The Unchangeable Constitution: What Can't Be Amended

The constitution is a country's foundational legal document, outlining the rights and responsibilities of its citizens and the structure of its government. While it is typically created with the intention of enduring, it must also be adaptable to accommodate societal changes. Most constitutions include provisions for amendments, which can be made through specific procedures and requirements. However, certain parts of a constitution may be deemed unamendable, and these vary across different countries. For instance, in the United States, Article V outlines the procedures for amending the Constitution, and certain subjects within it are considered unamendable. In contrast, the United Kingdom, devoid of a written constitution, grants parliamentary sovereignty to its legislature, allowing for amendments with a simple majority. This diversity in amendment processes and unamendable subjects highlights the complexities in constitutional evolution.

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The US Constitution's Article V outlines procedures for amendments

The US Constitution's Article V outlines the procedures for amending the Constitution. It states that whenever two-thirds of both Houses of Congress deem it necessary, they shall propose amendments to the Constitution. Alternatively, if two-thirds of the state legislatures apply, Congress shall call a convention to propose amendments. In both cases, an amendment must be ratified by the legislatures of three-fourths of the states or by conventions in three-fourths of the states, as determined by Congress.

Article V also includes certain limitations on amendments made prior to 1808. These prohibited amendments that would have affected the Constitution's limitations on Congress's power to restrict the slave trade or levy certain taxes on land or slaves. Additionally, it ensured that no state could be deprived of its equal suffrage in the Senate without its consent.

While Article V establishes the process for amending the Constitution, there have been debates about whether it can be amended itself. Some scholars argue that it cannot be amended to create new limitations on the amending power. However, others contend that constitutional amending provisions can be used to amend themselves.

The process of amending the Constitution involves Congress proposing an amendment in the form of a joint resolution. This resolution is forwarded to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. Once the OFR verifies that three-fourths of the states have ratified the amendment, it drafts a formal proclamation for the Archivist to certify the amendment's validity. The certification is published in the Federal Register, officially adding the amendment to the Constitution.

Amendments require two-thirds of both Houses of Congress

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. The process requires a two-thirds majority vote in both the House of Representatives and the Senate. This means that two-thirds of the members present in each House must vote in favour of the proposed amendment. It is important to note that this is not a vote of all members, but only of those present, assuming a quorum is present.

The two-thirds requirement in both Houses of Congress is a significant hurdle for any proposed amendment to clear. Critics of this process argue that it is too strict and makes it challenging to secure the necessary approval. They contend that this strictness makes it difficult to incorporate modern circumstances and values into the Constitution. However, there are valid reasons for this stringent process. Requiring a substantial majority helps prevent constitutional provisions that are strongly opposed by a significant minority of the country from being enacted. This, in turn, maintains the nation's allegiance to the Constitution.

Once an amendment is proposed by Congress, 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, and it is then up to each State to decide whether to ratify it. For an amendment to become part of the Constitution, it must be ratified by three-quarters of the States (38 out of 50). This requirement further emphasises the need for a broad consensus in the amendment process.

It is worth noting that, historically, all amendments have been proposed by Congress, and no amendment has been passed through the convention method. Under the convention method, two-thirds of the state legislatures can request that Congress call a convention to propose an amendment. This method bypasses the federal government and was included by the drafters of the Constitution to address potential federal governmental abuses.

Three-quarters of states must ratify amendments

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. The Article sets out a few different ways in which the Constitution can be amended. One method is for Congress to propose an amendment, which requires a two-thirds majority vote in both the House of Representatives and the Senate. The other method is for two-thirds of state legislatures to call for a constitutional convention to propose amendments. This method has never been used. In either case, for an amendment to be added to the Constitution, it must be ratified by three-quarters of the states, or three-quarters of the states must hold conventions to ratify the amendment. Congress can choose the mode of ratification.

