Voters have never been empowered under the federal Constitution to directly enact laws or constitutional amendments, and have no power through referendum or any other process to prove their likes and dislikes. The United States Constitution simply cannot be compared to Ohio’s Constitution in terms of the amendment process.
Popular democracy (i.e., initiatives and referenda) was not favored by the Framers of the federal Constitution. They preferred a “republican,” representative, form of government, explicitly saying so in Article IV’s “Guarantee Clause” (“the United States shall guarantee … a Republican form of government”). Voters, to the extent they played a part under the original federal Constitution (they were not allowed to elect Senators or necessarily presidential electors, after all), only did so derivatively through elected representatives in the federal House of Representatives.
Ohio’s popular initiative, in contrast, was enacted in 1912 as part of a “progressive” wave of election reforms (that also included secret ballots and political party primaries) that swept the country at the turn of the twentieth century. The intent behind these reforms was to provide people more voice in American governance, something that the federal Constitution squarely rejected.
The federal Constitution’s amendment process, found in Article V, reflects its rejection of popular sovereignty. Constitutional amendments are proposed by members of Congress (or State legislatures when two-thirds join in calling for a convention), with support of two-thirds of the members in both houses to then send proposals to the States for ratification. Three-quarters of the States’ legislatures (or State conventions if Congress chooses) must ratify. None of this relies on a popular vote, let alone one exceeding a simple majority.
To the extent there can be a comparison, far from requiring a super-majority of voters the federal amendment process allows constitutional changes with less than majority popular support. Each representative in Congress, after all, is required only to have simple majority (at most since in most States a simple plurality will do) support among his or her constituents. Multiplying this simple-majority figure, which is the equivalent of one-half-plus-one) by Article V’s two-thirds requirement means that a constitutional amendment may be proposed with the support of only one-third (1/2 times 2/3 equals 1/3) of the nation’s voters. Half of the voters in two-thirds of the States can thus propose a federal constitutional amendment even if every other voter in the nation opposes it.
Similarly, because only a simple majority of a State’s legislator’s constituents need to support him or her, a three-fourth’s majority State legislative vote in favor of ratification under Article V can be achieved with only three-eighth’s (1/2 multiplied by ¾ equals 3/8) popular support. That, too, is less than a majority. Consequently, a federal constitutional amendment can be proposed by Congress with less than majority support among voters and be ratified with less than majority support, too.
Does it happen? Have federal constitutional amendments been ratified with less than a majority of the nation’s voters offering support? Certainly, as proved by the Eighteenth Amendment, which banned liquor production and ushered in Prohibition beginning in 1920. Historians tend to agree that “[t]he vast majority of the population did not want it.” There was no popular vote, of course, but if there were the Eighteenth Amendment would have failed miserably under any definition of majority (including Ohio’s current simple majority requirement).
In terms of initiative that qualify for ballots, Ohio, like most states that recognize popular initiatives, has since 1912 required only simple-majority support among its voters in order to amend its Constitution. When coupled with the arduous process for proposing constitutional amendments, Ohio’s process has since 1912 worked well. Change is not needed.
Mark Brown is the Newton D. Baker/Baker & Hostetler Chair at Capital University.