Amending the United States Constitution
The Amendment Provisions of the US Constitution's Article V
Jul 12, 2009
The Founding Fathers worked hard to come up with a Constitution that could stand the test of time. They had both the foresight and humility to know that with changing times there would be a need to change the charter for the US government.
The US Constitution Article V, the Amendment Process
Understanding that future eras would bring different issues, challenges, and, the Founding Fathers created an amendment process by which the Constitution could be altered. Article V of the Constitution defines this process as follows:
“The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid, to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”
Two Methods of Proposing Amendments
Pursuant to Article V, amendments may be proposed in two ways. The first, and only method that has been used to date, is for two-thirds of each House of Congress to pass an Amendment resolution and send it to the States for ratification. The President, whose position is defined in Article II, has no official role in the amendment process.
The second method is for two-thirds of the State legislatures to direct Congress to call a Constitutional Convention, for the proposing of Amendments. This method has never been used, though its existence is credited with ultimately passing the 17th Amendment providing for the popular election of Senators.
Originally, Senators were largely chosen by State legislatures and not by the direct vote of the people. There was a movement to change to direct election, but the Constitution needed to be amended for that to be the national standard. Congressional proposed amendments to that end were not forthcoming as most Senators had achieved their positions under the old system.
States began making applications for a Constitutional Convention to propose a direct Senatorial election amendment. Congress, concerned that a convention might not confine itself to that single issue, ultimately proposed the 17th Amendment which was ratified in 1913.
Two Methods of Ratification
Article V allows for two methods of ratification. The first, ratification by three-fourths of the State legislatures, has been used for 26 of the 27 amendments to the Constitution.
The second method for ratification is by the calling of ratification conventions in each of the States and passage of the proposed amendment by three-fourths of the State conventions. This method has been used once, in the passage of the 21st Amendment, which repealed Prohibition. The 21st Amendment also is the only amendment to repeal an earlier amendment, the 18th.
Limitations on the Amendment Process
Article V limited the amendment authority as follows:
“Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Article I, section 9, clause 1 dealt with the slave trade and bringing new slaves into the country was expressly allowed by that clause, and there was a prohibition regarding changing the clause before 1808. Amendment to clause 4 was prohibited prior to 1808; that clause limited imposition of direct taxes prior to the conduct of a census.
In existence today is a prohibition on amending the Constitution to change the Senate in a way that would give one State a smaller voice in the Senate than another State.
Difficulties of the Amendment Process
Though the Founding Fathers rightly provided an amendment process, it was made difficult on purpose, so that the Constitution would have continuity and not be subject easily to change by short term popular sentiment. This has been effective in that there have been only 33 amendments sent to the states for ratification, and only 27 have passed, though there have been thousands of proposals. Of the 27 that passed, the first 10 known as the Bill of Rights,were almost immediately ratified after the Constitution was adopted
Changing Judicial Interpretations, Effectively Amending the Constitution
The Supreme Court is final interpreter of the words of the Constitution. Over the 220 years of its existence the Court has changed the way the Constitution is read. For example, neither the Miranda Warnings, nor abortion rights are found explicitly in the Constitution, yet the Court has given them Constitutional status. When the Supreme Court changes the way the document is read, then its effect is amended, even though the words of the Constitution have not been changed.
 |
