Malcolm Rivera
The process of amending the US Constitution is outlined in Article V of the Constitution. It involves a proposal stage, where an amendment can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of state legislatures. Once proposed, an amendment becomes part of the Constitution upon ratification by three-quarters of the states (38 out of 50). This process has been criticised for being too strict and favouring the federal government, making it difficult to enact amendments that limit national government powers. However, the strict process ensures amendments are supported by a consensus and prevents provisions that are strongly opposed by a substantial minority. While the Supreme Court's intervention in the amendment process has been questioned, it is designed to allow for modern circumstances and values. Overall, the fairness of the amendment process depends on one's perspective, with some arguing for a return to the original meaning of the Constitution and others advocating for a more flexible approach to accommodate contemporary values.
| Characteristics | Values |
|---|---|
| Authority to amend the Constitution | Article V of the Constitution |
| Amendment proposal | Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures |
| Amendment ratification | Three-fourths of the States (38 of 50 States) |
| Amendment certification | The Archivist of the United States |
| Amendment process criticism | Too strict, biased in favor of the federal government, difficult to secure approval |
| Number of amendments | 27 |
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What You'll Learn
The role of the Supreme Court
The Supreme Court has the power to interpret the Constitution and can intervene if it believes it needs to "fix" the Constitution before a consensus can emerge. This interventionist approach has been criticised for potentially preventing the amendment process from operating and enacting changes. Critics argue that the Supreme Court should engage in non-originalist judicial interpretation to allow for modern circumstances and values to be incorporated into the Constitution. This is especially relevant when considering the lengthy process of achieving a consensus.
However, supporters of the Court's intervention argue that it is necessary to prevent constitutional provisions that are strongly opposed by a substantial minority of the country from being enacted. This intervention, they argue, has not excessively impeded constitutional change and has allowed for significant amendments over the nation's history.
The Supreme Court has also played a role in interpreting Article V of the Constitution, which outlines the amendment process. Article V includes two entrenchment clauses, one of which guarded the compromise allowing states to import slaves without penalty for 20 years. While some scholars argue that certain rights, such as those in the First Amendment, are so fundamental that they cannot be altered through the amendment process, no Supreme Court decision has ever been based on this theory.
In summary, the role of the Supreme Court in amending the U.S. Constitution is a complex and controversial issue. The Court's interpretation and intervention have been criticised for potentially undermining the amendment process, but some argue that it is necessary to protect the rights of minorities and ensure consensus. The Court also interprets key clauses within Article V, which outlines the amendment process, but it has not based any decisions on the theory that certain rights are unalterable.
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Article V's duality
Article V of the United States Constitution outlines the process for amending the Constitution. It is the result of compromises made during the 1787 Constitutional Convention between two groups with opposing views on the role of the national legislature in the constitutional amendment process. The first group contended that the national legislature should have no role in the process, while the other argued that proposals to amend the Constitution should originate in the national legislature and be ratified by state legislatures or state conventions.
Article V provides two methods for proposing amendments: the first is by a two-thirds majority vote in both the House of Representatives and the Senate, and the second is by a constitutional convention called for by two-thirds of the state legislatures. However, despite being a viable option, the second method has never been used. Once an amendment is proposed, it must be ratified by either the legislatures of three-quarters of the states or by ratifying conventions in three-quarters of the states.
The duality in Article V has been criticised for being too strict and biased in favour of the federal government, making it difficult to enact amendments that would limit the national government. This strictness is defended as a way to prevent amendments that are strongly opposed by a substantial minority of the country from being enacted, thus maintaining national allegiance toward the Constitution. However, others argue that the Supreme Court's intervention in the amendment process can impede constitutional change.
The amendment process outlined in Article V has been the means through which significant changes, such as the adoption of the First Amendment and the Bill of Rights, have been made to the Constitution. While it may be challenging to amend the Constitution, the process ensures that any changes made have the support of a broad consensus.
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The certification process
The second method, which has never been used, is through a constitutional convention called for by two-thirds of state legislatures. This method, favoured by Alexander Hamilton, would empower state legislatures to act as a check on the national authority.
