In the last post, I examined how to write new laws. It was a lengthy process involving the House of Representatives, the Senate, and the president. It also involved the courts and the people.
Today, let’s examine how to amend the constitution.
Article V defines the amendment process. It is simply stated as:
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.
The process for amendment starts with the congress. They simply have to approve the amendment by 2/3rds of both the House and the Senate in much the same way that a bill is approved.
An alternative process is for the states to call a constitutional convention. All we need is 2/3rds of the states, or 34 states, to call for such a convention. The convention will propose one or more amendments to the constitution, bypassing the congress altogether. Currently, we are 3 states away from a constitutional convention. The Wyoming state government recently dropped their request for a convention.
Amendments can be ratified in one of two ways. Either they will be ratified by 3/4ths of the state legislatures, or they can be ratified by conventions at 3/4ths of the states. The method of ratification is determined by the amendment. In this way, the state legislatures can be bypassed.
We have never had a constitutional convention since the one in 1787. All the amendments to that constitution have been passed through congress and through the state legislatures, except one. The 21st amendment bypassed the state legislatures and was ratified by conventions in the states.
Note that the president nor the courts have any say on amendments. In the case of the courts, they cannot rule against the constitution since it is the constitution that gives them their power in the first place. The courts acknowledge this. Even in California where the constitution was amended by the people with Prop. 8, the courts have admitted that if they were to overturn the amendment, the government of California would no longer be ruled by the constitution the people wrote to govern it.
I can’t overstate the importance of this principle. The governments of our land draw their power to govern from the people. The people consent because the governments adhere to the constitutions which the people wrote to institute those governments. Should the governments decide to ignore the constitution, it is entirely possible that the people will withdraw their support for the government. The government will, in such a case, collapse. Therefore, the governments see themselves as absolutely governed by the articles and amendments in the constitutions which form them.
Note also there is no time period to ratify. The 27th Amendment initially failed to get 3/4 of the states to ratify it—in 1789. In 1992, it was ratified. So many states were added since 1789 and enough states chose to ratify the amendment that the original 13 states were overruled.
There is one additional theoretical amendment process, one which has been lightly debated and questionable at best, though it bears mention. Since the constitution is a document written by “the people”, it should be possible to amend it by “the people”. What this means is perhaps a super-majority vote on a national referendum. Or perhaps it means each state sends delegates to a constitutional convention which wasn’t summoned by the state legislatures and then each state ratifies the amendments by a majority vote of the people. Since this process isn’t spelled out it is whatever the people want it to be. In fact, this process cannot be spelled out in the constitution since the constitution cannot limit the power of the people.
I won’t enumerate the 27 amendments here. Suffice it to say, the amendments to the constitution give a clear picture of how America’s view of government has changed over time. It is comforting to know that amendments concerning equal rights, suffrage, and key individual liberties are the hallmarks of our constitutional amendments. The tendency of our constitution has been to expand personal freedom by limiting the powers of government over time.
Finally, I want to speak a few words to those who advocate a “living” constitution whose meaning may change over time outside of the amendment process. This is a pernicious evil. It is not right to change the meaning of a contract between two parties simply because you feel like the meaning of the words have changed. If a partner I have contracted with behaved in such a way, I would feel like I was dealing with an untrustworthy low-life. We must retain the original meaning of the document. We cannot change its meaning on a whim. Doing so is not any different than ignoring the constitution altogether.
The very fact that a certain segment of our politics is trying to change the meaning of our constitution outside of the amendment process is proof that their ideas are not popular and are not representative of the people, despite their claims. The very fact that certain elements of our political class survive by violating our constitution is also testament to their underhandedness and lack of moral character. We need not tolerate them in our government.
In the next article, we’ll cover the president.
