (the Progressive Era, corruption reforms, direct election of Senators, income tax, women’s right to vote, and Prohibition)
1961-1971:    Amendments 23-26 (the Civil Rights Era, age 18 voting, and an Equal Rights Amendment likely to have been ratified had Congress not included a seven-year time limit)

My second key assumption is that we now face fundamental structural issues that cannot and will not be effectively addressed without amendments. We are now fifty years past the 1960s amending wave and pressure to amend is now at the fifth wave eruption stage. Here are two rock-solid political pressure gauges.

According to Pew polling, trust in the federal government has collapsed from 75% in the 1960s to a record low 17% today. Robert Putnam and Shaylyn Romney Garrett have tracked hundreds of indicators of American political and civic health, from the 1890s, to the 1960s peak, to today’s record post-Civil War low.

The data screams at us. While partisans should continue their efforts, changes in presidents, courts, and party control have not resolved our fundamental structural problems.

Americans are ready for the fifth amending wave, the Limits Era of 2028-2035.

Three to four amendments could well cross the finish line: limits on campaign money, limits on national spending and debt, and limits on terms of office. A fourth and a needed sleeper is to make amending less arduous, perhaps via a simple text change, decreasing the proposal and ratification thresholds to 3/5ths and 2/3rds.

The People are Far Ahead of Congress

With respect to the Limits Amendments, Congress is utterly failing to represent the will of the American people. All three Limits Amendments are supported by cross-partisan supermajorities. As to Congress, sponsors and co-sponsors of the leading Congressional resolutions proposing the desired amendments are far from the needed 2/3rds support. And unlike the public, Congressional support is highly partisan.

Polling data with clickable links:

Fiscal/debt limits 79% (86%R, 74%D)**

Campaign money limits 71% (72%R, 76%D)

Term limits 83% (85%R, 79%D)

Reflecting amendment progress through U.S. history, Congress remains far behind the American people. History shows that amendments do not and will not cross the finish line to ratification without intense, persistent, boundary-crossing public activism. More on boundary-crossing activism in subsequent posts.

Final prediction: for the first time in U.S. history, at least one of the Limits Amendments will be proposed by the states. Much more on this in subsequent posts (which will be much shorter).

Establishing My Cred I became an amending activist in 2013 during my unsuccessful run for U.S. Senator from New Hampshire. Confirming what I learned about the political process during my time as state senator, the meta-scale issues I sought to address in Congress—debt, financialization and the working-class economy, immigration, healthcare, corruption, energy and climate, innovation, and defense strategy—will remain subject to deadlock or partisan whipsaw until amendments compel or remove impediments to a more perfect union.

Having retired from small business entrepreneurship and elective politics, several years ago I became a full-time amending activist. Today, I serve on the boards of American Promise and the Federal Fiscal Sustainability Foundation. I am “war room director” for FFSF. I also volunteer at the leadership level with additional pro-Article V organizations, working to maximize collaboration.

American Promise is leading the national effort to ratify a Congressionally-drafted amendment to restore to Congress and to the states, as they see fit, power to set reasonable limits on campaign money and to distinguish artificial entities from actual people. Federal Fiscal Sustainability Foundation is one of the nation’s two leading organizations advocating a state-drafted amendment to limit national spending and debt.

Editor’s Note: In last month’s feature, Casualties of State Inaction, we reported that $9 billion—the estimated level of fraud alleged to have occurred in Minneapolis—was enough money to fund SNAP benefits for the state of New Mexico for an entire year. In fact, it’s enough to fund this program for almost 9 years. Many thanks to Ed Mullholland for bringing this to our attention.

Article V News

The National Constitution Center has posted resources for high school students for use with their recent Town Hall, Amending the Constitution and the Article V Project.

The Hill published an opinion piece calling on President Trump to stay “true to his roots” and back an Article V Convention. There are two problems with this proposal: first, Trump was not an advocate of an Article V Convention when he appeared on the national political scene, so representing this as a return to “his roots” is, at best, misinformed; but more importantly, Republicans don’t control enough state legislatures to do anything unilaterally: without the cooperation of their Democratic counterparts, there is no path to getting a ratified amendment. The Article V movement doesn’t need yet more red states on the tote board…it needs more advocates who are able to build bipartisan coalitions for the good of the American people. Love ’im or hate ’im, Trump is not the man for that job.

“[E]veryone wants instant solutions…lasting change is supposed to be hard [but] not impossible.” Montana Public Service Commission Jeff Pattison has penned a piece supporting an Article V Convention in The Glasgow Courier.