Once an amendment is proposed, it must be ratified. Ratification can occur in two ways: through the legislatures of three-quarters of the states (38 out of 50), or via ratifying conventions in three-quarters of the states. This second method has only been used once, in 1933, for the Twenty-First Amendment.
The certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete. This process ensures the legitimacy and transparency of any changes made to the Constitution.
It's worth noting that there is some ambiguity regarding a state's ability to rescind its ratification before the amendment process is complete. While some argue that a state's initial ratification is final, others contend that a state can change its mind as long as it's before the amendment's finalisation.
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The President's involvement
The process of amending the US Constitution is outlined in Article V of the Constitution. It involves proposing an amendment and subsequent ratification. Notably, the President does not have a constitutional role in the amendment process. The joint resolution proposing an amendment does not require presidential approval, and it is not presented to the President for their signature or veto. This is because Article V does not include such a requirement, and the Supreme Court affirmed in Hollingsworth v. Virginia (1798) that constitutional amendments do not need the President's approval or veto.
While the President is not directly involved in the amendment process, they can play a ceremonial role during the signing of the certification. In recent history, this ceremony has been attended by various dignitaries, including the President. For example, President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon witnessed the certification of the 26th Amendment.
The process of proposing an amendment typically begins with Congress, which can propose an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, a constitutional convention can be called for by two-thirds of the state legislatures to propose amendments. However, this method has never been used for any of the 27 amendments to the Constitution.
Once an amendment is proposed, it must be ratified. Ratification can occur in two ways: by legislatures of three-quarters of the states (38 out of 50 states) or by ratifying conventions in three-quarters of the states. The latter method has only been used once in American history, in the 1933 ratification of the 21st Amendment.
The process of amending the Constitution has been criticised for being too strict and biased in favour of the federal government. Some argue that it is too difficult to secure approval from two-thirds of both houses of Congress and three-quarters of the states. Additionally, there is a debate about whether a state can rescind its ratification before the amendment process is completed. While some commentators say yes, others argue that a state's ratification is final and cannot be rescinded.
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The two methods of proposing amendments
The process for amending the US Constitution is outlined in Article V of the US Constitution. There are two methods for proposing amendments, both of which require a two-thirds majority. The first method involves a two-thirds majority vote in both the House of Representatives and the Senate, also known as Congress. This method has been used for all 33 amendments submitted to the states for ratification. The second method, which has never been used, is a constitutional convention called for by two-thirds of the state legislatures. This method was intended to enable state legislatures to “erect barriers against the encroachments of the national authority".
The first step in the amendment process is for Congress to propose an amendment in the form of a joint resolution. This joint resolution does not require the approval or signature of the President before it is sent to the states for ratification. Once an amendment is proposed, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process.
An amendment becomes part of the Constitution as soon as it is ratified by three-quarters (38 out of 50) of the states. The Archivist certifies that the amendment is valid and has become part of the Constitution, and this certification is published in the Federal Register and U.S. Statutes at Large. This certification serves as official notice to Congress and the nation that the amendment process is complete.
While the second method of proposing amendments through a constitutional convention has never been used, there have been calls for a new convention. Some argue that the Constitution has been corrupted by gridlock, excessive influence by interest groups, and members of Congress who focus excessively on getting reelected. However, others believe that recent efforts to amend the Constitution go too far and are an overreaction to some people's dissatisfaction with the government.
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Frequently asked questions
The process for amending the US Constitution is outlined in Article V of the US Constitution. Amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of state legislatures. To become part of the Constitution, an amendment must be ratified by three-quarters of the states.
The process has been criticised for being too strict and biased in favour of the federal government, making it difficult to enact amendments that would limit the national government. However, others argue that the strict process is necessary to prevent constitutional provisions that are strongly opposed by a substantial minority of the country from being enacted, preserving the nation's allegiance toward the Constitution.
No, the process has never been formally changed. However, the Supreme Court has occasionally intervened to interpret the Constitution in a way that reflects modern circumstances and values. This has been criticised for impeding the amendment process and preventing consensus from emerging.
No, none of the 27 amendments to the Constitution have been proposed by a Constitutional Convention. The first method for crafting and proposing amendments, through Congress, has been used for all amendments submitted to the states for ratification.
