AMENDING THE CONSTITUTION

1. AMENDING THE CONSTITUTION Topic #9

2. Study Guide Questions 1and 2 Q1. Why might we want to amend the Constitution? What is the relationship between the amendment process and the idea of “consent of the governed”? Q2. What are the four different procedural routes available for amending the Constitution? How often has each route been used?

3. Article V • 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 Consti-tution, when ratified by the Legislatures of three fourths of the several States, orby Conventions in three fourths thereof, 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 [Commerce compromise]; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

4. Four Routes For Constitutional Amendments

5. Constitutional Amendments • Congress proposes amendments directly to the states; such proposals are not subject to a Presidential veto. • Neither the President nor the Supreme Court has any formal role in the constitutional amendment process. • The equal representation of states in the Senate cannot be changed even by constitutional amendment if a single state objects. • Route (1) has been used for all constitutional amendments except Amendment 21 (repeal of prohibition), which used Route (2) • Note that Route (4) is essentially the way the Constitution itself was proposed and ratified (except that state legislatures did not formally petition Congress to call the convention that drafted the Constitution).

6. A New Constitutional Convention? • The second procedure for proposing amendments (i.e., calling a constitutional convention upon petitions from two-thirds of the state legislatures) has never been used. It raises (at least) two procedural questions: • If petitioned by the requisite number of states, is Congress obligated to call such a convention? [Probably yes] • Can Congress restrict the scope of the amendments that the convention might propose to particular subjects? • Fears have been expressed about a “runaway” convention that, charged with drafting one or more amendments, might propose wholesale changes in the Constitution. • Recall that the original Federal Convention, convened only to propose amendments to the Articles of Confederation, could be deemed a “runaway” convention in this sense.

7. Other Procedural Questions • Can a state that has ratified a proposed amendment rescind (take back) its ratification (before the amendment has been ratified by the requisite number of states and incorporated into the Constitution)? • Is there (or should there be) some requirement for contemporaneity in the amendment process, such that an amendment must be proposed and ratified within in relatively short period of time? • Amendment 27 -- No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. • Proposed in 1789, ratified in 1992. • This was one of twelve amendments proposed by Congress in 1789 to fulfill the promise made by the Federalist advocates of the Constitution that, if the Constitution were ratified, its amending procedure would be used promptly to attach a Bill of Rights to the Constitution. • Ten were quickly ratified by the states and are now known as the Bill of Rights, one (dealing the "ratio of representation" for the House of Representatives) was never ratified, and the last became the 27th Amendment more than 200 years after being proposed by Congress.

8. Procedural Questions (cont.) • In proposing the Eighteenth (Prohibition) amendment in 1919 and in all amendments since 1933, Congress has stipulated that an amendment would fail unless ratified within seven years. • At first, Congress put this stipulation in the text of the proposed amendment (see Amendments 18, 20, 21, 22).  • Subsequently, Congress put the stipulation in the text of the accompanying resolution. • But controversy arose over the ratification time limit for the (failed) Equal Rights [for Women] Amendment (ERA) proposed in 1972. • So the stipulation was put back in the text of the amendment in the subsequent (failed) DC voting power proposed amendment.

9. Amendment XVIII • Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. • Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. • Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.

10. Chronology of Amendments • Most amendments have been proposed and ratified in distinct historical clusters: • soon after establishment of the federal government (the Bill of Rights amendments discussed above and two others shortly thereafter); • the immediate post-Civil War period; • "progressive period" early in the 20th century; and • the "second progressive period" of 1960s. • The post-Civil War amendments (the 14th Amendment in particular) are by far the most important — so much so that this period is sometimes referred to as the “second founding” of the U.S. government. • The 14th Amendment will be discussed at some length in subsequent topics.

11. Subject Matter of Amendments • Amendments can grouped with respect to their effects: • to secure basic rights and liberties (1-10, 13, 14); • to extend voting rights mandated by the Constitution (15, 19, 23, 24, 26); • to change terms, modes of elections, etc., of various offices (12, 17, 20, 22, 25); • to reverse controversial Supreme Court decisions (11, 14 [Dred Scott v. Sanford], 16); and • to enact and repeal prohibition (18, 21)

12. Failed Amendments • Hundreds of additional amendments have been proposed by individual members of Congress or state legislatures, several dozen of which have had significant support. • But only six amendments have been proposed by Congress and then failed to be ratified. • In addition to the two already mentioned (the “ratio of representation” and ERA amendments), these include: • an amendment proposed in the early 19th Century that would have further restricted acceptance by U.S. citizens of titles of nobility and similar honors from foreign governments; • an amendment proposed on the eve of the Civil War that would have prohibited any subsequent amendment that would empower Congress to make any law that would “abolish or interfere ... with ... the domestic institutions” (e.g., slavery) of any state; • an amendment proposed early in the 20th century that would have explicitly empowered Congress to regulate (and prohibit) child labor; and • an amendment proposed in the 1970s that would have granted federal voting power to the District of Columbia as if it were a state.

13. Recent and Current Pending Amendments • There have been many other attempts to propose constitutional amendments, often to reverse contro-versial Supreme Court decisions (as several successful amendments also have done). Recent and pending attempts to amend the constitution pertain to following topics: • to reverse the Supreme Court's abortion decision Roe v. Wade (or to encode it in explicit constitutional language); • to reverse (or modify) the Supreme Court's school prayer decision (Engle v. Vitale); • to reverse the Supreme Court's “flag burning” (“symbolic speech”) decision (Texas v. Johnson); • to mandate a balanced budget and/or tax and spending limits; • to give the President an item veto (allowing the President to veto only parts of a bill); • to modify or abolish the Electoral College for electing the President;

14. Pending Amendments (cont.) • to change the President's term of office (e.g., to a single six-year term); • to impose term limits on members of Congress; • to abolish the Presidential term limit (i.e., to repeal the 22nd Amendment); • to repeal the 16th Amendment and specifically prohibit any federal income tax; • to make English the official language of the United States; • to establish judicial terms of office (or to require the periodic reconfirmation of federal judges); • to guarantee “victims’ rights” in criminal proceedings; • to limit the President’s pardon power; • to provide a new method for proposing amendments to the Constitution, whereby two-thirds of all state legislatures could propose amendments (without Congressional action); and most recently • to define marriage so as to prohibit same-sex marriage.