[stormbrew]

> Why? Partly because the Supreme Court has been very willing to discover hidden rights within the existing amendments, decreasing the need for states to go through the very arduous process of getting a new amendment over the finish line.

It seems far more likely to me that the arrow of causality goes the other way here, and that the actual difficulty of passing amendments has just gone up in proportion to the number of states admitted and the progressively worsening lack of proportionality of American legislative bodies making them more and more out of tune with what people actually want in their government.

Certainly it's not inherently "good" for law to come from the bench in itself, but it seems likely enough that the US would have fallen apart long ago without it happening.

[sova]

Alright, what are the optimal ratios?

[FactolSarin]

The optimal power ratio is one person equals one unit of power.

The problem is any change to the Constitution would require 2/3 of the states to agree. Many of those states require supermajorities to pass an amendment. Generally any change that's big enough to go into the Constitution is big enough that a few people will oppose it. A few people is all it takes. We can't even pass an "equal rights for women" amendment now in the year 2021.

Hell, we probably couldn't pass the 13th amendment today if it were required.

[jfrunyon]

> We can't even pass an "equal rights for women" amendment

Why do you think an amendment would help any supposed problem with that? Equal rights for women are already mandated.

[stormbrew]

The extremely fraught battle over the actual Equal Rights Amendment would seem to disagree with the idea that this is a settled issue.

[int_19h]

You need 2/3 to propose an amendment for ratification via a constitutional convention, but the actual ratification requires 3/4, so it's even harder.

It also makes for some weird power dynamics due to extreme imbalance in state sizes. Specifically, we're at the point where the top 1/4 (i.e 12) most populated states together contain 60% of the population, and the remaining 3/4 contain the other 40%. Thus, if small states gang up, they can arbitrarily amend the constitution while representing a minority of the overall population - "tyranny of the minority", if you like. And then consider the fact that it's state legislatures ratifying amendments by a simple majority vote, not residents - which means that, in practice, the 3/4 of the legislatures voting to ratify might actually be representing something like 20% of the population. Then account for gerrymandering etc on state level, and it can be even smaller.

FWIW, the Founders themselves were well aware of problems that can stem from an arrangement like that. When Hamilton was explaining why the principles underlying the Articles of Confederation couldn't be sustained long term in Federalist Papers (#22), one of his arguments went thus:

"It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people; and it is constitutionally possible that these nine may give the vote."

And further noting that even the power to veto can be very detrimental if abused:

"To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy."

"It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods."

Reminds you of anything?..

[sova]

>we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture

Wow, he nailed it. I was just reflecting on this peculiarity with friends. China, for an easy-to-grab example, is able to "move fast and break things" but the US, we need the two houses of Congress and the executive to line up, and if not all three are walking the same direction, we have grid-lock, which at some times seems by-design and at other times, seems only to our detriment with "how much good may be prevented."

[int_19h]

There are surprisingly many things in the Federalist Papers that read very pertinent today. This is also from #22:

"Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration."

Or here's another one (#41):

"But if the Union, as has been shown, be essential to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter."