AMENDING THE CONSTITUTION

1. AMENDING THE CONSTITUTION

2. 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 Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

3. Four Routes For Constitutional Amendments

4. Constitutional Amendments Route 1 • Congress proposes amendments directly to the states; these 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 amendmentif a single state objects.

5. Constitutional Amendments :Route 1 • The Congress proposes an amendment in the form of a joint resolution. • The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. • The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

6. Constitutional Amendments :Route 1 • The Archivist submits the proposed amendment to the States by sending a letter of notification to each Governor. • The Governors then formally submits the amendment to their State legislatures. • When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. • The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

7. A New Constitutional Convention? • Route 2 (calling a constitutional convention upon petitions from 2/3 of the state legislatures) has never been used. It raises two procedural questions: • If petitioned by the requisite number of states, is Congress obligated to call such a convention? [Probably yes]

8. A New Constitutional Convention? It raises two procedural questions: • 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 might propose wholesale changes in the Constitution.

9. 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)?

10. Other Procedural Questions Is there some requirement for time period in the amendment process, such that an amendment must be proposed and ratified within a 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.

11. Other Procedural Questions • Amendment 27 was one of twelve amendments proposed in 1789 to fulfill the promise made by the Federalist advocates of the Constitution. • Ten were quickly ratified (1791)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

12. 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.

13. 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 and two others shortly thereafter)-- #1-12 • immediate post-Civil War period-- #13-15 • "progressive period" early in the 20th century-- #17-19 • the "second progressive period" of 1960s-- #23-26

14. Chronology of Amendments The post-Civil War amendments (the 14th Amendment in particular) are the most important — so much so that this period is referred to as the “second founding” of the U.S. government • 13th, 14th, 15th

15. 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.

16. Failed Amendments 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 1800’s that would have further restricted acceptance by U.S. citizens of titles of nobility and similar honors from foreign governments

17. Failed Amendments • An amendment proposed on the eve of the Civil War that would have prohibited any future amendment that would empower Congress to make any law that would “abolish or interfere ... with ... the domestic institutions” (e.g., slavery) of any state

18. Failed Amendments • An amendment proposed early in the 20th century that would have explicitly empowered Congress to regulate (and prohibit) child labor • An amendment proposed in the 1970s granting federal voting power to the District of Columbia as if it were a state

19. Recent and Current Pending Amendments There have been other attempts to propose constitutional amendments, often to reverse controversial Supreme Court decisions (as several successful amendments also have done). Recent and pending attempts to amend the constitution pertain to following topics:

20. Recent and Current Pending Amendments • to reverse Roe v. Wade • abortion • to reverse/modify Engle v. Vitale • School prayer • to reverse Texas v. Johnson • Flag burning (symbolic speech) • to mandate a balanced budget and/or tax and spending limits

21. Recent and Current Pending Amendments • to modify/abolish the Electoral College for electing the President • to change the President's term of office • to a single six-year term • to impose term limits on members of Congress • to abolish the Presidential term limit • to repeal the 22nd Amendment

22. Pending Amendments (cont.) • to repeal the 16th Amendment • prohibit any federal income tax • to make English the official language of the United States • to establish judicial terms of office • to require the periodic reconfirmation of federal judges

23. Pending Amendments (cont.) • to guarantee “victims’ rights” in criminal proceedings • to limit the President’s pardon power • to provide a new way for proposing amendments to the Constitution, (2/3 of all state legislatures could propose amendments (without Congressional action) • to prohibit same-sex marriage