|Constitutional Amendments - The U.S. Constitution Online - USConstitution.net|
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.
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:
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 ):
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.
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