This Lady Justice statue dates back to Roman and Greek times, represented as Themis, the goddess of justice and law. Well known for her clear sightedness, she typically holds a sword in one hand and scales in the other.
During the 16th century, artists started showing the lady blindfolded to show that justice is not subject to influence.
Or, that justice today is indeed blind, meaning that only injustice exists under an oligarchy.
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Notes on the Amendments
Each Amendment to the Constitution
came about for a reason - to overrule a Supreme Court decision, to force a
societal change, or to revise the details of the Constitution. This page will
give an overview of how each Amendment came to be.
The process for adopting an
amendment is given at the bottom of this page, and the ratification
history of each Amendment is given elsewhere.
The Bill of Rights
(Amendments 1 through 10)
Several delegates to the Constitutional Convention refused to sign the newly drafted
Constitution because it did not
include a bill of rights. Bills of rights were typically parts of the
constitutions of the several states of the day (and today), placed there to
ensure that certain rights were recognized by the government. Most of the
delegates did not feel such a bill was necessary, and other may have been on the
fence but were weary from the months of negotiations.
The lack of a bill of rights was
one of the main arguments that Anti-Federalists used to try to convince the
public to reject the Constitution. But the need for change was all too evident,
and it was not rejected. However, some of the states sent suggestions for
amendments to the Constitution to add an enumeration of certain rights. The
ratification messages of the states included many varying suggestions, which the
very first Congress took under consideration in its very first session.
Representative James Madison,
who was so instrumental in the creation of the Constitution in the first place,
drafted a bill of rights. Though he originally opposed the idea, by the time he
ran for a seat in the House, he used the creation of a bill as part of his
campaign. He introduced the bill into the House, which debated it at length and
approved 17 articles of amendment. The Senate took up the bill and reduced the
number to 12, by combining some and rejecting others. The House accepted the
Senate's changes, voting on September 24th and 25th, 1789; twelve articles of
amendment were sent to the states for ratification.
The first two articles were not
accepted by enough states, but the last ten were. We know them today as
Amendments 1 through 10. The second article was eventually ratified as the 27th
Amendment. The first ten amendments, collectively known as the Bill of Rights,
were ratified on December 15, 1791 (811 days).
The Bill of Rights (explained in plain and simple English)
1st Amendment
I. The First Amendment guarantees that the government will not interfere in the citizen's exercise of peaceful resistance against the government.
2nd Amendment
II. The
Second Amendment guarantees that government will not be allowed to take away the
weapons of citizens, so that the citizen will always be able to exercise violent
resistance against tyrannical government.
3rd Amendment
III. The
Third Amendment guarantees that the military force of government will not have a
general license to impose itself by brute force upon the citizens or anything
that is the property or responsibility of the citizens. It implies that the
government must act upon principles of fair business practice rather than
R.I.C.O. principles of protection insurance racketeering (R.I.C.O. --
Racketeering Influenced and Corrupted Organizations).
4th Amendment
IV. The
Fourth Amendment guarantees that government will not use police force and the
power to arrest in an indiscriminate and unlawful manner.
5th Amendment
V. The
Fifth Amendment guarantees that no citizen shall be a party in any criminal or
civil action unless all of the pertaining rules of evidence are satisfied.
6th Amendment
VI. The
Sixth Amendment protects the citizen from the awesome power of government in the
prosecution of criminal complaints against the citizen. Must have positive law.
7th Amendment
VII. The
Seventh Amendment protects the citizen against all administrative process in the
collection of debts where the State or United States might be a party of
interest, either directly or indirectly. This amendment is established to
protect substance by jury.
8th Amendment
VIII. The
Eighth Amendment protects the citizen against the evils of government officials
whose animal appetites for power might be expressed through a misuse of the
power to punish the citizen.
9th Amendment
IX. The
Ninth Amendment guarantees that the government will not assume automatic
dominion over any rights not stated in the Constitution and its amendments. The
Ninth Amendment implies reference to the Declaration of Independence, the
Declaration of the Rights of Man.
10th Amendment
X. The
Tenth Amendment guarantees that the government will not exercise power where it
has not been granted the privilege by the citizens (of the people, by the
people, for the people).