Oregon should finish the job: Andrew Kalloch, Oregon State Chair for US Term Limits, argues for term limits on Congress on the 75^th anniversary of the 22^nd Amendment in the Rogue Valley Times.

GovTrack.us has published a study guide for HCR 15, a resolution calling for an Article V Convention to propose a fiscal responsibility amendment.

Iowa gubernatorial candidate Brad Sherman has published a statement opposing an Article V Convention in the Iowa Standard. Sherman argues that the Constitution doesn’t need fixing, we just need to “enforce the law.” Is that true? The most popular issues among Article V advocates are campaign finance reform, fiscal controls, and term limits. All three of these areas suffer from the same problems: “enforcing the law” means Congress must be trusted to police itself, which flies in the face of the checks-and-balances foundation upon which our republic was built. Even if one Congress did codify some self-restraint in law and could be counted on to comply with it, the next Congress could—and probably would—repeal it. The delegates to the Constitutional Convention included Article V so we could respond to contingencies they couldn’t possibly have anticipated. We do them no credit engaging in some sort of perverse ancestor worship by refusing to use the tools they gave us “to form a more perfect union.”

Article V Legislative Activity

Convention of States Project

Illinois: SJR 27 and HJR 15 remain pending in their respective committees. The House version has bipartisan support.
Iowa: HJR 2004 has been introduced and received a do-pass vote in the House Committee on Agriculture. SJR 2011 has been introduced and assigned to the Senate State Government Committee.
Kentucky: HJR 51 and SJR 51 have been introduced and received committee assignments.
Massachusetts: H 3888 remains pending in the Joint Committee on Veterans and Federal Affairs.
Nebraska: LR 14 has been placed on General File.
New Jersey: SCR 32 awaits action in the Senate State Government, Wagering, Tourism, and Historic Preservation Committee. The measure has bipartisan support.
Ohio: SJR 3 and HJR 2 remain pending in their respective committees.
Pennsylvania: HR 125 remains pending in the House State Government Committee. The measure includes delegate selection and oversight language and has bipartisan support.
Rhode Island: HJR 7009 has been postponed in the House State Government & Elections Committee at the request of the sponsor.
South Dakota: SJR 503 failed in the House owing to bipartisan opposition after having passed in the Senate with bipartisan support.
Washington: SJM 8011 awaits action in the State Government, Tribal Affairs, and Elections Committee.
Wyoming: SJR 5 has been filed, passed with bipartisan support, and sent to the House.

Countermand

Pennsylvania: SR 118 remains pending in the State Government Committee. The legislation also contains language pertinent to delegates, so it is also included in the DSO list below.

Equal Rights Amendment

Florida: S 82 remains pending in the Senate Judiciary Committee.
North Carolina: S 438 and H 500 remain pending in their respective committees.

Fiscal Responsibility

United States: HCR 15 remains pending in the House Judiciary Committee.
Georgia: SR 262 awaits action after having been recommitted in January.
Idaho: HCR 25 has been assigned to the Senate Judiciary and Rules Committee.
Kentucky: HCR 45 has been introduced and assigned to committee.
South Carolina: H 3007 continues to await action after having been adopted by the Senate and returned to the House with concurrence.
West Virginia: HCR 19 has been introduced and assigned to the Judiciary Committee.

Free and Fair Elections (Wolf Pack)

Massachusetts: S 2463 awaits action after having been referred to the Rules Committee for further investigation and study. H 3842 and H 3843 remain pending in the Joint Committee on Veterans and Federal Affairs. H 3843 has bipartisan support.
Washington: HJM 4011 has had a first reading and remains pending in the State Government & Tribal Affairs Committee.

Term Limits

United States Congress: HJR 12 and SJR 1 remain pending in their respective committees. The House rendition has bipartisan support.
United States Congress: HJR 29, allowing the president to serve a third term under certain circumstances, remains pending in Judiciary.
Arizona: SCR 1011 received a do-pass vote from the Senate Regulatory Affairs & Government Efficiency Committee, the majority and minority caucuses, and the Senate Committee of the Whole. HCR 2043 passed on third reading and was transmitted to the Senate.
Georgia: SR 23 passed in the Senate and awaits action in the House Rules Committee.
Kansas: HCR 5022 has passed in the House and awaits a hearing in the Senate Federal and State Affairs Committee.
Kentucky: SJR 17 continues to await action in the Senate Committee on Committees.
Mississippi: SC 513 continues to await action in the Rules Committee.
Nebraska: LR 21 continues to await a committee assignment.
New Hampshire: HCR 13 has received an Ought to Pass report from the Majority Committee and an Inexpedient to Legislate report from the Minority Committee. HCR 16 has referred for interim study.
Pennsylvania: HR 21 continues to await a hearing in the State Government Committee. The measure covers Supreme Court justices as well as members of Congress and has bipartisan support.
Utah: SJR 4 was reported favorably out of the Senate Government Operations and Political Subdivisions Committee and has been scheduled for a second reading.

