Constitutional Amendments
Amending the United States Constitution is no small task. This page
will detail the amendment procedure as spelled out in the Constitution,
and will also list some of the Amendments that have not been passed,
as well as give a list of some amendments proposed in Congress during
several of the past sessions.
- The Amendment Process
- “Informal Amendment”
- Popular Amendment
- History behind the ratified Amendments
- Ratification dates of the ratified Amendments
- The Failed Amendments
- Some Proposed Amendments
There are essentially two ways spelled out
in the Constitution for how to propose an amendment. One has never been
used.
The first method is for a bill to pass both houses of the legislature, by a
two-thirds majority in each. Once the bill has passed both houses, it goes on
to the states. This is the route taken by all current amendments. Because of
some long outstanding amendments, such as the
27th, Congress will normally put a time limit (typically seven years) for
the bill to be approved as an amendment (for example, see the 21st and 22nd).
The second method prescribed is for a Constitutional Convention to be called
by two-thirds of the legislatures of the States, and for that Convention to
propose one or more amendments. These amendments are then sent to the states
to be approved by three-fourths of the legislatures or conventions. This route
has never been taken, and there is discussion in political science circles
about just how such a convention would be convened, and what kind of changes it
would bring about.
Regardless of which of the two proposal routes is taken, the amendment must
be ratified, or approved, by three-fourths of states. There are two ways to do
this, too. The text of the amendment may specify whether the bill must be
passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of
the make up of a convention. Amendments are sent to the legislatures of the
states by default. Only one amendment, the 21st,
specified a convention. In any case, passage by the legislature or convention
is by simple majority.
The Constitution, then, spells out four paths for an amendment:
- Proposal by convention of states, ratification by state conventions (never
used) - Proposal by convention of states, ratification by state legislatures
(never used) - Proposal by Congress, ratification by state conventions (used once)
- Proposal by Congress, ratification by state legislatures (used all other
times)
It is interesting to note that at no point does the President have a role in
the formal amendment process (though he would be free to make his opinion
known). He cannot veto an amendment proposal, nor a ratification. This point
is clear in Article 5, and was reaffirmed by the Supreme Court in
Hollingsworth v Virginia (3 US 378 [1798]):
The negative of the President applies only to the ordinary cases
of legislation: He has nothing to do with the proposition, or adoption, of
amendments to the Constitution.
Another way the Constitution’s meaning is changed is often referred to as
“informal amendment.” This phrase is a misnomer, because there is no way to
informally amend the Constitution, only the formal way. However, the
meaning of the Constitution, or the interpretation, can change over
time.
There are two main ways that the interpretation of the Constitution changes,
and hence its meaning. The first is simply that circumstances can change. One
prime example is the extension of the vote. In the times of the Constitutional
Convention, the vote was often granted only to monied land holders. Over time,
this changed and the vote was extended to more and more groups. Finally, the
vote was extended to all males, then all persons 21 and older, and then to all
persons 18 and older. The informal status quo became law, a part of the
Constitution, because that was the direction the culture was headed. Another
example is the political process that has evolved in the United States:
political parties, and their trappings (such as primaries and conventions) are
not mentioned or contemplated in the Constitution, but they are fundamental to
our political system.
The second major way the meaning of the Constitution changes is through the
judiciary. As the ultimate arbiter of how the Constitution is interpreted, the
judiciary wields more actual power than the Constitution alludes to. For
example, before the Privacy Cases, it was perfectly constitutional for a state
to forbid married couples from using contraception; for a state to forbid
blacks and whites to marry; to abolish abortion. Because of judicial changes
in the interpretation of the Constitution, the nation’s outlook on these issues
changed.
In neither of these cases was the Constitution changed. Rather, the way we
looked at the Constitution changed, and these changes had a far-reaching
effect. These changes in meaning are significant because they can happen by a
simple judge’s ruling and they are not a part of the Constitution and so they
can be changed later.
One other way of amendment is also not mentioned in the Constitution, and,
because it has never been used, is lost on many students of the Constitution.
Framer James Wilson, however, endorsed popular amendment, and the topic is
examined at some length in Akhil Reed Amar’s book, The Constitution: A
Biography.
The notion of popular amendment comes from the conceptual framework of the
Constitution. Its power derives from the people; it was adopted by the people;
it functions at the behest of and for the benefit of the people. Given all
this, if the people, as a whole, somehow demanded a change to the Constitution,
should not the people be allowed to make such a change? As Wilson noted in
1787, “… the people may change the constitutions whenever and however they
please. This is a right of which no positive institution can ever deprive
them.”
It makes sense – if the people demand a change, it should be made. The
change may not be the will of the Congress, nor of the states, so the two
enumerated methods of amendment might not be practical, for they rely on these
institutions. The real issue is not in the conceptual. It is a reality that
if the people do not support the Constitution in its present form, it cannot
survive. The real issue is in the practical. Since there is no process
specified, what would the process be? There are no national elections today –
even elections for the presidency are local. There is no precedent for a
national referendum. It is easy to say that the Constitution can be changed by
the people in any way the people wish. Actually making the change is another
story altogether.
Suffice it to say, for now, that the notion of popular amendment makes
perfect sense in the constitutional framework, even though the details of
effecting popular amendment could be impossible to resolve.