By Dylan Matthews
Responses to Russ Feingold's proposed constitutional amendment requiring special elections to Senate vacancies are generally unanimous on two points: one, this is a good idea, and two, this will never pass. And they're both right. But rather than the shoulder-shrug fatalism that Feingold's proposal has been greeted with, the correct reaction is support for changing our absurd Constitutional amendment procedure. In the grand scheme of things, the Feingold amendment is a pretty small bore example of why the amendment process sucks. If the Constitution did not necessitate near-consensus around any alterations, we could have abolished the Electoral College, the emoluments clause, lifetime court terms, and a whole range of other procedural flaws, and we would have passed the ERA a long time ago. While I suspect they still would have failed, attempts to implement proportional representation and even abolish the Senate could have at least been entertained with a more reasonable amendment process.
The risk, of course, is a California-style scenario where the Constitution becomes a slightly harder to change version of federal law, with amendments - like the flag-burning or victims' rights ones - that have no place in the document. Certainly, switching the system for ratification-by-referendum, as per California protocol, would be a terrible move. But a more measured change, like eliminating the involvement of state legislatures, or requiring a 3/5 rather than 2/3 supermajority, would probably rule out the most egregious attempts at making social policy through the Constitution while simultaneously making it easier for needed - but currently blocked - reforms to get through.
