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August 2016 Policy Study, Number 16-2

   

Restoring Constitutionalism, Federalism, and Solving our National Fiscal Crisis: The Possibility of an Article V Convention of the States

   

The Constitution and the Amendment Process

   

 

Article V of the United States Constitution addresses the amendment process. Article V states:

 

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.[23]

 

When drafting the Constitution, the Founding Fathers understood that the document may need to be revised and changed. The Founders understood that change must be rooted in prudence, and thus they established a framework for amending the Constitution. Just as with checks and balances and the separation of powers, the Framers intended the amendment process to be difficult in order to preserve the principles which the Constitution was designed to protect. “Changing the document [Constitution] too often would weaken the Constitution, and cause it to be treated as an ordinary statute, which can be altered by the passions of the moment,” noted constitutional scholar Matthew Spalding.[24] Spalding stated that:

 

At key moments, under unusual circumstances, the amendment process expands our constitutional discourse beyond the courts and our political institutions to engage the American people in national deliberations about core principles and fundamental questions, and in so doing invokes their sovereign authority, through the extraordinary process of constitutional lawmaking, to settle the issue at hand.[25]

 

During the Constitutional Convention (Philadelphia Convention) of 1787, delegates even debated whether or not a bill of rights was needed within the document. The debate is a story for a different essay, but the original ten amendments, or Bill of Rights, was eventually added after the ratification of the Constitution. Altogether, the Constitution has been amended 27 different times, and many more amendments have failed. Many of the constitutional amendments have been a result of periods of great political turmoil or change.

 

The American Civil War resulted in the 13th, 14th, and 15th Amendments, sometimes referred to as the Civil War or Reconstruction Amendments because of their relation to ending slavery and establishing civil rights for blacks.

 

The Progressive Era of the early 20th century witnessed a fundamental political change, not only with the notion of the “living” Constitution, but also the passage of the 16th, 17th, 18th, and 19th Amendments. These Progressive Era amendments were closely aligned with the Progressive movement of American politics. The 16th Amendment established an income tax (ironically, the first income tax was struck down as unconstitutional by the Supreme Court), the 17th Amendment established the direct election of United States Senators, the 18th Amendment (eventually repealed) established the Progressive moral vision of the prohibition of alcohol, and finally, the 19th Amendment established suffrage rights for women.

 

Article V the Constitution establishes two ways the document can be amended. The first approach is when “an amendment proposed by Congress must have the votes of two-thirds each of the House of Representatives and the Senate,” and the second option is “two-thirds of the states must call for a constitutional convention to propose amendments.”[26] The second option, which has never been tried, is known as the Article V convention or the convention of the states. In terms of ratification, under both options, an amendment must be ratified by three-quarters of the states.[27]

 

Article V, Spalding argues, “has the double effect of affirming the Constitution’s foundation in republican self-government, yet making the amending task sufficiently difficult and broad-based to protect the document and elevate it to the status of higher law.”[28] In other words, the “Framers believed that the amendment process would protect the Constitution from undue change at the same time it would strengthen the authority of the Constitution with the people.”[29] 

 

As Matthew Spalding explains:

 

This [the amendment process] forces the development of overwhelming and long-term majorities, and is intended to assure that constitutional amendments will be rare and pursued only after careful and serious consideration, when it is necessary to address an issue of great national magnitude, consistent with the deeper principles of American constitutionalism, and when there is a broad-based consensus among the American people, throughout the states.[30]

 

Spalding further argues that the “amending process affirms the rule of law and links our highest law back to the republican idea that government ultimately derives its just powers and legitimate authority from the consent of the governed… .”[31] This means that the people, who are sovereign under the Constitution, “can alter their government to affect their safety and happiness.”[32] Under the Constitution, the Framers provided tremendous responsibility to citizens, and the amendment process provides us with the power to change the Constitution. This is an awesome power which must be considered with prudence and measured within the framework of the principles of the American Founding.

 

   

 

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