No, Republicans don’t control enough states to change the Constitution (but it’s close)
By Amber Phillips November 16, 2016
https://www.washingtonpost.com/news...itution-but-its-close/?utm_term=.0d112620a641
Here's how dominant Republicans are at the state level: There is serious discussion about whether they may have enough power to unilaterally amend the U.S. Constitution.
Conservatives have plenty of constitutional tweaks on their wish lists, but at least one took center stage this year. During the Republican presidential primary, then-candidate Donald Trump and others suggested eliminating birthright citizenship, which would require changes to the 14th Amendment.
It turns out Republicans don't actually have enough numbers to change the 14th Amendment (or any other) on their own. But they're surprisingly close to being able to take some of the first steps, a fact that underscores their strength at every level of governance. As I wrote last year, constitutional amendments are so difficult to pass that they are often spurred only by war, crises or death.
With help from Cornell Law professor Josh Chafetz — my go-to resource on constitutional law — let's break down what one party would need to do to go about changing the Constitution, and why Republicans are close, but not quite there.
Option one: Start with Congress; take it to the states.
There are actually two ways to change the Constitution that are written into Article V. The most common way (the only way it's been done so far) is to start by having Congress pass a constitutional amendment.
Our founders made this one of the most difficult things to do in all of governing.
What they need: A two-thirds supermajority in both chambers of Congress has to agree to it.
What they have: Republicans control both chambers of Congress, but they don't have a supermajority. Republicans would need to control 290 seats out of the 435 if they were going to pass a constitutional amendment without any Democratic help. With some races still outstanding, Republicans currently control 239.
In the Senate, Republicans are even further from the two-thirds line. Republicans would need to control 67 seats; in January, they'll control 51.
For the sake of argument, let's pretend a constitutional amendment somehow got through Congress. Then it goes to the states, where there are two options to ratify it (state legislatures can do it, or states can convene a ratifying convention), but both require three-quarters of states to agree to it.
Republicans need 38 states to make either of those things happen. Some results are still outstanding, but it looks like Republicans will start 2017 with majority control of the entire state legislature in 33 states. (We're including Nebraska's legislature, which is technically nonpartisan but practically Republican, in this count.)
That's a pickup from 2016, when Republicans controlled both chambers of the legislature in 30 states. But it's still shy of what they'd need to ratify a constitutional amendment without any Democratic help.
Plus, Democrats control both chambers in 13 or 14 states and at least one chamber in 18 states, so it looks like they'd have enough political clout to block five other states from joining with Republicans to ratify something.
Option 2: Let the states do it via a constitutional convention.
If Option 1 is difficult, Option 2 appears impossible: Convening a constitutional convention. My colleague Philip Bump goes into more detail here on how the process would work, but essentially it's a way for the states to go around Congress and change the Constitution themselves.
It's never happened before (although there have been groups trying to promote the idea.) As Chafetz points out, the rules are hazy on what could even be discussed at such a convention. What we do know is that it would require two-thirds of states to call a convention to even propose an amendment.
Here, Republicans come their closest to being able to get the ball rolling on their own: They control both chambers in 33 states, just shy of the 34 needed.
The bottom line
Even before Nov. 8, Republicans controlled more state legislative chambers (and governorships) than at any time since the Great Depression. With this election, they cemented their dominance. According to population calculations by the conservative group Americans for Tax Reform, that translates to roughly 80 percent of the population living in a state either totally or partially controlled by Republicans.
But it's so difficult to change our Constitution that even that boost isn't enough.
By Amber Phillips November 16, 2016
https://www.washingtonpost.com/news...itution-but-its-close/?utm_term=.0d112620a641
Here's how dominant Republicans are at the state level: There is serious discussion about whether they may have enough power to unilaterally amend the U.S. Constitution.
Conservatives have plenty of constitutional tweaks on their wish lists, but at least one took center stage this year. During the Republican presidential primary, then-candidate Donald Trump and others suggested eliminating birthright citizenship, which would require changes to the 14th Amendment.
It turns out Republicans don't actually have enough numbers to change the 14th Amendment (or any other) on their own. But they're surprisingly close to being able to take some of the first steps, a fact that underscores their strength at every level of governance. As I wrote last year, constitutional amendments are so difficult to pass that they are often spurred only by war, crises or death.
With help from Cornell Law professor Josh Chafetz — my go-to resource on constitutional law — let's break down what one party would need to do to go about changing the Constitution, and why Republicans are close, but not quite there.
Option one: Start with Congress; take it to the states.
There are actually two ways to change the Constitution that are written into Article V. The most common way (the only way it's been done so far) is to start by having Congress pass a constitutional amendment.
Our founders made this one of the most difficult things to do in all of governing.
What they need: A two-thirds supermajority in both chambers of Congress has to agree to it.
What they have: Republicans control both chambers of Congress, but they don't have a supermajority. Republicans would need to control 290 seats out of the 435 if they were going to pass a constitutional amendment without any Democratic help. With some races still outstanding, Republicans currently control 239.
In the Senate, Republicans are even further from the two-thirds line. Republicans would need to control 67 seats; in January, they'll control 51.
House
Senate
Senate
For the sake of argument, let's pretend a constitutional amendment somehow got through Congress. Then it goes to the states, where there are two options to ratify it (state legislatures can do it, or states can convene a ratifying convention), but both require three-quarters of states to agree to it.
Republicans need 38 states to make either of those things happen. Some results are still outstanding, but it looks like Republicans will start 2017 with majority control of the entire state legislature in 33 states. (We're including Nebraska's legislature, which is technically nonpartisan but practically Republican, in this count.)
That's a pickup from 2016, when Republicans controlled both chambers of the legislature in 30 states. But it's still shy of what they'd need to ratify a constitutional amendment without any Democratic help.
Plus, Democrats control both chambers in 13 or 14 states and at least one chamber in 18 states, so it looks like they'd have enough political clout to block five other states from joining with Republicans to ratify something.
Option 2: Let the states do it via a constitutional convention.
If Option 1 is difficult, Option 2 appears impossible: Convening a constitutional convention. My colleague Philip Bump goes into more detail here on how the process would work, but essentially it's a way for the states to go around Congress and change the Constitution themselves.
It's never happened before (although there have been groups trying to promote the idea.) As Chafetz points out, the rules are hazy on what could even be discussed at such a convention. What we do know is that it would require two-thirds of states to call a convention to even propose an amendment.
Here, Republicans come their closest to being able to get the ball rolling on their own: They control both chambers in 33 states, just shy of the 34 needed.
The bottom line
Even before Nov. 8, Republicans controlled more state legislative chambers (and governorships) than at any time since the Great Depression. With this election, they cemented their dominance. According to population calculations by the conservative group Americans for Tax Reform, that translates to roughly 80 percent of the population living in a state either totally or partially controlled by Republicans.
But it's so difficult to change our Constitution that even that boost isn't enough.
