Amending the United States Constitution
Expanding American Freedoms Through Constitutional Changes
James Madison, a framer of the United States Constitution, wrote that, “In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce.” [1] The Constitution has been amended only twenty-seven times. Although many amendments have been proposed over the course of American history since the ratification of the Constitution, only six other amendments were sent to the states but were never adopted. These included the most recent Equal Rights Amendment and an amendment regarding Congressional representation for the District of Columbia.
Amending the Constitution
The Constitution can be amended using two methods. The first method begins in the Congress. If two-thirds of the members of both chambers (House of Representatives and the Senate) vote for the amendment, it is sent to the various state legislatures. Three-quarters of the state legislatures must approve the amendment before it can be adopted. All twenty-seven current Amendments were adopted using this method excepting the Twenty-First Amendment.
The second method for amending the Constitution involves the convening of conventions. This method has never been used. A Constitutional Convention can be called by Congress or by the Petition of two-thirds of the states, resulting in conventions involving three-quarters of all states. In the case of the Twenty-First Amendment repealing Prohibition, established in the Eighteenth Amendment, the Amendment was ratified in 1933 through state conventions.
Amendments as a Response to Contemporary Issues
Members of the House of Representatives are usually the most vulnerable to constituent concerns, serving only two-year terms. Hence, it is fairly common to see amendments regarding contemporary issues arise frequently in this chamber. In recent years, members have discussed varying forms of a “Right to Life” Amendment, an Amendment criminalizing the desecration of the United States’ flag, and an Amendment defining marriage.
All three of the above noted proposed amendments came as a response to legal challenges and court decisions. Ever since Roe v. Wade (1973), conservatives have sought ways to reverse legal abortions. A “Flag Desecration Amendment” was proposed after two Supreme Court cases interpreted flag burning as protected under the Constitution’s guarantee of freedom of speech.
Amendments defining marriage as between a male and a female arose in response to several state actions, notably Massachusetts and California, which legalized same sex unions. Whereas some interpretations of Article IV of the Constitution regard the “Full Faith and Credit” clause as a means to force all states to accept such marriages if performed in another state, members of Congress sought to constitutionally eliminate such possibilities while at the same time defining “marriage” itself.
Amending Broadens Freedoms of Americans
Criticism of proposed amendments noted above usually involves the observation that amendments should broaden freedoms and not limit them through constitutionally enshrined discrimination. Beyond the Bill of Rights, subsequent amendments ended slavery, expanded the franchise, and generally gave citizens a greater voice in government by eliminating such voter restrictions as the poll tax.
Using the amending process to address contemporary social issues may, according to scholars, undermine the very nature of the amending process which may be, based on the Constitution’s framers, to more adequately complete the on-going process of governance and the expansion of personal freedoms as the ages progressed.
Sources:
[1] Edwin C. Rozwenc and Frederick E. Bauer, Jr., Liberty and Power in the Making of the Constitution (Boston: D.C. Heath and Company, 1963), p. 6.
Alfred H. Kelly and Winfred A. Harbison, The American Constitution: Its Origins and Development 5th Ed. (W. W. Norton & Company, 1976)
United States Constitution
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