Understanding Constitutional Amendments And Their Clauses

The process of amending the US Constitution is outlined in Article V, which sets forth the procedures for doing so. Notably, the last two sentences of Article V specify certain subjects that cannot be amended. One such clause, effective until 1808, pertained to the Constitution's limitations on Congress's power to restrict the slave trade or levy certain taxes on land or slaves. Another clause states that no state, without its consent, shall be deprived of its equal suffrage in the Senate. In addition, there are various clauses within the amendments themselves, such as the Fourteenth Amendment's Due Process Clause, which has been interpreted to protect certain substantive rights not explicitly listed in the Constitution. The interpretation and application of these clauses have been subjects of debate and Supreme Court rulings.

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The US Congress and procedures for proposing amendments

The US Constitution provides two methods for proposing amendments. The first method requires a two-thirds majority vote in both the House of Representatives and the Senate, with the proposed amendment taking the form of a joint resolution. This procedure has been used to propose thirty-three constitutional amendments. The second method, which has never been used, involves Congress calling a convention for proposing amendments upon the request of two-thirds of the states.

After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist submits the proposed amendment to the states for their consideration by sending a letter of notification to each governor along with informational material. The governors then formally submit the amendment to their state legislatures or call for a convention, depending on Congress's specifications.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 out of 50 states). Once the required number of authenticated ratification documents is received, the OFR drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and US Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete.

It is important to note that the President does not have a constitutional role in the amendment process, and the joint resolution does not require their signature or approval. Instead, the original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR plays a crucial role in the process by adding legislative history notes to the joint resolution, publishing it in slip law format, and assembling information packages for the states.

The Establishment Clause and state religious establishments

The Establishment Clause, part of the First Amendment, states that "Congress shall make no law respecting an establishment of religion". This clause reflects the consensus after independence that there should not be a nationally established church. During colonial times, the Church of England was established by law in the southern colonies, while local Puritan or "Congregationalist" establishments held sway in most New England states. In these colonies, colonial authorities appointed and disciplined clergy, and colonists were required to pay religious taxes and often to attend church services. Dissenters were punished for refusing to conform.

The Establishment Clause prohibits the government from establishing a religion and is interpreted as mandating a separation of church and state. The precise definition of "establishment" is unclear, but historically it meant prohibiting state-sponsored churches. The Supreme Court has interpreted the Establishment Clause as applicable to state laws and local ordinances through the Fourteenth Amendment. This interpretation has led to a body of law governing the relationship between government and religion, with the Supreme Court acting as the ultimate arbiter in conflicts between the Establishment Clause and the Free Exercise Clause, which protects citizens' right to practice their religion.

The Supreme Court has considered the Establishment Clause in cases involving government funding of religious institutions, religious education in public schools, and the constitutionality of statutes providing financial support to nonpublic schools. The Court has also established a three-pronged test for laws dealing with religious establishment, known as the Lemon test, which requires statutes to have a secular legislative purpose, neither advancing nor inhibiting religion in principal effect, and not fostering excessive government entanglement with religion. The Court modified the Lemon test in Agostini v. Felton (1997) by combining the second and third prongs, leaving a "purpose" prong and a modified "effects" prong.

The Establishment Clause has been interpreted to mean that the government must remain neutral between religious and non-religious institutions providing education or other social services. This interpretation allows for government funding of religious institutions as long as it is not used to communicate religious doctrine. However, the meaning of the Establishment Clause is often contested, and cases in the Supreme Court often result in close splits.

The First Amendment and the Free Exercise Clause

The First Amendment of the US Constitution has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment Clause prohibits the government from establishing a religion. The Free Exercise Clause protects citizens' right to practice their religion as they please.