THE
FIFTH AMENDMENT
The Fifth Amendment states "nor shall private property be taken for public use, without just compensation. This states clearly and unambiguously that fraud and extortion must not be the method by which government deals with the citizen. Quite the contrary, the government must exercise the same rules of fair business practice in the collection of debts of substance as are common to the ordinary course of business. If the government wants to assess a tax upon a citizen, it must provide proof in the form of an itemized statement for government services rendered which fairly justifies the assessed obligation, declared true, correct, and certain under penalties of perjury. If no itemized statement is attached, tax assessments and collection practices are fraudulent and rely upon the methods of organized crime, that is, threats, extortion and the misuse of raw police power.
11th Amendment – Judicial
Limits. Ratified 2/7/1795.
The 11th Amendment came about as a direct result of a Supreme Court decision in Chisholm
v Georgia (2 U.S. 419) in 1793 (see the Events Page for details). Feeling
that the Supreme Court had over stepped its bounds, and fearing it would do so
again unless prohibited in the Constitution. The Chisholm case was decided in
1793, just five years after the adoption of the Constitution. The Amendment was
approved by Congress on March 4, 1794, and ratified on February 7, 1795 (340
days). The Amendment limits the jurisdiction of the federal courts to
automatically hear cases brought against a state by the citizens of another
state. Later interpretations have expanded this to include citizens of the state
being sued, as well.
In Hollingsworth v Virginia
(3 USC 378 [1798]), the passage and ratification of the 11th was challenged for
two reasons. First because the President did not sign the amendment bill, and
second because the amendment presented a situation where people had some legal
relief before ratification that dried up after, creating an ex post facto
situation. The Supreme Court rejected both challenges, setting some important
precedent for future amendments.
12th Amendment – Choosing
the President, Vice-President. Ratified
6/15/1804.
The Constitution was written before parties were a player in American politics.
When John Adams was chosen for President in the 1796 election, the second-place
candidate, Thomas Jefferson, became Vice President - but Adams was a Federalist
and Jefferson was a Democratic-Republican. The two clashed several times during
Adams's presidency, though Adams's conflicts with Hamilton, a Federalist, too,
probably caused Adams more concern.
In the election of 1800, the
flaws of the original system became more than apparent. Jefferson and Aaron Burr
both got 73 votes in the Electoral College, forcing the House of Representatives
to choose. The problem? Both Jefferson and Burr were candidates of the same
party, with Burr chosen to be the Vice President; some states preferred Burr,
and neither was able to get the required majority until the stalemate was
ultimately broken.
The result was the 12th
Amendment, approved in Congress on December 9, 1803, and ratified on June 15,
1804 (189 days), in time for the new process to be in place for the 1804
election. With the 12th, Electors are directed to vote for a President and for a
Vice President rather than for two choices for President.
13th Amendment – Slavery
Abolished. Ratified 12/6/1865.
Slavery was an institution in America in the 18th and 19th centuries. The
Southern states, with their agricultural economies, relied on the slavery system
to ensure the cash crops (cotton, hemp, rice, indigo, and tobacco, primarily)
were tended and cultivated. Slaves were not unknown in the North, but abolition
in the North was completed by the 1830's. In 1808, the Congress prohibited the
slave trade, not a year later than allowed in the Constitution. A series of
compromises, laws, acts, and bills tried to keep the balance between the slave
states and the non-slave states.
South Carolina voted to secede
from the United States as a result of Abraham Lincoln's election to the
Presidency. Lincoln had, over time, voiced strong objections to slavery, and his
incoming administration was viewed as a threat to the right of the states to
keep their institutions, particularly that of slavery, the business of the
states. More states seceded, eleven in all, forming the Confederate States of
America. The secession movement led to the Civil War. In the waning days of the
war, which ran from 1861 to 1865, the Congress approved an amendment to abolish
slavery in all of the United States. Once the CSA was defeated, approval of the
13th Amendment was quick in the Northern states. By the end of 1865, eight of
the eleven Confederate states had also ratified it. Proposed on January 31,
1865, it was ratified on December 6, 1865 (309 days). Eventually, all of the CSA
states except Mississippi ratified the 13th after the war; Mississippi ratified
the amendment in 1995.
14th Amendment – Rights of
a citizen of the U.S. Ratified
7/9/1868.
