Guess who has no role in officially changing the Constitution? The President of the United States. Believe it or not, the President was not given a formal role in amending America’s most essential document. It's just one of the ways the Founding Fathers created a deliberately slow and challenging process to amend the governing structure of the United States. In this article, we explore the processes and steps of the U.S. Constitutional Amendment process.
Importance of the Constitutional Amendment Process
By design, the framers of the U.S. Constitution ensured the Constitution could be changed, but only with considerable effort and national support. Since the founding of the nation, the process has been successfully navigated only 27 times. Concerns over swift, populist measures transforming the nation ad fears of government tyranny led to a framework with only two avenues of constitutional modification - each with a high bar.
Fig. 1: The signing of the U.S. Constitution
Steps in the Constitutional Amendment Process
Article 5 of The Constitution provides for the process of amending the document. There are two pathways that can be used to amend the Constitution:
-A two-thirds majority vote in both the U.S. House of Representatives (290 votes) and the U.S. Senate (67 votes) and three-fourths (38 states) of the state legislatures.
OR
-A constitutional convention called for by two-thirds of state legislatures and also ratified by three-fourths of state legislatures.
Article 5 of the U.S. Constitution spells out the amendment process:
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; 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."
21st Amendment
The 21st Amendment was unique for two reasons. Recall that the 18th Amendment was passed in Congress and was ratified in 1919, instituting a period known as Prohibition. After one year, the manufacture, distribution, and sale of alcoholic beverages became illegal. After, 13 years of crime, unrest, and protest, the 21st Amendment was ratified, repealing the 18th and ending Prohibition in 1933. This was the only time an amendment nullified another amendment and the only time the state ratifying process was used to actually ratify an amendment.
Constitutional Amendment Process Flow Chart
Fig, 2: Constitutional Amendment Process
Difficulties in the Constitutional Amendment Process
The process of changing the Constitution is demanding and tough to accomplish. In examining the process, it is clear that attaining a two-thirds majority of either chamber of Congress, typically divided by partisan politics, is challenging. Even then, the proposal must head to the state legislatures whereby three-fourths have to agree on the amendment.
The hurdle was intentionally set at a high level to allow for substantial, but slow change based on wide, national consensus. Thousands of amendment proposals have been initiated in Congress, but few have emerged from the process as a part of the U.S. Constitution.
Equal Rights Amendment
The Equal Rights Amendment was first proposed by Alice Paul in 1923. As part of the quest to achieve gender equality in the United States, Paul and other activists sought a clear, simple amendment to the Constitution. A major push in both the 1920s and 1970s failed to achieve the objective. The text of the proposed amendment is:
Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."
The Equal Rights Amendment, or E.R.A., seeks to end the legal distinctions between men and women in the matters of property, estates, employment, and divorce. Despite Congressional passage, ratification by enough state legislatures has not occurred in the last 50 years. With 38 states required for ratification, finalization has eluded the movement, even though the required number has been reached. Due to deadlines and timing debates plus the fact that 6 states have revoked their ratification, the process continues.
Critics have noted legal rights of women have been accomplished with the 14th Amendment, the Voting Rights Act of 1954, and other federal legislation, making the amendment unnecessary. In addition, 25 state constitutions have been amended with equal rights provisions.
Some, like the late conservative activist Phyllis Schlafly, argued the amendment would be counterproductive to the rights of all American women. Schlafly contended protections for women from Selective Service (the draft), spousal Social Security benefits and even bathroom access would be impacted. Schlafly's critics called her arguments disingenuous, and have renewed the push for the E.R.A. in recent decades.
Fig, 3: U.S. Constitution
Informal Methods of Changing the Constitution
Despite the difficulty in achieving a constitutional amendment, there are other ways in which the Constitution can be impacted. The Supreme Court through published decisions effectively alters the charges of the Constitution as it judges Congressional laws and executive actions. The manner in which the government operates and fulfills its duties outlined in the Constitution is based on court decisions and precedents. Congress, itself, has the ability to create laws that can expand the Congress, pending judicial review.
