Amendments Enabling Amendments: Constitutional Evolution

The United States Constitution has a two-step process for amendments, which must be proposed and ratified before becoming operative. The Twenty-first Amendment, passed in 1933, is the only amendment to explicitly repeal an earlier one. It repealed the Eighteenth Amendment, which had established the prohibition of alcohol. The Thirteenth, Fourteenth, and Fifteenth Amendments, passed after the Civil War, are collectively known as the Reconstruction Amendments. The Fourteenth Amendment, in particular, granted Congress the power to enforce this amendment, leading to landmark legislation in the 20th century, including the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

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The Bill of Rights

The United States Constitution has had 27 amendments since it was put into operation on March 4, 1789. The first ten amendments, known as The Bill of Rights, were ratified on December 15, 1791. James Madison wrote these amendments to limit government power and protect individual liberties.

The First Amendment protects the right to speak and worship freely. It prohibits Congress from making laws establishing religion or abridging freedom of speech. The Second Amendment protects the right to bear arms. The Fourth Amendment safeguards citizens' right to be free from unreasonable government intrusion in their homes and requires a warrant for searches. The Seventh Amendment preserves the right to a trial by jury in suits at common law where the value exceeds twenty dollars. The Eighth Amendment prohibits excessive bail, fines, and cruel and unusual punishments. The Ninth Amendment states that the enumeration of certain rights in the Constitution does not deny or disparage other rights retained by the people. The Tenth Amendment reserves powers not delegated to the United States by the Constitution to the states or the people.

Since the Bill of Rights, there have been 17 additional amendments to the Constitution, with the most recent being the 27th Amendment, ratified in 1992. Approximately 11,848 proposals to amend the Constitution have been introduced in Congress since 1789, with members of the House and Senate typically proposing around 200 amendments during each two-year term.

The Reconstruction Amendments

These amendments were a response to the demands for equal rights from former slaves and were intended to guarantee the freedom and certain civil rights of the formerly enslaved, as well as to protect them and all citizens of the United States from discrimination. The 14th Amendment, in particular, transformed the Constitution from a document primarily concerned with federal-state relations and property rights to one that could be used to protect the rights of vulnerable minorities and hold the government accountable.

However, the promise of these amendments was undermined by state laws and federal court decisions in the late 19th century, particularly the Jim Crow laws that limited the rights of African Americans. It was not until the mid-20th century, with Supreme Court decisions like Brown v. Board of Education and civil rights legislation, that the full benefits of the Reconstruction Amendments were realised.

Congress and the Amendment Process

The authority to amend the US Constitution is derived from Article V of the Constitution. The process of amending the Constitution is intentionally challenging. This is to ensure that the Constitution remains durable.

Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, they can be proposed by a constitutional convention called for by two-thirds of state legislatures. However, none of the 27 amendments to the Constitution have been proposed by constitutional convention. Congress proposes an amendment in the form of a joint resolution, which is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR then assembles an information package for the states.

The Archivist of the United States, who heads 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 the informational material prepared by the OFR. The governors then formally submit the amendment to their state legislatures or call for a convention, depending on what Congress has specified.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50). When an amendment is ratified, the relevant state sends the Archivist an original or certified copy of the state action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are satisfactory, the Director acknowledges receipt and maintains custody of them.

Once the OFR verifies that it has received the required number of authenticated ratification documents, it 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 U.S. Statutes at Large and serves as official notice to Congress and the nation that the amendment process has been completed.

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State Ratification Conventions

The process of amending the United States Constitution is detailed in Article Five of the Constitution. This article outlines a two-step process for amending the nation's plan of government. Amendments must be properly proposed and ratified before becoming operative.

The theory is that the delegates of the conventions—who are presumed to be average citizens—might be less likely to bow to political pressure to accept or reject a given amendment than would be the case with state legislators. The United States Supreme Court has ruled that a popular referendum is not a substitute for either the legislature or a ratifying convention, and cannot approve or disapprove of an amendment.

The convention method of ratification is more complicated than the ratification method of state legislatures, as it is separate and different from a state legislature. State lawmakers have, since the 1930s, enacted laws to prepare for the possibility of Congress specifying the convention method of ratification. Many laws refer to a one-off event, with an ad-hoc convention convened solely for the purposes of the 21st Amendment. Other laws, however, provided guidelines for ratifying conventions in general.

The Twenty-first Amendment in 1933 is the only amendment to be ratified through state ratification conventions. Thirty-eight state conventions considered the ratification of this amendment, following a variety of procedures. The delegates at these conventions were mostly pledged to vote for the repeal of the Eighteenth Amendment, and did not engage in significant deliberation on an issue that already received strong popular support.

Supreme Court Interpretation

The process of amending the US Constitution is outlined in Article Five of the US Constitution. This article establishes a two-step process for amending the nation's plan of government. An amendment must be properly proposed and ratified before becoming operative. This process was designed to balance the need for change with the need for stability.

An amendment can be proposed and sent to the states for ratification in two ways. Firstly, it can be proposed by the US Congress if a two-thirds majority in both the Senate and the House of Representatives deem it necessary. Secondly, it can be proposed by a national convention called by Congress on the application of the legislatures of two-thirds of the states. However, this option has never been used.

To become part of the Constitution, an amendment must be ratified by three-fourths of the states. This can be done through the legislatures of three-fourths of the states or by state ratifying conventions in three-fourths of the states. The Twenty-first Amendment, ratified in 1933, is the only amendment to be ratified through state conventions. This amendment repealed the Eighteenth Amendment (ratified in 1919), which established the prohibition of alcohol.

The first ten amendments to the Constitution, known as the Bill of Rights, were ratified simultaneously on December 15, 1791. These amendments were designed to limit government power and protect individual liberties. They cover a range of topics, including freedom of speech, religion, and the right to bear arms, as well as due process and trial by jury.

Since the Constitution was put into operation on March 4, 1789, 33 amendments have been proposed by Congress and sent to the states for ratification. Of these, 27 have been ratified by the requisite number of states and are now part of the Constitution. The last amendment to achieve the necessary two-thirds support in both the House and the Senate for submission to the states was the District of Columbia Voting Rights Amendment in 1978.

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