Republicans Should Use Article 5 To Protect Our Institutions

Authored by Ryan Silverstein via RealClearPolitics,

In November, President Trump and Republicans won a broad mandate to govern. Consequently, Democrats are now seeking refuge in traditions and institutions they once sought to destroy – the Senate filibuster and courts of law. President Trump and Republicans should seize this opportunity to use Article 5 of the U.S. Constitution to protect these institutions for generations to come.

Article 5 provides a two-step process for amending our Constitution. First, an amendment must be proposed. Under Article 5, there are two ways for proposing an amendment to the Constitution: (1) an amendment passes by two-thirds of each chamber of Congress, or (2) two-thirds of state legislatures call for a constitutional convention and two-thirds of the delegates support an amendment. Once an amendment is proposed, three-fourths of states must ratify it for it to become law. Since there are fifty states, that means to change our constitution, 38 states must ratify an amendment.

In the 2024 election, President Trump carried 31 states. Moreover, Republicans control the state legislatures in 26 states, including some states Trump lost, like New Hampshire. Moreover, they flipped one chamber of state legislatures in Minnesota, Michigan, and Pennsylvania. They also made inroads in deep blue states like Maine and ended the Democratic supermajority in Vermont. From the top of the ticket to the bottom of the ballot, the country shifted right. President-elect Trump and Republicans should seize this opportunity to push for constitutional amendments that protect key norms and institutions from future attacks.

First, Republicans should support an amendment constitutionalizing the Senate filibuster for all legislation, excluding spending bills from the House. The filibuster – a Senate procedural mechanism that requires 60 votes for legislation to be passed – plays a key role in requiring bipartisan cooperation in the Senate. It has been used by both parties to prevent radical legislation from becoming law.

While Democrats recently found support for the filibuster, there is a movement on the left calling to abolish it. For example, in 2022, Democrats tried to kill the filibuster. This effort only failed because independent Sens. Joe Manchin and Kyrsten Sinema voted against the filibuster-killing plan. In August, Senate Majority Leader Chuck Schumer expressed a desire to change the filibuster again so Democrats could have an easier time passing legislation. Democrats clearly only value the filibuster when they’re in the minority – but have no issue destroying it when they control the Senate. Adding the filibuster to the Constitution would preserve bipartisan cooperation and debate in the Senate, ensuring it remains the “greatest deliberative body in the world.”

Second, Republicans should back an amendment that sets the size of the Supreme Court at nine justices. Currently, the Constitution does not set the size of the Supreme Court. Democrats have spent years undermining the Court’s integrity to justify expanding it. Other Democrats like President Joe Biden claim the historically low public approval of the Supreme Court shows there is a need to reform our highest court. Yet, the Supreme Court still has higher approval ratings than Congress and President Biden. Moreover, the Supreme Court still has higher public confidence than Congress or the presidency.

The court’s size has not been changed since 1869 when Congress set the size at nine. The court’s size remaining at nine has played a key part in allowing the court to maintain the public’s support and its independence. When President Franklin Delano Roosevelt tried to expand the court in 1937, he failed because the public viewed his attempt at expanding the Court as an attack on a sacrosanct institution. There is a long institutional and democratic tradition of nine justices, which has allowed our highest court to remain isolated from the political fray. Alexander Hamilton famously defended an independent judiciary insulated from politics in Federalist Paper No. 78, where he argued liberty would be extinguished if the judicial power were co-opted by the executive or legislative branches. Hamilton’s fear may become reality as Democrats may push for more justices when they retain power – especially if President Trump gets to appoint more justices.

Adding more seats would destroy the public’s trust in any decision rendered by changing the public’s perception of justices to politicians in robes instead of neutral arbiters of law. Enshrining the number of Supreme Court justices in the Constitution would preserve the high court’s independence from political pressures and ensure the public’s trust in our independent judiciary isn’t destroyed.

President Trump and Republicans should utilize their momentum and get Congress to propose an amendment or pressure state legislatures to call a convention of states. Doing so will preserve core American institutions for years to come.

Ryan Silverstein is a J.D. candidate at Villanova University and a fellow with Villanova’s McCullen Center for Law, Religion and Public Policy. His work has previously appeared in the New York Daily News, Post & Courier, and the Las Vegas Review-Journal.