united-states constitutional-law
Could a new US constitution be ratified by an absolute popular vote?
<p>It is well known that the US constitution is very hard to amend, and that topics with a good overall popular approval are impossible to get in the constitution, like abortion or gay marriage.</p>
<p>I am French, a culture where constitutions come and go, based on the principle that whatever is voted on by a referendum becomes the law of the land, and overrides anything it needs to.</p>
<p>Could such a thing be done in the USA, or are things such as abortion or as many senators for Wyoming and California settled forever?</p>
<p>In other words, is there principles of law more important than the current constitution, such as the right of self-determination ?</p>

<p>There are two ways to change a constitution:</p>
<ul>
<li><p>Through amendments to the current constitution.</p>
</li>
<li><p>By starting a new constitution.</p>
</li>
</ul>
<p>When you start a new constitutional process from scratch, its legitimacy will not depend on the provisions of the old constitution. This process will develop <strong>outside</strong> the framework established by existing laws.</p>
<p>You could say that the constitution is self-affirming: its legitimacy cannot come from any law because there are no laws higher than the constitution.</p>
<p>From that point on everything could be (theoretically) possible as a way to legitimate the new constitution: a referendum (in the multiple varieties that it could be present), approval by an assembly, military intervention...
The success or not of a new constitution would depend on the forces that support and oppose it.</p>

<p>There is only one codified process to amend the US Constitution and it does not involve a popular vote:</p>
<blockquote>
<p>The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, <strong>when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof</strong>, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.</p>
</blockquote>
<p>It is possible the states themselves could agree to a compact wherein they would be willing to pass amendments which are proposed and win a majority popular vote nationally or within each of their states, similar to the idea of the <a href="https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact" rel="nofollow noreferrer">National Popular Vote Interstate Compact</a>, using the Constitutional Convention provision of Article 5.  This would still be restrained by the general prohibitions on what can be changed in the Constitution, which at this time is only the protection of Senate representation for each state.</p>

<p>The US constitution is binding on the laws of all states, and is meant to moderate state vs federal rights and other issues. For abortion, the supreme court recently sent the decision back to the states, and places like Wyorming don't like abortion as much, and so are more likely to ban it while places like California like abortion and so will keep it legal.</p>
<p>If states with large populations which liked abortion like California voted to allow abortion in Wyorming, Wyorming would just ignore them. As other posters have noted there is a process to modify the consitution which isn't a popular vote. State rights are considered more important in America than France, and so there are no national referendums to override state rights.</p>
