Wednesday, July 10, 2013

Amendment Process

Article V of the U.S. Constitution reads:

"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."

Our founding fathers understood that they could not write a document that would always cover every conceivable right, privilege, or circumstance.  They understood that the People might want or need to change the document to ensure that the government remained under control and did not infringe on the rights that they confirmed were from God (the Creator, as they had previously noted in the Declaration of Independence.)

The amendment process itself actually can take two forms.  An amendment proposed by Congress itself, or upon application to Congress by two-thirds of the State Legislatures and then having to call a Constitutional Convention of the States.

The first method is the only successful process that has resulted in any amendment to the Constitution being enacted.  

There have been occasions when Congress has reacted to popular efforts at amendments and issued a proposed amendment themselves, rather than having enough states submit the application and having to call a Constitutional Convention of the States. I believe the reason for this is two-fold; first, the mechanics of a Constitutional Convention of the States has never been decided on nor provided for by the Founding Fathers in the Constitution itself and, secondly, the fact that since the scope of a Constitutional Convention of the States have never been defined, Congress is apprehensive that additional amendment efforts could be brought up during the Constitutional Convention of the States.

The idea of having a Constitutional Convention of the States was a brilliant idea, in my opinion, on the part of the Founding Fathers.  Though a significant group in the Constitutional Convention felt that only Congress should propose amendments, they chose to allow the language that is in Article V to be added.  This gave the States the ability to propose amendments to the Constitution that Congress itself would not, or are not willing to, propose.

In the current environment in Washington DC, there are some subject matters that would more than likely never be handled or proposed by Congress itself.  And even though there was a recent proposed amendment for term limits on Congress by a Senator, every source that I have looked at that follows politics concur that this amendment proposal has no chance.  Now, imagine if two-thirds of the States would submit a term limit amendment proposal?  Congress would have no choice then but to call all the States together in a convention to settle the point.

Once an amendment is either proposed by Congress or the States, it must be ratified by the States.  Three-fourths of the States must ratify the amendment via their Legislatures, by a convention of citizens in each state, or at a Constitutional Convention of the States.  The process to ratify via the Legislatures has been well used, with 27 amendments currently added to the Constitution, and Congress chose the Legislature ratification process each time.  In modern times, there have been states that have even tried resorting to citizen referendums to allow the citizenry to vote on whether or not to ratify the amendment, but the Supreme Court of the United States and Congress have both questioned the validity of those referendums, as the Constitution states that the Legislature shall be the one to be addressed with the ratification request.  Though no amendment's ratification has been invalidated due to a referendum, this could still be a challenge that could be used.

Next up: Defining a Constitutional Convention of the States

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