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During the 1970s, there was an attempt to include equality between women and men in the American Constitution. It was a failure. What are the rules to follow to amend the Constitution?
My question may be naive, but if Kamala Harris were elected, what powers would she have to change the current composition of the Supreme Court?
It is very difficult to amend the US Constitution, and it is not particularly easier to change the number of justices on the Supreme Court, since the President of the United States has no direct power over either aspect.
Amending the Constitution, “is a complexity that makes no sense,” Élisabeth Vallet, director of the Geopolitics Observatory of the Raoul-Dandurand Chair, tells us straight away. There is a reason behind this complexity. “For any political regime, the Constitution is the foundation. It must not be able to vary over time and it must be sustainable,” she explains.
“The founding fathers wanted it to be difficult to amend the Constitution to prevent anyone, at any time, from changing it all the time. And so that this founding document would no longer resemble anything from one election to the next,” illustrates Karine Prémont, professor at the School of Applied Politics at the University of Sherbrooke.
Mᵐᵉ Vallet, who also writes a column in The Dutyadds: “When we decide to change the Constitution, it really has to be because everyone says: ‘OK, the social contract doesn’t work, the constitutional contract doesn’t work, we need to amend something.'”
Two potential procedures
But then how do you amend the Constitution when the mood has changed enough that everyone agrees to ratify it? There are, in theory, two procedures. The first comes from a proposal by Congress, the other comes from a convention requested by two-thirds of the states.
“In fact, only the first one was used in the 27 amendments that were adopted, so that’s essentially what we’re talking about,” notes Christophe Cloutier-Roy, deputy director of the Raoul-Dandurand Chair’s Observatory on the United States.
The proposal is “first adopted as a bill in Congress,” he said. It then needs to be adopted by two-thirds in both houses of Congress. “That alone is quite difficult given the current degree of polarization in the United States.”
If the bill passes, it will go through a ratification process that requires approval from three-quarters of state legislatures, or 38 out of 50.
“Once again, it is quite difficult given the great political disparities that can exist between the different states. Especially since there can be very strong consequences when amending the Constitution,” underlines Mr. Cloutier-Roy.
In the current political context of the United States, “even if the possibility exists, it is difficult to see what sort of issues could sufficiently unite Democrats and Republicans from one end of the country to the other for an amendment procedure to be adopted,” the researcher summarizes.
Change the composition of the Supreme Court
If Kamala Harris were to become president of the United States, she would not gain the power to change the number of justices on the Supreme Court, which currently stands at nine. That again falls to Congress, which can do so by passing a law.
“Then it would be up to the president to ratify this bill. But Kamala Harris or Donald Trump cannot say: ‘I will increase the number of judges from so much to so much,'” says Karine Prémont.
In the Democratic camp, some are campaigning for an increase in the number of judges on the country’s highest court, which would counterbalance the trend of recent years. Because this temple of law has been profoundly reworked by Donald Trump: of the six conservative judges, half were appointed during the Republican’s term.
According to Christophe Cloutier-Roy, what Kamala Harris could do “concretely” to help ensure that the Democrats’ desire to see a change in the composition of the Supreme Court is fulfilled is “to take a public position so that Congress adopts a law that goes in this direction.”
If this happened during a Kamala Harris presidential term, “she would have her usual powers”, that is to say, that of “appointing the judges who will occupy the new seats then created”, underlines the expert.