The ratification of the 13th Amendment was a major victory for the North, and it
was hoped that with the Emancipation Proclamation and the 13th Amendment, the
effects of slavery in the United States would quickly diminish. The original
plan to readmit states after acceptance of the 13th was supported by President
Andrew Johnson, but the Radical Republicans, as they became known, wanted more
than just a return to normalcy. They wanted to keep the power they had attained
during the war years. The South did not make it easy for Johnson, however, and
the so-called Black Codes started to be passed in Southern states. Congressional
inquiries into the Black Codes found them to be a new way of controlling
ex-slaves, fraught with violence and cruelty.
The ensuing Reconstruction Acts
placed the former CSA states under military rule, and prohibited their
congressmen's readmittance to Congress until after several steps had been taken,
including the approval of the 14th Amendment. The 14th was designed to ensure
that all former slaves were granted automatic United States citizenship, and
that they would have all the rights and privileges as any other citizen. The
amendment passed Congress on June 13, 1866, and was ratified on July 9, 1868
(757 days).
15th Amendment – Blacks
allowed to vote. Ratified 2/3/1870.
The last of the Reconstruction Amendments, the 15th Amendment was designed to
close the last loophole in the establishment of civil rights for newly-freed
black slaves. It ensured that a person's race, color, or prior history as a
slave could not be used to bar that person from voting. Though a noble idea, it
had little practical effect for quite some time, as the Southern states found
myriad ways to intimidate blacks to keep them from voting. The Congress passed
the amendment on February 26, 1869, and it was ratified on February 3, 1870 (342
days).
Though ratification of the 15th
Amendment was not a requirement for readmittance to the Congress of the
Confederate states, one of the provisions of the Reconstruction Acts required
that the states include a provision in their new constitutions that included a
near-copy of the text of the 15th. All of the CSA states except Tennessee, which
was immune from the Reconstruction Acts, and Alabama, eventually ratified the
15th Amendment.
16th Amendment – Income
taxes allowed. Ratified 2/3/1913.
In 1895, in the Supreme Court case of Pollock v Farmer's Loan and Trust
(157 U.S. 429), the Court disallowed a federal income tax. The tax was designed
to be an indirect tax, which would mean that states need not contribute portions
of a whole relative to its census figures. The Court, however, ruled that the
income tax was a direct tax and subject to apportionment. This was the last in a
series of conflicting court decisions dating back to the Civil War. Between 1895
and 1909, when the amendment was passed by Congress, the Court began to back
down on its position, as it became clear not only to accountants but to everyone
that the solvency of the nation was in jeopardy. In a series of cases, the
definition of "direct tax" was modified, bent, twisted, and coaxed to
allow more taxation efforts that approached an income tax.
Finally, with the ratification
of the 16th Amendment, any doubt was removed. The text of the Amendment makes it
clear that though the categories of direct and indirect taxation still exist,
any determination that income tax is a direct tax will be irrelevant, because
taxes on incomes are explicitly to be treated as indirect. The Congress passed
the Amendment on July 12, 1909, and it was ratified on February 3, 1913 (1,302
days).
17th Amendment - Senators
elected by popular vote. Ratified 4/8/1913.
One of the most common critiques of the Framers is that the government that they
created was, in many ways, undemocratic. There is little doubt of this, and it
is so by design. The Electoral College, by which we choose our President, is one
example. The appointment of judges is another. And the selection of Senators not
by the people but by the state legislatures, is yet another. The Senatorial
selection system eventually became fraught with problems, with consecutive state
legislatures sending different Senators to Congress, forcing the Senate to work
out who was the qualified candidate, or with the selection system being
corrupted by bribery and corruption. In several states, the selection of
Senators was left up to the people in referenda, where the legislature approved
the people's choice and sent him or her to the Senate. Articles written by early
20th-century muckrakers also provided grist for the popular-election mill.
The 17th Amendment did away with
all the ambiguity with a simple premise - the Senators would be chosen by the
people, just as Representatives are. Of course, since the candidates now had to
cater to hundreds of thousands, or millions, of people instead of just a few
hundred, other issues, such as campaign finances, were introduced. The 17th is
not a panacea, but it brings government closer to the people. The Amendment was
passed by Congress on May 13, 1912, and was ratified on April 8, 1913 (330
days).
18th Amendment –
Prohibition of Alcohol. Ratified 1/16/1919.
Repealed by 21st Amendment,
12/5/1933.