The three-quarters rule means that 38 out of 50 states must ratify an amendment for it to become part of the Constitution. This rule gives a small minority of the country the ability to prevent an amendment from being added to the Constitution. There is no time limit for the states to ratify an amendment, but Congress has recently specified that an amendment must be ratified within seven years of being proposed, or it will lapse.

The Archivist of the United States is responsible for administering the ratification process, and the Director of the Federal Register examines ratification documents for legal sufficiency and an authenticating signature. Once an amendment is ratified, it is immediately conveyed to the Director of the Federal Register, who maintains custody of the documents until the amendment is adopted or fails.

There is some debate about whether a state can rescind its ratification before the amendment process is completed. Some argue that once a state has ratified, it counts toward the required three-quarters, regardless of any subsequent actions. Others argue that a state can rescind its ratification as long as it does so before the amendment process is complete.

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No state can be deprived of equal suffrage in the Senate

The United States Constitution is a document that outlines the country's fundamental laws and principles. It establishes the rights and responsibilities of the federal government and serves as the supreme law of the land. While the Constitution is a living document that can be amended through specific procedures outlined in Article V, there are certain parts of it that are considered unamendable. One such provision is the guarantee that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

This particular clause, often referred to as the "equal suffrage" or "equal representation" clause, is a fundamental aspect of the Constitution's design. It ensures that each state, regardless of its size or population, has equal representation in the Senate, one of the two chambers of the United States Congress. This provision was intentionally included to protect the interests and rights of smaller states during the constitutional drafting process.

The inclusion of this clause in the Constitution was a result of debates and compromises made during the Constitutional Convention. Roger Sherman, one of the architects of the Connecticut Compromise, introduced this provision. He and others shared a concern that larger states, constituting three-quarters of the states, might use their majority power to abolish or severely impact the representation of smaller states in the Senate. By including this clause, the Founding Fathers aimed to protect the sovereignty and equality of all states within the Senate.

The "equal suffrage" clause has significant implications for the structure and functioning of the federal government. Firstly, it reinforces the concept of federalism by ensuring that states, as individual entities, have a direct say in the legislative process through their representation in the Senate. Secondly, it establishes a system of checks and balances by providing a counterweight to the House of Representatives, where representation is based on population. This balance helps prevent legislation that may favour more populous states while ensuring that the interests of smaller states are also considered.

While this clause guarantees equal representation in the Senate, it is important to note that it does not prohibit Congress from refusing to seat a Senator while investigating their election or qualifications. This interpretation was clarified in the Supreme Court case of Barry v. United States in 1929. Overall, the "no state shall be deprived of equal suffrage in the Senate" clause stands as an essential safeguard in the US Constitution, protecting the rights and representation of individual states in the federal legislative process.

Amendments can be proposed by a convention of state legislatures

The Constitution of the United States outlines two methods for proposing amendments. One of these methods involves a convention of state legislatures. This method, outlined in Article V of the Constitution, has never been used.

Article V states that whenever two-thirds of both Houses of Congress deem it necessary, they shall propose amendments to the Constitution. Alternatively, on the application of two-thirds of the state legislatures (34 out of 50), Congress shall call a convention for proposing amendments. In either case, the proposed amendments will only become law when they are ratified by three-fourths of the states (38 out of 50).

The convention method for proposing amendments has never been used. However, it has been speculated that states may encourage Congress to propose an amendment on a particular matter by applying for an Article V convention on that issue. For example, in 1981, thirty states requested a convention to propose a balanced budget amendment.

During the 1787 Constitutional Convention in Philadelphia, eight state constitutions included an amendment mechanism. Amendment-making power rested with the legislature in three of these states, and in the other five, it was given to specially elected conventions. The Articles of Confederation provided that amendments were to be proposed by Congress and ratified by the unanimous vote of all thirteen state legislatures. This was seen by Federalists as a major flaw, as it made constitutional reform extremely difficult.

The amendment process crafted during the Constitutional Convention was designed to balance "pliancy and rigidity". It aimed to prevent the Constitution from being "too mutable" while also allowing for the correction of "discovered faults".

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