So much for the idea of changing the constitution to keep it the same.
Ohio voters shut down a Republican attempt to stop “pro-choice” advocates from constitutionally protecting abortion in the Buckeye State. Had Issue 1 passed, the Ohio Constitution would have been amended so that any future changes require a 60% supermajority in the popular vote. And that would have made it nigh impossible for abortion advocates to enshrine a constitutional right to abort – and thus render the new six-week abortion ban “unconstitutional.”
Ohio and the Meaning of ‘Constitution’
Ohio is one of 38 states in which a simple majority popular vote is all that’s needed to amend its constitution. There are 11, however, that demand some form of supermajority or, at the very least, some special requisite beyond just 50% of voters plus one. New Hampshire has the highest required “supermajority” at two-thirds (66.67%). Florida comes in second with 60%, and Colorado is next at 55%. In the other eight, a simple majority does the trick only if some other special qualification – which varies by state – is met. Oregon, for example, requires that any rule changing the vote threshold on the constitutional amendment process meet whatever new level the measure in question proposes. So an amendment that calls for a 60% vote to change the constitution in the Beaver State would only pass with 60% or more of the popular vote. Delaware, on the other hand, is the only state in the Union that doesn’t compel the people to vote on whether to amend the constitution.
Those looking to pass ballot Issue 1 had hoped to make Ohio the 12th to require some form of supermajority – in this case, tying Florida for second place at 60% – in hopes of making it harder to pass an amendment safeguarding the right to have an abortion in the Buckeye State. That attempt failed, and now those same people can only hope the simple majority takes their side on the issue of abortion in November.
But, ignoring the ulterior motive in this particular case, there is one good reason to demand more than a simple majority to modify a constitution: the tyranny of the majority. The Founders knew well the danger of “pure” democracy, of allowing 50% plus one person to rule over the rest.
(Photo by Maddie McGarvey via Getty Images)
Changing the US Constitution requires either an Article V convention called by two-thirds of the state legislatures or an act of Congress passed by a two-thirds supermajority of both houses. Then, regardless of which path was chosen, three-quarters – or 38 out of 50 – of the states must ratify the new amendment-to-be before it is added to the federal register as an update to the Constitution. For that reason, it has been successfully amended only 27 times in 236 years – with the first ten in 1791 being approved by the same folks who wrote, passed, and ratified the initial Constitution itself.
One doesn’t see the same picture when looking at the states. When the figures for all 50 are tallied up, the “average state” is on its third constitution and has amended that most recent one 130 times – which is precisely what one might expect when just a simple majority of voters is all that’s needed. While it’s certainly not the case for a small handful of states, the constitutions of most are little more than state law that’s altered by a popular vote rather than by legislators. Such flimsy “constitutions” pale in comparison to the relatively unchanged federal example, providing little real protection against the mob rule of popular political movements.
The Left’s Urban Advantage
Does this make most state constitutions pointless? On the contrary, it means they can be used in special situations to thwart the legislature. This is precisely what abortion advocates hope will occur in November. A look at just about any election map shows that, no matter how red the state may be, most urban areas tend to vote blue. So while a state may have enough red, rural counties to result in a GOP majority in the legislature or the presidential electors going to the Republican candidate, there’s still a good chance, if there are enough heavily populated cities, that the slight majority of voters in the state are either Democrats or at least lean somewhat statist and socially progressive.
Will that urban advantage be enough to render a six-week abortion ban unconstitutional in Ohio, where Republicans have dominated for years, with a current GOP trifecta and veto-proof supermajorities in both chambers of the General Assembly? It’s a tall order, but the failure of Issue 1 means it could be close.
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