Consumption of alcohol was discouraged by law in many of the states over the
first century of the United States under the Constitution. By 1855, 13 of the 31
states had temperance, or alcohol prohibition, laws. The Civil War distracted
the public from the temperance movement, but the proliferation of saloons after
the Civil War, and the trappings of the saloons (like gambling, prostitution,
and public drunkenness) led to the so-called "Women's War" in 1873.
Over time, the movement became more organized and the Anti-Saloon League was
established in 1893. The ASL's goal was national prohibition, and it set up an
office in Washington to that end - it even established its own publishing house
in Westerville, Ohio.
The ASL polled candidates on
their stand on the temperance question, endorsing candidates with a
pro-temperance stance. In the election of 1915, ASL-sponsored candidates swept
the elections for Congress, and on December 18, 1917, Congress passed the 18th
Amendment. It quickly was adopted by the states, being ratified in just over a
year, on January 16, 1919 (394 days).
19th Amendment – Women's
suffrage. Ratified 8/18/1920.
Though the Constitution originally made no mention of a woman's right to vote,
it was implied by society - women simply did not have the right. The 14th
Amendment actually made things worse, by codifying the suffrage right to men
only, when its Second Clause punished the denial of suffrage to men (though this
still did not officially deny women the right). As early as 1848, groups met to
discuss how to further women's rights, and the franchise, it was decided, was
the best place to start. But America was not ready, and the suffragists, as they
were called, were branded as immoral.
Famous women's rights leaders
Susan B. Anthony and Elizabeth Cady Stanton tried to make a stand after the
Civil War, to have the language of the 14th Amendment include women, though the
issue was thought too volatile by most, and passage of the amendment was thought
to be in grave jeopardy if such a provision were included. Anthony later used
the 15th Amendment as rationale for voting in a New York election, and though
she was tried and fined for voting, the ordeal proved an impetus for the
eventual guarantee of voting rights for women. By 1918, about half the states
had granted women full or partial voting rights; the stature gained by women
involved in the temperance movement also helped push the suffragist movement
along. The support of women to the war effort convinced many more, even
President Woodrow Wilson, who had been staunchly opposed to a federal suffrage
amendment. On June 4, 1919, the 19th Amendment was passed by Congress, and it
was ratified on August 18, 1920 (441 days).
20th Amendment –
Presidential, Congressional terms defined. Ratified
1/23/1933.
The term "Lame Duck" originates in the mid 1700's. It is applied to an
elected official who has not been reelected, but still holds office. For
example, in the United States today, the President is elected in November, and
inaugurated in January of the following year - the time in between if the
President was not reelected, is the lame duck period. Early in the political
history of the nation, the period between the election and swearing-in of
elected officials was a small issue. With slow methods of transportation and the
nature of the politician in the 18th century, the lame duck period was almost a
necessity. In fact, once the November election was established, it was more than
a year before newly elected congressmen met in December.
But from the start, the lame
duck period was a problem, most famously illustrated in the Marbury v Madison
case, where lame-duck appointments by out-going President John Adams set the
stage for a landmark Supreme Court decision with his series of late-night,
last-minute appointments. The 20th Amendment cleared up this problem to a
degree, by shortening the lame duck period. The Congress is sworn in on January
3 following the election, and the President is sworn in on January 20, rather
than the March 4th proscribed in the 12th Amendment. The Amendment also closes a
gap in Presidential power by specifying what will happen if a President-elect
dies before he is sworn in. The 20th Amendment was passed by Congress on March
2, 1932, and was ratified by the states on January 23, 1933 (327 days).
The 20th reached some notoriety
during the impeachment proceedings of President Bill Clinton in 1998; the final
House vote was taken after the 1998 elections, and the Senate was not scheduled
to hear the case until after the swearing-in of the next Congress in 1999.
Arguments that the 20th conceptually required a revote by the new House were
fruitless, however.
21st Amendment – Repeal of
18th Amendment. Ratified 12/5/1933.
It would be a disservice to say that the 18th Amendment was completely
ineffective. It would also be a disservice to say that the 18th Amendment caused
the lawlessness embodied by people like Al Capone. The 18th Amendment did reduce
alcohol consumption in the United States, and it did not cause organized crime.
In the Prohibition era, alcohol consumption dropped to an average of less then a
gallon of alcohol per person per year, down from two and a half gallons in 1915.
