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Amending the Constitution, constitutionally

The Framers who created the Constitution for the United States composed one of the world’s most profound documents. While doing so, they knew that some tweaking of the document would likely be necessary in time to come. Because of that, they included within the Constitution two methods by which it should be amended; one of which has yet to be used.

Method #1

This process begins with one of the two legislative branches (i.e. House) presenting a bill and voting on it. If the bill achieves a two-thirds majority in that chamber, it is then sent across the hall to the second branch (i.e. Senate) where it undergoes a second vote to see if it receives a two-thirds majority there as well. If so, it is now sent out to all 50 states for their approval. This ratification process must be completed within seven years.

Method #2

The second method available requires two-thirds of the state legislatures to call for a Constitutional Convention. At that convention, the proposed amendment is presented. The amendment is then sent to all 50 states where 75% of the legislatures /conventions must approve it. This method has yet to be used and there are those in the circles of political science who have asked how such a convention would be brought together and the changes it would bring about.

Though the two processes do differ concerning how the amendment is announced, both stipulate that before becoming part of the Constitution, the proposed amendment must be ratified by 75% (three-fourths) of the states. As with the amending process itself, this step also has two methods.

Within the text of the amendment, it must state whether the bill will be passed by either the states’ legislatures or handled through a state convention; with the legislatures being the default method. So far, only the 21st Amendment has been handled through conventions. When the voting takes place, a simple majority is all that is required.

Once either method is completed by all the states, the Constitution then spells out four paths for the amendment:

  • Proposal by Congress, ratification by state legislatures (typical process).

  • Proposal by Congress, ratification by state conventions (occurred once).

  • Proposal by convention of states, ratification by state conventions (not yet used).

  • Proposal by convention of states, ratification by state legislatures (not yet used)

Unlike when a bill becomes law, the President has no say-so in the amendment process. He can, of course, express his opinion on the matter; however, he cannot veto either the proposed amendment or its ratification. This rule is clearly stated in Article V and was reaffirmed by the Supreme Court in the case Hollingsworth v Virginia in 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

Though there is no such thing as an “informal" amendment, this term refers to the fact the meaning of the Constitution, or its interpretation, can change over time. There are two ways in which the interpretation (meaning) of the Constitution can change: change of circumstances or changes through the judiciary.

  • Circumstances: An example of circumstantial changes concerns voting. When the Constitution was first written, only male monied landholders voted. Over the years, this has changed, with the most recent change taking place in the 1960s during the Vietnam War when the voting age was lowered to 18. A second example involves the political trappings (primaries and conventions) of today’s political parties. Though these are not mentioned in the Constitution, they have become a fundamental part of today’s political system.

  • Judiciary: the fact the ultimate arbiter of the Constitution is the judiciary; the branch has more actual power than the document actually spells out. An example of this would be Privacy Cases. Before Privacy Cases, a state could constitutionally forbid married couples from using birth control, prevent interracial marriages and abolish abortion. Judicial change in the Constitution’s interpretation has changed the nation’s outlook on such issues.

Popular Amendment

This process has yet to be used and is likely lost on most students of the Constitution. Endorsed by Framer James Wilson, the notion of popular amendment originates from the Constitution’s conceptual framework. The Constitution’s power is derived from the people; it was adopted by the people and functions at the command of and for the benefit of the people. Consequently, if the people as a whole demanded a change to the Constitution (i.e. – term limits for all elected officials), should the people not be allowed to make this change?

Per James Wilson, “. . . the people may change the constitution whenever and however they please. This is a right of which no positive institution can ever deprive them.”

In this case, the issue is not conceptual, but reality. If the people do not support the Constitution in its present form, it cannot survive. However, no process is spelled out as to how this should take place. For now, though the idea of a popular amendment does make sense in the framework of the Constitution, the details of this process would likely be impossible to resolve.

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We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.

Abraham Lincoln

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