Delegate Selection and Oversight

Alabama: HB 443 has been introduced and has been assigned to the Constitution, Campaigns and Elections Committee.
Indiana: SB 210, a compact to ensure that an Article V Convention is conducted on a one-state, one-vote basis and that subject-matter limitations expressed in the applications will be observed, has been assigned to the House Judiciary Committee.
Kansas: HB 2065 passed in the House and remains pending in the Senate Committee on Federal and State Affairs.
Maryland: HB 785 and SB 517 have had first readings and are pending in committee.
Michigan: HCR 2 and HB 5151 remain pending in the House Government Operations Committee. The measures stipulate appointment by legislative leadership and define delegate misbehavior or tampering with a delegate as a felony punishable by up to 5 years in prison.
Missouri: HB 1811 continues to await committee assignment. SB 1119 received a do-pass vote the Senate Rules, Joint Rules, Resolutions and Ethics Committee.
Nebraska: LB 259 continues to await a committee assignment.
New Jersey: S 832 continues to await action in the Senate State Government, Wagering, Tourism, and Historic Preservation Committee.
New York: A 8935 and S 8166 remain pending in their respective committees.
North Carolina: H 214 continues to await action in the Committee on Rules and Operations of the Senate.
Ohio: HB 67 and SB112 continue to await action in their respective committees.
Pennsylvania: SR 117 continues to await action in the State Government Committee (see also Countermand legislation, above).
South Dakota: HB 1196 was introduced and tabled in the State Affairs Committee.
Tennessee: HB 1499, revising the existing statute, is scheduled for a hearing in the State & Local Government Committee. SB 1567 has received a do-pass vote in the Senate Judiciary Committee and has been referred to the Calendar Committee.
Virginia: HB 8 and SB 549 have failed in their respective Rules Committees.
West Virginia: HB 5507 has been introduced and assigned to the Judiciary Committee.

Rescission

Missouri: HCR 26 continues to await committee assignment.
Oklahoma: SCR 14 continues to await a committee assignment.
Rhode Island: HJR 7792 has been filed and assigned to the State Government & Elections Committee.
Washington: HJM 4005 remains pending in the State Government, Tribal Affairs, and Elections Committee.

Other

Missouri: HCR 39, applying for a convention to repeal the 16^th Amendment (income tax) has been filed and received a first and second reading.
New Jersey: SCR 22, applying for a convention to propose a balanced budget amendment, a term limits amendment, and unspecified changes to the allocation of Electoral College votes, remains pending in the Senate State Government, Wagering, Tourism, and Historic Preservation Committee
Oklahoma: HJR 1036 has had a second reading and been assigned to Rules. The measure calls for a convention to propose an amendment to prohibit the President or any member of the House, Senate, or Supreme Court from being paid during a government shutdown. It further defines a shutdown to include any period in which Congress has failed to pass a balanced budget (defined as expenditures not to exceed the prior year’s tax receipts) and stipulates that the aforementioned elected officials will be ineligible to stand for reelection.
South Dakota: SJR 502, purporting to fix the number of Supreme Court Justices at 9, passed in the Senate and has been assigned to the House State Affairs Committee.
West Virginia: HCR 9, purporting to repeal the 17^th Amendment (direct election of senators) and HCR 10, purporting to repeal the 16^th Amendment (income tax) remain pending in the Judiciary Committee.
West Virginia: HCR 11, purporting to require that certain federal officials be natural-born citizens with sole and exclusive citizenship in the United States, remains pending in Judiciary.
West Virginia: HCR 12, purporting to fix the number of Supreme Court Justices at 9, remains pending in Judiciary.

Constitutional Education

In anticipation of the 250^th Anniversary of our Declaration of Independence, we invite you to enjoy the scholarship of the Journal of the American Revolution.

Who Said it?

If you do not change direction, you might end up where you are heading.

Lao Tzu