And organized crime existed before Prohibition, and existed after it, too.
That having been said, the
Prohibition era did have a certain sense of lawlessness; the very fact that
consumption was not eliminated is testimony to that; and the fact that organized
crime manufactured and distributed the bulk of the illicit alcohol of the 1920's
and early 1930's is evidence that gangsters were aided by Prohibition.
Enforcement was spotty, with stills and speakeasies popping up in every
population center. Over-zealous police and federal agents violated civil rights
when searching for and destroying the paraphernalia of alcohol. While most
Americans respected the law, were in favor of the law, the shine of
"dry" began to wear off, especially as the Great Depression set in.
A movement began to form to
repeal the 18th Amendment. Prohibition of alcohol was seen as an affront to
personal liberty, pushed on the nation by religious moralists. Alcohol was also
seen as a source of revenue for the local and national governments. The effort
to elect "wet" legislators was as grand as that to elect
"dry" ones almost two decades earlier. The Congress passed the
amendment on February 20, 1933 (288 days). It mandated, for the first time, that
conventions of the states were to vote on the amendment, rather than the
legislatures, feeling that conventions would be more apt to vote to ratify - and
they did, quickly - the ratification process was complete on December 5, 1933.
The 21st Amendment repealed the 18th, the first time an amendment had been
repealed by another.
22nd Amendment - Presidential
term limits. Ratified 2/27/1951.
Since the presidency of George Washington, only one thing could be said to be
totally consistent - that no President had the job for more than two full terms.
Washington had been asked to run for a third term in 1796, but he made it quite
clear that he had no intention of doing so; that an orderly transition of power
was needed to set the Constitution in stone. And so it was for almost 150 years.
Franklin Delano Roosevelt was
first elected President in 1932, and re-elected in 1936. When it came time for
the Democrats to nominate a candidate for the Presidency in 1940, two things had
happened. First, the Republicans had made great gains in Congress in the 1938
elections. And Hitler happened. Europe was in the throes of a great war, with
trouble in the Pacific, too. A change away from Roosevelt, who had led the
nation through the Great Depression, did not seem wise. He was nominated for an
unprecedented third term, and won. It was not a landslide victory, however, and
it is debatable that FDR would have had a third term had it not been for the
war. When 1944 rolled around, changing leaders in the middle of World War II,
which the United States was now fully engaged in, also seemed unwise, and FDR
ran for and was elected to, a fourth term.
His life was nearly over,
however, and his Vice President, Harry Truman, became President upon FDR's death
less than 100 days after his inauguration. Though FDR's leadership was seen by
many as a key reason that the U.S. came out of WWII victorious, the Congress was
determined, once the war ended, to ensure that Washington's self-imposed
two-term limit become the law of the land. Specifically excepting Truman from
its provisions, the 22nd Amendment passed Congress on March 21, 1947. After
Truman won a second term in 1948, it was ratified on February 27, 1951 (1,439
days). Truman could have run for a third term, but bowed out early before
campaigning began.
23rd Amendment – D.C.
allowed to vote in Presidential election. Ratified
3/29/1961.
The District of Columbia has
been a unique city since its founding in 1800 as the seat of the new government.
When first established, it was a town of 5000, and it was assumed that it would
be the center of government, and not a population center. But by 1900, over a
quarter of a million people lived within its bounds. Since it is a federal
district, however, and not a state, the inhabitants not only had no real local
government, they had no vote in the federal government either. By 1960, when
760,000 people lived in Washington, D.C., it seemed odd that people from a dozen
states, with lower populations, had more voting rights than residents of the
District. As citizens, they were required to pay taxes and to serve in the
military, but a vote in the Presidential election was available only to the
states.
It is important to note that the
23rd Amendment does not make Washington, D.C., a state; it just confers upon its
citizens the number of electors that it would have if it were a state. It also
did not provide full representation in Congress for the District. The Congress
passed the amendment on June 17, 1960; the amendment was ratified on March 29,
1961 (285 days).
