Constitutional Amendment

Constitutional Amendment

The means by which an alteration to the U.S. Constitution, whether a modification, deletion, or addition, is accomplished.

Article V of the U.S. Constitution establishes the means for amending that document according to a two-step procedure: proposal of amendments, followed by ratification. Amendments may be proposed in two ways: by a two-thirds vote of both houses of Congress or by a special convention summoned by Congress on the petition of two-thirds (34) of the state legislatures.

In the long history of the U.S. Constitution, over 5,000 amendments have been introduced in Congress. Only 33 of these have been formally proposed by Congress, and none has ever been proposed by a special convention.

No matter which method is used for the proposal of a constitutional amendment, Congress retains the power to decide what method will be used for ratification: approval of three-fourths (38) of the state legislatures, or approval of three-fourths (38) of special state conventions. Congress may also place other restrictions, such as a limited time frame, on ratification.

Of the 33 amendments proposed by Congress, 27 were ratified. Of the amendments ratified, only one—the Twenty-First Amendment, which repealed a Prohibition on alcohol—was ratified by the state convention method. The rest have been ratified by three-fourths of the state legislatures.

The process for amending the Constitution is deliberately difficult. Even when an amendment is proposed by Congress, it has taken, on average, two-and-a-half years for it to be ratified. That difficulty creates stability, with its accompanying advantages and disadvantages. The advantages lie in the fact that the Constitution's provisions are not subject to change according to the whims of a particular moment. The disadvantages inhere in the reality that the Constitution must also adapt and be relevant to a changing society. Given the difficulty of amendment, much of the burden of adapting the Constitution to a changing world has fallen on the shoulders of the Supreme Court and its powers of Judicial Review, which have been described as an informal method of changing the Constitution. However, constitutional amendments may in turn modify or overturn judicial opinion, as was the case with the Eleventh, Thirteenth, Fourteenth, Sixteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments.

Commentators have also pointed out that the amendment process is not a very democratic one. As the constitutional scholar edward s. corwin wrote: "A proposed amendment can be added to the Constitution by thirty-eight states containing considerably less than half of the population of the country, or can be defeated by thirteen states containing less than one-twentieth of the population of the country."

Brief History of Constitutional Amendments

Before the creation of the U.S. Constitution in 1787, constitutional amendments had already been instituted as part of several early state constitutions. The pioneering framers of these state constitutions recognized the need to incorporate an element of flexibility into Constitutional Law, and they provided for constitutional amendment through the legislature or through special conventions. However, the first national Constitution of the United States, the Articles of Confederation, did not have such flexibility. Amendment of that document required a unanimous vote of Congress, nearly impossible to achieve.

The Framers of the U.S. Constitution sought to avoid the inflexibility of the Articles of Confederation. James Madison, one of the principle architects of the Constitution, argued in The Federalist Papers that the new compact's amendment procedures, unlike those of the old Articles, protected "equally against that extreme facility, which would render the Constitution too mutable, and that extreme difficulty, which might perpetuate its discovered faults."

Proving the truth of Madison's contention, the first ten amendments to the Constitution were passed as a package by the first session of Congress in 1791. This group of amendments is called the Bill of Rights. The Bill of Rights fulfilled a promise that the backers of the Constitution, known as the Federalists, had made during the ratification procedure of the Constitution. It guarantees specific liberties relating to (1) rights of conscience, including the freedoms of speech, press, religion, and peaceable assembly (First Amendment); (2) rights of the accused, including freedom from "unreasonable searches and seizures" (Fourth Amendment), freedom from compulsory Self-Incrimination (Fifth Amendment), the "right to a speedy and public trial, by an impartial jury" and with legal counsel (Sixth Amendment), and freedom from "excessive bail" and "cruel and unusual punishments"(Eighth Amendment); and (3) rights of property, including freedom from seizure of property without "due process of law" (Fifth Amendment).

Subsequent amendments have dealt with many different issues, including the extent of federal judicial jurisdiction (Eleventh Amendment [1795]), the method of electing the president (Twelfth Amendment [1804]), the Abolition of Slavery (Thirteenth Amendment [1865]), legalization of the Income Tax (Sixteenth Amendment [1913]), granting women the right to vote (Nineteenth Amendment [1920]), presidential succession (Twenty-Fifth Amendment [1967]), and the voting age (Twenty-Sixth Amendment [1971]).

The Fourteenth Amendment (1868), which holds that no state shall "deprive any person of life, liberty, or property, without Due Process of Law; nor deny to any person … the Equal Protection of the laws," has arguably been the most important and far-reaching of all the amendments, particularly with regard to its Due Process and Equal Protection Clauses. Through the Fourteenth Amendment, most of the provisions of the Bill of Rights were eventually applied to the states.

In 1972, the Equal Rights Amendment (ERA) was formally proposed by Congress. The ERA, which would have forbidden discrimination on the basis of sex, failed to gain ratification within the seven-year deadline proposed by Congress, even after a 39-month extension through June 30, 1982.

Further readings

Amar, Akhil R. 2000. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale Univ. Press.

Antieau, Chester James. 1995. A U.S. Constitution for the Year 2000. Chicago, IL: Loyola.

Chase, Harold W., and Craig R. Ducat, eds. 1978. "Article V." In The Constitution and What It Means Today, by Edward S. Corwin. 14th ed. Rev. Harold W. Chase and Craig R. Ducat. Princeton: Princeton Univ. Press.

Gilbert, Robert E., ed. 2000. Managing Crisis: Presidential Disability and the Twenty-fifth Amendment. Bronx, N.Y.: Fordham Univ. Press.

Gonzalez, Carlos E. 2002. "Popular Sovereign Generated Versus Government Institution Generated Constitutional Norms: When Does a Constitutional Amendment Not Amend the Constitution?" Washington University Law Quarterly 80 (spring): 127–242.

Harrigan, John J. 1984. Politics and the American Future. Reading, Mass.: Addison-Wesley.

Kohn, Bernice. 1974. The Spirit and the Letter: The Struggle for Rights in America. New York: Viking Penguin.

Palmer, Kris E., ed. 2000. Constitutional Amendments, 1789 to the Present. Detroit: Gale Group.

Strauss, David A. 2001. "The Irrelevance of Constitutional Amendments." Harvard Law Review 114 (March): 1457–1505.

Vile, John R. 2003. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2002. 2d ed. Santa Barbara, Calif.: ABC-CLIO.

Cross-references

Constitution of the United States.