“…and if you don’t like it, you can change it,” the Founders of this nation said (paraphrasing the somewhat stuffy parlance of the 18th century contained in the fifth article of the Constitution).

Even though the process to alter the fundamental law was and is never easy, the people of the U.S. took up the founders’ challenge and have amended it 27 times. Your nerdy nephew the historian will remind you that more than 10,000 amendments have been offered in Congress.  Thus, only a tiny fraction has made it through the labyrinthine process.  Compare that number to the 237 amendments added to Nebraska’s basic law of 1875 (See: Ballotpedia, Nebraska Constitution, fn 3).

A lawyer will point you to Art. V of the Constitution which decrees two ways to alter the document: legislative proposal by 2/3 of both houses followed by ratification by ¾ of the legislatures of all states, or a convention called for by a super-majority of the states’ lawmakers. The first method, which has worked, but rarely, is a lot tougher than the second, which requires the states to agree on the same language from the get-go.

Interest groups, such as the powerful conservative American Legislative Exchange Council (ALEC), have proposed that states get together to agree on language (such as a Balanced Budget Amendment, one of ALEC’s pet projects) to steamroll a constitutional convention.  Without pre-agreements, any call for a convention could get mired in such issues as: How many delegates from each state? How many votes for each state? Who presides? What’s the agenda? What limits on what may be proposed? What’s the deadline for ratification? May a state withdraw ratification?

The reader can see that without pre-consensus, efforts at a convention would probably end in chaos as politicians bicker over each of these issues and many more.

Depending on whether you are red or blue, you’ve probably made up your mind that the Constitution needs to be amended, whether in the way that’s been accomplished 27 times or by a convention.  “Blues” want to repeal Citizens United; most of the Second Amendment (except the part that lets Junior get a .22 to shoot squirrels, gophers and stop signs); the electoral college, which they view as a vestige of the Holy Roman Empire; and that part which gives Wyoming just as many senators as California.

“Reds” would like a balanced budget amendment, the right to say prayers in public schools, a return to the selection of U.S. Senators by state legislatures, and a provision defining human life as beginning at conception and outlawing abortion.

The irony is that most of these things are doable right now with a willing Congress and a Supreme Court determined to rule “your way.”

David Strauss of the University of Chicago Law School wrote a very clever piece called “How We Change the Constitution (Hint: It’s Not By Amending It)” (National Constitution Center, 2022) in which he says that very important things happen even when the constitutional text stays the same. Congress, the President and the Courts and the people change understandings, and this has changed a lot over time!

Strauss notes that several amendments were added after change had already taken place in many places in America, pointing to the 17th Amendment (selection of the Senate by direct election), a method already adopted by most states before the adoption of the change by formal amendment.

The good professor also states that some changes have happened even without the ratification of a new amendment. He points to the ERA which has never yet been adopted.  But the Supreme Court has ruled, nevertheless, that sex discrimination is forbidden.

A lot of Strauss’ discussion really means that it matters who controls the courts and, probably how many people serve at a time (court “packing”?) not to mention whether there ought to be limits to terms for Scotus.

Let’s look at two other issues.  First, whether the Constitution is too hard to amend; second, what the heck is the Ninth Amendment all about?

Writers throughout American history have reminded readers that the Constitution is supposed to be hard to amend so that political opportunists don’t try to make it like the Alabama state constitution, with 892 amendments and 376,000 words. One suggestion to ease the process calls for ratification by “only” 2/3 of the states. This is by an editor of Politico Magazine (Jan. 8, 2022) and former Justice Department official in the Trump Administration, Sarah Isgur! Let the discussion continue.

Finally, from the murky recesses of the beloved document, focus on the Ninth Amendment and try to figure out what it means:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Some might say that America doesn’t need suggested rights via amendment, because they already exist and just have to be extracted from “The Ninth.” I asked my students to identify rights guaranteed by the provision. They snuck a look into some version of “Con Law for Idiots” and pronounced, “The Right to Travel,” or “The Right of Privacy” or “The Right to Marry Anyone You Want.”

The Court has been of absolutely no help in this business, except with oblique rulings like Crandall v. Nevada (1868) and isn’t likely, in its present composition, to reinforce such “penumbral” doctrines as announced in the likes of Griswold v. Connecticut (1965).

Then, too, Congress could get some guts and wipe out Citizens United or even act on some of the tepid suggestions of the Biden Supreme Court Commission.  You guessed it. Congress is too dysfunctional to act on urgent matters of constitutional moment, whereas, black-robed activists across First Street SE are most likely to erase Roe v. Wade, and the School Prayer Decisions of the 1960s and even constitution-like protections such as Miranda v. Arizona (see, Vega v. Tekoh, argued April 20, 2022, and Kennedy v. Bremerton S.D., argued April 25, 2022).

Our Constitution is alive and well, not the rigid set-in-stone thing some originalists would want and not the wholly fluid “suggestions” some ultra-libs would favor. Let’s celebrate it this Law Day!

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.