24th Amendment - Poll tax
barred. Ratified 1/23/1964
One of the last legal vestiges of segregation was the effort to keep the black
population from participating in the vote. With most methods for keeping the
black vote to a minimum declared unconstitutional, several Southern states found
an answer - the poll tax. The poll tax has a long history, and was often used in
Europe to raise funds. With a poll tax, in order to vote, a certain tax must be
paid. The tax is the same for all, which allowed the generally more affluent
white population access to the polls with a minimum of pain, while the generally
poorer black population would have trouble justifying trading food on the table
for a vote in the ballot box. Worse, different kinds of poll taxes were
implemented, some accumulating even if no attempt was made to vote, meaning
increasingly higher back-taxes to be paid to gain the vote.
In 1939, Congress began to try
to get rid of the poll tax, but history was not behind them. After all, in
colonial times and when the Constitution first same into effect, land ownership
was often a requirement for suffrage. Though only five states still had a poll
tax by the time the amendment passed Congress, Supreme Court rulings made it
doubtful that mere legislation would eliminate the tax altogether. Proposed by
Congress on August 27, 1962, the 24th Amendment was ratified within a year and a
half, on January 23, 1964 (514 days).
25th Amendment - Presidential
disability and succession. Ratified 2/10/1967
The assassination of President Kennedy in 1963 shocked the nation in more ways
than the obvious. The advancement of medical technology had many hoping that the
President could have been saved after being shot. That was not the case, but if
he had been, Kennedy could have been in a coma for an extended period of time,
perhaps never able to fully function again. He would be the President, but would
not be able to fulfill his duties. The resulting power vacuum would cause a
constitutional crisis - who is President? Who has the power of the Presidency?
Less than two years after
Kennedy's death, on July 6, 1965, the Congress passed the 25th Amendment, where
the line of succession was not only clarified, but what was to be done in the
case of presidential disability was addressed. The selection of a Vice President
for an empty Vice Presidential seat was also provided for. The states ratified
the amendment on February 10, 1967 (584 days). The second clause, dealing with
the filling of a vacancy in the Vice Presidency, was used less than six years
later when Gerald Ford assumed the Vice Presidency upon the resignation of Spiro
Agnew.
26th Amendment – Voting age
set to 18 years. Ratified 7/1/1971.
The United States was in the
throes of the Vietnam War and protests were underway throughout the nation.
Draftees into the armed services were any male over the age of 18. There was a
seeming dichotomy, however: these young men were allowed, even forced, to fight
and die for their country, but they were unable to vote. The 14th Amendment only
guaranteed the vote, in a roundabout way, to those over twenty-one.
The Congress attempted to right
this wrong in 1970 by passing an extension to the 1965 Voting Rights Act (which
itself is enforcement legislation based on prior suffrage amendments) that gave
the vote to all persons 18 or older, in all elections, on all levels. Oregon
objected to the 18-year-old limit, as well as other provisions of the 1970 Act
(it also objected to a prohibition on literacy tests for the franchise). In Oregon
v Mitchell (400 U.S. 112), a sharply divided Supreme Court ruled that the
Congress had the power to lower the voting age to 18 for national elections, but
not for state and local elections. The case was decided on December 1, 1970.
Within months, on March 23, 1971, the Congress passed the text of the 26th
Amendment, specifically setting a national voting age, in both state and
national elections, to 18. In just 100 days, on July 1, 1971, the amendment was
ratified.
27th Amendment -
Congressional pay increases. Ratified 5/7/1992.
The 27th Amendment was originally proposed on September 25, 1789, as an article
in the original Bill of Rights. It did not pass the required number of states
with the articles we now know as the first ten amendments. It sat, unratified
and with no expiration date, in constitutional limbo, for more than 80 years
when Ohio ratified it to protest a congressional pay hike; no other states
followed Ohio's lead, however. Again it languished, for more than 100 years.
In 1978, Wyoming ratified the
amendment, but there was again, no follow-up by the remaining states. Then, in
the early 1980's, Gregory Watson, an aide to a Texas legislator, took up the
proposed amendment's cause. From 1983 to 1992, the requisite number of states
ratified the amendment, and it was declared ratified on May 7, 1992 (74,003
days).
The
Amendment Process
There are essentially two ways
spelled out in the Constitution for how it can be amended. One has never been
used.
The first method is for a bill
to pass both halves 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 approved by three-fourths of
states. The amendment as passed may specify whether the bill must be passed by
the state legislatures or by a state 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.
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 USC 378
[1798]):
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.
"Informal
Amendment"
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.
Popular Amendment
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 affecting popular amendment could be
impossible to resolve.