Today’s Topic: Constitution 101 – Amending the Constitution
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
This is the 14th installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.
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A More Perfect Union
The Constitution of the United States is one of the most remarkable and influential documents in human history. If you’ve been listening to my series about the Constitution, I hope you’ll agree that it deserves that reputation. However, the Constitution is not a static document that must be preserved without alteration. To the contrary, the framers of the Constitution envisioned that the document would need the occasional update and devoted an entire section – Article V – to explaining the mechanics of updating the Constitution.
Two Methods to Amend
Article V provides two methods for initiating constitutional amendments. The first method starts with Congress. If two-thirds of both Houses approve an amendment, it will be submitted to the states for ratification.
An Amending Convention?
But there is an alternative. If two-thirds of the state legislatures apply to Congress for a Convention to propose amendments, then Congress is obliged to call such a convention. The convention could then propose various amendments. Under either method – Congress or Convention – a proposed amendment does not become part of the Constitution until it has been ratified by three-fourths of the states, either by vote of the state legislatures, or by state ratification conventions.
So far, only the Congressional method has been successful. Of the twenty-seven amendments that have been ratified, all of them started in Congress. Congress has come close to calling for an amending convention, most recently in the early 1980s when thirty two states applied for a convention to consider a balanced budget amendment – just two states shy of the two-thirds needed. Today, there is a grass roots movement to promote an Article V convention.
The Bill of Rights
The most famous amendments are the first ten, dubbed the “Bill of Rights” after a somewhat similar charter of liberties drawn up by the English Parliament in 1689. Oddly enough, Congress originally recommended a slate of eleven amendments, but one of them did not get ratified with the others. It was resurrected two centuries later and ratified as the twenty-seventh amendment on May 7, 1992. It says that if Congress votes itself a pay raise, it can’t take effect until after the next election.
The Post Civil War Amendments
The Thirteenth, Fourteenth, and Fifteenth Amendments were ratified in 1868 and were designed to ensure that the newly-freed slaves would enjoy equal rights with all other Americans. However, the amendments are generally drafted in race-neutral language, and they have been used to enforce a wide array of rights against state infringement.
Other Amendments, Good and Bad
Most of the remaining amendments deal not with rights, but with the structure of the federal government. It is because of the seventeenth amendment that we get to vote directly for our senators, rather than having them picked by the state legislatures, and it is because of the Sixteenth Amendment that Congress can impose an income tax, which was not part of the original plan. As for least successful amendment, the prize has to go to the Eighteenth – the Prohibition Amendment – which was ratified in 1919, and outlawed all “intoxicating liquors.” In 1933, the Twenty-first Amendment repealed the Eighteenth, putting an end to the era of bootleg liquor and the “speakeasy.”
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