Amendment XXVIII? The Amendment Process – The Future of the Constitution, Part I

S.J. Res. 19 brought a simmering debate back into the spotlight for a brief moment: what will be the next amendment to the Constitution?

Part I of “The Future of the Constitution” series.

In celebration of Constitution Day on September 17, 2014, we are dedicating the week to a new series, “The Future of the Constitution“. Designed to examine the Constitution and its Amendments, “The Future of the Constitution“ will examine the amendment process, analyze existing, failed, and prospective amendment, take a look at the constitutional quandary found in campaign finance reform in the post-Citizens United era, and end with a review of retired Supreme Court Justice John Paul Steven’s newest book, “Six Amendments: How and Why We Should Change the Constitution”.

S.J. Res. 19 – otherwise known as the Udall Amendment – awoke public consciousness to the notion of amending the U.S. Constitution for the 28th time. S.J. Res. 19 concerned the presence of money in politics, and sought to resolve the debate on campaign finance reform’s constitutionality in the wake of the landmark Supreme Court case, Citizens United v. Federal Election Commission.

The Campaign Finance Amendment’s death by failed cloture vote – and the future of constitutional campaign finance reform – will be analyzed in a different post. Part I, which begins below, will examine the process by which the Constitution can be amended.

Constitutional History

The Constitution of the United States was created, ratified, and brought into force in the late 1780’s, revolutionizing the American government. Separated into seven articles, the Constitution: created a strong federal government that would contend with national issues; separated that government into three branches – Legislative, Executive, and Judicial – and outlined the powers and restraints on each; defined the relationship between the federal government and the states; outlined the process of amending the Constitution; and much more.

The Constitution was a carefully thought-out and well-debated document, which went through numerous revisions before its ratification. As the United States has grown and encountered new challenges, the Constitution has served as the country’s guide. The Constitution maintains the checks and balances system that defines the federal government, ensures the fidelity of all laws to its rules, and serves as a guiding hand for the future development of the United States.

While it is the product of the American Founder’s wisdom and foresight, it cannot be expected to be timeless or perfect. Eighteen times, the country has come together to alter – to amend – the Constitution. These amendments occurred for different reasons. Some were designed to allay the fears of those who thought the federal government would overwhelm and rule over the states, or answered questions about the nature of government and how it operates. Others were the product of great societal movements, where constitutional authority was required to protect all American and guarantee their inclusion in the rights inherent to all Americans.

Future amendments to the Constitution will most likely fall into these categories. What will be the XXVIII Amendment to the Constitution? Before that question can be broached, the process by which an Amendment is enacted must be observed.

Amending the Constitution

The Constitution was purposefully designed to be difficult to amend. Detailed in Article V, the long process of amending the document involves a high-threshold vote in both houses of Congress and a majority ratification vote in three-fourth of the state legislatures – currently, 38 states. This strenuous process was designed so that fleeting passions and cultural upheavals would not be able to mar the Constitution, but drawn-out and considered dialogue would be able to alter the future of the document, and the United States as a whole.

There is also a process outlined in Article V for staging a national convention – called for by two-thirds of the states – to propose amendments , but this event has never taken place.

Assuming that a prospective amendment would begin through the Congressional model, the amendment would be introduced by a Senator or Representative, much like any other piece of legislation. This is a common occurrence – regularly, hundreds of potential amendment are introduced each Congress. These potential amendments almost always die during the next step of the process: committee approval.

Similar to other pieces of prospective legislation, a prospective amendment is delegated to a congressional committee based on the subject of the amendment for review. Inside the committee, hearings might be held to analyze the prospective amendment, experts may be called upon to provide testimony regarding the amendment, and the text of the amendment itself might undergo alterations. The end product of the process might look significantly different from what was introduced, much like any other bill.

If the amendment is approved by the majority of the committee, and if no other committee believes the amendment to be under its purview, then the proposed amendment may move to the floor of whichever house it originated in. Subject to rigorous debate, the proposed amendment must not only survive but thrive in this challenging environment. To be officially proposed by Congress in the form of a Joint Resolution, the amendment must be approved by a two-thirds vote by both the House of Representatives and the Senate. This high threshold is usually reserved for important procedures such as the ratification of international treaties in the Senate or a Presidential veto override.

Assuming the Joint Resolution is enacted – which in a testament to the structural challenges inherent to the amendment process, has occurred only thirty-three times – the proposed amendment moves onto the state legislatures. Typically, the governor of each state will introduce the proposed amendment to the state’s legislature, though that process is a formality; the legislature can begin the ratification process as it wishes. Within a time limit set by Congress – almost always seven years – the state legislatures must ratify the proposed amendment by way of a majority vote.

If the time limit for ratification expires without the ratification of three-fourths of the states, and the limit is not extended by Congress, then the prospective amendment dies and can no longer be legally ratified.

If three-fourths of the states do ratify the amendment though, then the Constitution of the United States has been expanded, and the amendment is now an official part of American law!

Next Time in “The Future of the Constitution”

Part II of this series will outline the twenty-seven amendments to the Constitution that have been ratified, and see how and why these amendments were created and enacted.

From there, Part III will delve into prospective amendments that failed to achieve ratification. There have been six amendments that have overcome the Congressional hurdles towards ratification, but failed to achieve approval of three-quarters of the states. Their potential effects on the United States, as well as the reason for their failed ratifications, will be discussed.

Part IV will examine proposed amendments that did not leave Congress, but which evince significant trends in American thought, and have the potential to go further into the ratification process. Considering that it took almost 203 years for Amendment XXVII to go from proposal to ratification, nothing is off-limits for these potential amendments.

Finally, in Part V, we will examine the future of the Constitution, and what amendment might endure the long journey to become Amendment XXVIII.

~ John Isidore