Saturday, April 30, 2016

Constitution Series Part 26: Article V

Today, we'll see how we can edit the Constitution to add to or change it. After all, though it's a fascinating document and the basis for a pretty good government, all things considered, it's also flawed; incomplete in some ways, and poorly thought out in others. So, rather than starting over, we can simply amend it.
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.
This paragraph simply describes the method by which the Constitution can be amended. The process is as follows:
1) Either 2/3 of the House and Senate OR 2/3 of the state legislatures must agree that an amendment is necessary.
2) Congress creates the language for the amendment.
3) The amendment is sent to the states for ratification. If 3/4 of the state legislatures ratify the amendment, it becomes a valid part of the Constitution.

The Articles of Confederation could also be amended (which was, in some sense, the reason the Constitutional Convention was called), but amending the Articles of Confederation required a unanimous vote from the states, which turned out to be basically impossible. The Constitution's requirement of ratification from three-fourths of the states was seen to be, like so many elements of our government, a balance between limiting radical changes while also not being entirely inflexible, especially since the founders knew that eventually we would find faults in the Constitution.

And, in fact, this was immediately the case. The first ten Amendments to the Constitution were proposed almost exactly two years after its creation, as several states refused to ratify the Constitution until there was a Bill of Rights to go along with it.

James Madison wanted the Bill of Rights to be woven into the Constitution where it applied, such as putting the First Amendment into Article I, Section 9, along with the other restrictions on what types of laws Congress can pass. However, Congress decided to place all Amendments after the rest of the Constitution. This preserved the Constitution in its original state, but it also made the Constitution a bit more confusing to read. The precedent was set, though, and every Amendment afterward followed suit.

Every amendment proposed so far has come from Congress. The states have never pulled together enough allies to form the two-thirds necessary to force Congress to create an Amendment.

Before the 20th century, Constitutional amendments sent to the states would simply sit and wait until the states ratify them, never disappearing from the books unless states specifically reject the amendment (which they almost never get around to doing). In fact, there are four amendments awaiting ratification right now that were proposed a long time ago, two of which are over 200 years old. One of them is an amendment intended to prevent the abolition of slavery in a (failed) last-ditch effort to prevent the Civil War, and which states have mostly simply ignored, not even bothering to vote against it.

The fact that these amendments have sat on the books for so long may seem ridiculous, and it is. Modern amendment proposals include a time limit on ratification. However, our most recently ratified amendment, the 27th Amendment, was proposed alongside the Bill of Rights, over 200 years before it was ratified in 1992.

All things considered, the fact that our Constitution has only been amended 27 times in the two centuries or so it's been around is pretty impressive. Again, though, we'll cover the amendments themselves in a later series.

Continue to Part 27: Article VI

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