AMENDING THE CONSTITUTION (Summary and Extension)

         Article V of the Constitution specifies two procedures for proposing amendments and two procedures for ratifying proposed amendments, giving four different routes to attach amendments to the constitution. These procedures, and how often each has been used, are summarized in Figure 2-3 on p. 61of the Kernell & Jacobson text. Note that Congress proposes amendments directly to the states and 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. Note also that the equal representation of states in the Senate cannot be changed even by constitutional amendment and that states have equal power regardless of population in the ratification process

         The second procedure for proposing amendments (i.e., calling a constitutional convention upon petitions from two-thirds of the state legislatures) has never yet been used. It raises (at least) two procedural questions:

         (1)     If petitioned by the requisite number of states, is Congress obligated to call such a convention? (Probably it is obligated to do so.)

       (2)     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. As you know, the original Federal Convention, convened only to propose amendments to the Articles of Confederation, was a “runaway” convention in this sense.)

         There are other unanswered procedural questions pertaining to the amendment process.

         (1)     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)?

         (2)     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?

         The relevance of the latter question was highlighted by the ratification of the 27th Amendment in 1992. (This amendment provides that, when Congress passes a law raising its own pay, the raise cannot take effect until after the next election.) This amendment was one of twelve drafted primarily by James Madison and 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 of these proposed amendments 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.

         To deal with the problem of contemporaneity, in proposing the Eighteenth (Prohibition) amendment in 1919 and in all amendments since 1933, Congress has stipulated that the amendment would fail unless it is ratified within seven years. At first, Congress put this stipulation in the text of the proposed amendment (see final sections of 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 (see Kernell & Jacobson, pp. 146-149).

         Amendments have not been attached to the Constitution with anything uniform frequency; mostly they have been proposed and ratified in distinct historical clusters:

         (1)     soon after establishment of the federal government (the Bill of Rights amendments discussed above and two others shortly thereafter);

         (2)     the immediate post-Civil War period;

         (3)     the "progressive period" early in the 20th century; and

         (4)     the "second progressive period" of 1960s.   

        The post-Civil War amendments (and the 14^th 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 14^th Amendment will be discussed at some length in subsequent classes.

         Amendments can also be grouped into several distinct clusters 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)

         —        to enact and repeal prohibition (18, 21)

         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 19^th 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.

         There have been many 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:

          —        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;

          —        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 22^nd 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; and most recently

         —        to define marriage so as to prohibit same-sex marriage.