Amending the Constitution

One of the most important features of the Constitution is that it can be altered, expanded or contracted without replacing the entire document. The mechanism for changing the Constitution, the amendment process, is outlined in Article V.

In its more than two hundred year history, the Constitution has been amended twenty-seven times, a remarkably small number given the complexity of American government and the fact that the first ten (and the twenty-seventh) amendments were proposed during the First Congress.

The Amendment Process

There are two major steps in the amendment process. First, amendments must be proposed. Amendments can be proposed in two different ways. An amendment can be proposed by the Congress if two-thirds of the members of both the House of Representatives and the Senate vote in favor of it. Alternatively, two-thirds of the legislatures of the fifty states can call for a constitutional convention for the purposes of proposing amendments to the Constitution. Since the Constitution was ratified in 1789, numerous amendments to the Constitution have been proposed by the Congress, but the states have never voted to call for a new constitutional convention.

Once an amendment to the Constitution has been proposed, it must be ratified to become "valid to all Intents and Purposes, as Part of [the] Constitution." Article V specifies two methods by which proposed amendments can by ratified. First, an amendment can be ratified if three-fourths of the legislatures of the several states vote in support of it. Alternatively, the Congress can direct the states to establish special ratifying conventions to consider proposed amendments. If three-fourths of these conventions approve the amendment, it is ratified and becomes part of the Constitution.

Every amendment to the Constitution except the Twenty-First Amendment has been ratified by voting in state legislatures. In the case of the 21st Amendment, which repealed the Eighteenth Amendment, the Congress instructed the states to call for ratification by convention rather than by state legislatures. The choice of method may have been decisive. The "wets" in Congress, i.e. those in favor of repealing the 18th Amendment, believed that the repeal amendment would fare better in state conventions than in the conservative-dominated state legislatures.

While there has never been a sufficient number of states calling for a constitutional convention to compel the Congress to convene one, an effort in the 1980s and early 1990s to call a convention for the express purpose of considering a balanced budget amendment nearly succeeded. However, concerns that all aspects of the Constitution would be open for amendment if such a convention were convened caused the effort to fall short.

The First Ten (Eleven) Amendments

When the First Congress convened, one of its first promised orders of business was to consider a series of Amendments to the Constitution, most of which were intended to become part of a "bill of rights." (Recall that to secure the support of the Antifederalists in the fight for ratification, the Federalists had promised to add a bill of rights to the Constitution after it was in effect.)

However, once the First Congress was in session, most of its members were more interested in getting down to the "business of government" than they were in considering amendments to the Constitution. Indeed, if not for James Madison's persistence, repeatedly rising on the House floor to urge the House to consider the promised Constitutional amendments, it is unlikely that the First Congress would have considered them at all.1

The Congress' reluctance to consider amendments to the Constitution was probably, at least in part, due to the fact that dozens of amendments had been proposed in the various state ratifying conventions. By considering any amendments, members of Congress were likely afraid that nothing else would be accomplished until all of the proposed amendments were considered and voted upon. Madison, however, studied all of the proposed amendments, discarded ones he found distasteful, consolidated similar amendments and pared the list down to just ten.2 By a two-thirds majority in each house, the Congress formally proposed Madison's ten amendments along with two others. They were then sent to the states for ratification and ten of the proposed amendments were ratified and, thereby, became part of the Constitution. The first ten amendments are often referred to as the Bill of Rights.

While, beginning with the 18th Amendment, the Congress has established a seven year time limit on the ratification of amendments, there was no time limit set on the ratification of amendments proposed before that time. One of the original twelve proposed amendments was not ratified until 1992, two-hundred and three years after it was proposed by the First Congress. Upon ratification, it became the 27th Amendment to the Constitution.

Categorizing Amendments to the Constitution

The twenty-seven Amendments to the Constitution can roughly be categorized into six broad categories. The first ten amendments are collectively known as the Bill of Rights. For the purposes of this categorization, the 27th Amendment can be included with the first ten because it was proposed by Madison at the same time as the first ten amendments. It is also appropriate to include it with the first ten because it was intended to provide the people protection from unscrupulous elected officials who might abuse their offices for financial gain.

A second set of amendments has specifically addressed the scope of the national government's authority. The 11th Amendment was proposed and ratified in response to a Supreme Court decision regarding sovereign immunity. The 16th Amendment authorized the national government to directly tax the incomes of individuals.

Three Amendments, the 13th, 14th and 15th Amendments, were proposed and ratified shortly after the Civil War and were aimed at extending civil rights and liberties to former slaves. Another five amendments, the 12th, 17th, 20th, 22nd, and 25th Amendments have made changes in terms or methods of electing Presidents, Vice-Presidents and Senators. Four amendments, the 19th, 23rd, 24th and 26th (the 15th can also be included in this category) expanded the number of persons eligible to vote in national elections. Two amendments, the 18th Amendment, which prohibited the consumption of alcohol, and the 21st Amendment, canceled each other out

Why haven't there been more amendments?

Why haven't there been more amendments to the Constitution? In large part, credit for the absence of more amendments can be given to the ingenuity of the Framers and the flexibility they built into the document. As has been noted, in many instances the Constitution was left intentionally vague, leaving particular aspects of the document for future generations to interpret.

Unsuccessful Amendments

Several suggested and even formally proposed amendments have been unsuccessful. These are some of the more prominent unsuccessful amendments.

Limitation on the Size of the House
One of the original Amendments proposed by Madison, it would have limited the number of House members to not more than one per 50,000 citizens (the current ratio is approximately 1:600,000).

Equal Rights Amendment (ERA)

Stated that "Equality of rights under the law shall not be denied or abridged . . . on account of sex." Failed to win support of 3/4 of the state legislatures.

The following amendments have never been formally proposed by the Congress, but several votes have been held on each in both houses.

Balanced Budget Amendment
Various versions exist, but all would require a balanced budget each year.

Anti-Flag Burning Amendment
Would forbid burning of the American flag. 

Gay Marriage Ban
Would limit the national government's definition of marriage to male-female unions and would not require states to recognized same-sex unions formed in other states.

Religious Freedom Amendment
Seeks to restore religious freedoms which have been limited by a series of Supreme Court decisions (see Religious Liberty).

There has also been a general reluctance to include in the Constitution things which could reasonably be accomplished without amending the Constitution. For example, there has been an on-going debate for decades about amending the Constitution to require the Congress and the President to balance the national budget each year. However, many people have argued that including a balanced budget provision in the Constitution is unnecessary because the Congress and President could and should balance the budget without being compelled to do so. Others have further argued that a balanced budget amendment would limit the ability of the national government to respond to crises such as wars and natural disasters. Still others have warned that including any reference to the budget in the Constitution might invite the Supreme Court's involvement in the budget process, skewing the balance of powers so carefully established by the Framers. Similar concerns have been raised about other proposed amendments to the Constitution.


NOTES
1. Rex E. Lee, A Lawyer Looks at the Constitution (Provo, Utah: Brigham Young University Press, 1981), 24.
2. Ibid., 25.