Aside from legislation (Congress), executive actions(President), and court decisions (federal courts), the practices of major political parties and customs in the operation of government can be factors. The Presidential nomination process and Electoral College certification processes have both been affected by the political parties and state influences. The Presidential Cabinet and historical succession were also affected by traditional customs.
The Amendments to the Constitution
1 - 10: (Bill of Rights) guarantees certain individual and states' rights.
11: State sovereign immunity protected.
12: Modified Presidential election procedures.
13- 15: (Reconstruction-related) banned slavery, detailed rights of citizens, and voting rights.
16: Provided for a federal income tax.
17: The direct election of U.S. Senators was established.
18: Prohibition of alcohol.
19: The right to vote for women.
20: Changed terms of Congress and President
21: Repealed the 18th Amendment (ended prohibition of alcohol)
22: Presidential term limits established (limit of 2)
23: Permitted electoral College representation from Washington, D.C.
24: Banned poll taxes.
25: Presidential succession was clarified.
26: The voting age was lowered to 18
27: Congressional pay raises during the current term are prohibited.
Summary of the Constitutional Amendment Process
Proposed amendments that pass the muster of the Congressional approval or constitutional convention process become a part of the Constitution only after ratification by three-fourths of U.S. states. Unless specified in the text, the amendment goes into effect immediately. Examples such as the 18th amendment were designed with a one-year interim period during which time preparations for application were made.
The first ten amendments to the Constitution are known as the Bill of Rights. The Bill of Rights which was passed by Congress on September 25, 1789, and was ratified on December 15, 1791, was a detailed list of the individual rights of citizens. Most citizens are aware of free speech (1st Amendment) or the right to keep and bear arms (2nd Amendment), making these early amendments relevant today.
This explicit guarantee of civil liberties prevents infringement by the federal or state governments and was broadly debated and ultimately supported. Since 1791, only 17 amendments made it through the arduous constitutional amendment process!
Notable amendments such as the guarantee of voting rights regardless of gender (19th) or the banning of slavery (13th) have transformed American society. The protections of the rights of citizens and voting rights for black males (14th and 15th) have fundamentally changed the nation and broadened the political power of Americans.
The last amendment to the Constitution was the 27th Amendment. The text prohibits members of Congress from voting for a pay raise during their current session of legislative actions.
Trivia.
- Not only was the 27th amendment the last amendment but it took 202 years to ratify!
- The 26th Amendment took the shortest time to ratify with a 100-day record!
-The average time to ratify the first 26 amendments was 1 year and 252 days, but including the 27th = 9 years and 48 days!
-The Amendments are exactly that - the Constitution's original text is completely intact and untouched by the 27 additions.
Constitutional Amendment Process - Key takeaways
- By design, the framers of the U.S. Constitution ensured the Constitution could be changed, but with considerable effort and national support required.
- The process requires A two-thirds majority vote in both the U.S. House of Representatives (290 votes) and the U.S. Senate (67 votes) and three-fourths (38 states) of the state legislatures.
- Alternatively, a constitutional convention called for by two-thirds of state legislatures and also ratified by three-fourths of state legislatures can be used.
- Since the founding of the nation, the amendment process has been successful only 27 times.
- The first ten amendments to the Constitution are known as the Bill of Rights. They guarantee individual rights and limit the power of the federal government.
- The Constitution provides for the processing of amending the document in Article V. However, actions by the three federal branches political parties, and elected officials can alter the Constitution in practice.
References
- National Archives, archives.gov
- U.S. Constitution text https://www.law.cornell.edu/constitution
- Fig, 2: Constitutional Amendment Process (https://commons.wikimedia.org/wiki/File:Constitutional_amendment_process_(USA).png) by Drdpw (https://commons.wikimedia.org/wiki/User:Drdpw) licensed by CC-BY-SA-3.0 (https://creativecommons.org/licenses/by-sa/3.0/).
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