The Establishment Clause prohibits the government from "establishing" a religion. Historically, this meant prohibiting state-sponsored churches, such as the Church of England. Today, what constitutes an "establishment of religion" is often governed by the three-part test set forth by the US Supreme Court in Lemon v. Kurtzman (1971). Under the "Lemon" test, the government can assist religion only if:

• The primary purpose of the assistance is secular;
• The assistance must neither promote nor inhibit religion; and
• There is no excessive entanglement between church and state.

The Free Exercise Clause protects citizens' right to practice their religion, as long as it does not conflict with "public morals" or a "compelling" government interest. For example, in Sause v. Bauer (2018), the Court held that prayer constitutes the 'exercise' of religion, but a police officer may lawfully prevent a person from praying at a particular time and place in certain circumstances.

At times, the Establishment Clause and the Free Exercise Clause come into conflict. In such cases, the federal courts help resolve these conflicts, with the Supreme Court being the ultimate arbiter. For instance, in Cantwell v. Connecticut (1940), the Court held that the Free Exercise Clause had been incorporated against the states through the Fourteenth Amendment.

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The Fourteenth Amendment and the Due Process Clause

The Fourteenth Amendment's Due Process Clause ensures that no state may deprive any person of their life, liberty, or property without due process of law. This clause is similar to the Fifth Amendment's Due Process Clause, but while the Fifth Amendment applies to federal government actions, the Fourteenth Amendment binds the states. The Fourteenth Amendment's Due Process Clause guarantees procedural due process, meaning that government actors must follow specific procedures before depriving an individual of their protected life, liberty, or property interests.

The Supreme Court has interpreted the Due Process Clause in the Fourteenth Amendment to protect substantive due process, holding that there are certain fundamental rights that the government cannot infringe upon, even if it provides procedural protections. This interpretation has been described as puzzling, as the idea of unenumerated rights is not strange—the Ninth Amendment suggests that the rights enumerated in the Constitution are not exhaustive. The most natural textual source for these rights is likely the Privileges or Immunities Clause of the Fourteenth Amendment, prohibiting states from denying any citizen their citizenship rights.

The Due Process Clause of the Fourteenth Amendment has formed the basis for many high-profile Supreme Court cases, such as W. Va. State Bd. of Educ. v. Barnette (1943), Gideon v. Wainwright (1963), Griswold v. Connecticut (1965), and McDonald v. Chicago (2010). The Fourteenth Amendment has been interpreted to impose on the states many of the Bill of Rights' limitations, a doctrine known as incorporation against the states through the Due Process Clause.

In the context of judicial recusal, the Supreme Court has ruled that the Due Process Clause of the Fourteenth Amendment requires a judge to recuse themselves in certain circumstances due to a potential or actual conflict of interest. For instance, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a significant donor to their election campaign.

The unamendable subjects of Article V

Article V of the United States Constitution outlines the procedure for altering the Constitution. It provides two methods for amending the nation's frame of government. The first method authorises Congress, with a two-thirds majority in both houses, to propose constitutional amendments. The second method requires Congress, at the request of two-thirds of state legislatures, to call a convention for proposing amendments.

The last two sentences of Article V make certain subjects unamendable. The first sentence prohibited amendments before 1808 that would have affected Congress's power to restrict the slave trade or levy certain taxes on land or slaves. This sentence's restrictions on amendments have expired. The second sentence, which remains in effect, provides that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

There have been academic debates over the legal force of Article V's clause on unamendable subjects. Scholars have debated whether it is possible to amend provisions that embody fundamental norms or characteristics of the US government. Other debates have focused on whether Article V's procedures for amendment can themselves be amended. While it is generally accepted that constitutional amending provisions can be used to amend themselves, some argue that Article V cannot be amended to create new limitations on the amending power.

The guarantee of equal suffrage in the Senate is arguably subject to being amended through the procedures outlined in Article V. Law professor George Mader argues that the provision can be amended because it is not "self-entrenched", meaning it does not contain a provision preventing its own amendment. Mader suggests a two-step amendment process to repeal the provision that prevents the equal suffrage provision from being amended and then repeal the equal suffrage provision itself.

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