Saturday, September 17, 2016

How are constitutional amendments passed?

"The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importations, not exceeding 10 dollars for each person."

- Article 1, Section 9, Paragraph 1 (a. k. a. the "Slave Importation Clause"), which contained one of the few parts of the Constitution that was temporarily immune to constitutional amendments

Slave who was brutally whipped

Compromises over slavery are a thing of the past

The original Constitution included many compromises over slavery - such as the Three-Fifths Clause (Source: Article 1, Section 2, Paragraph 3), the Slave Importation Clause (whose full text and citation are given above), and the Fugitive Slave Clause (Source: Article 4, Section 2, Paragraph 3) - perhaps the most detested power of them all in the Constitution. These compromises, however, are no more; because slavery has been completely abolished in American society, by the mechanism of constitutional amendment. How are these amendments, then, to be done?

Abraham Lincoln, the president who abolished slavery by means of a constitutional amendment

Amendments are "valid to all intents and purposes" as part of the Constitution

The answer is that the Constitution specifies an explicit process for how constitutional amendments are to be done. In the words of the Constitution: "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" (Source: Article 5).

Some clauses were temporarily immune to constitutional amendment (and one permanently)

The only things that could not be touched by constitutional amendment are that "no amendment which may be made prior to the year 1808" could influence certain parts of the Constitution that dealt with slavery (such as the Slave Importation Clause that I quoted earlier), and that "no state, without its consent, shall be deprived of its equal suffrage in the Senate." (Source: Article 5) The window for the abolition of the slave trade (and slavery generally) has long since passed; and depriving states of their "equal suffrage in the Senate" has not been proposed by anyone of late; so the power has virtually limitless latitude to affect anything else in the Constitution, provided that the amendment process is followed to the letter (which it has been for a total of 27 amendments - but that's a subject for another post). Since I have discussed the Slave Importation Clause in some detail in this post, it may be appropriate here to quote the text of the abolition of slavery by the Thirteenth Amendment, which was ratified (long after the year 1808) in 1865. Here is the quote: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation." (Source: Thirteenth Amendment)

United States Bill of Rights

The Bill of Rights and the abolition of slavery: The most important amendments

Besides the Thirteenth Amendment (which abolished slavery), the most important amendments to the Constitution are those found in the Bill of Rights, the collective name for the first ten amendments to the Constitution. In these amendments are found guarantees of freedom of speech, freedom of the press, rights for accused persons, and many other restrictions on the power of the government. These amendments to the Constitution are the parts most thought of when people discuss the Constitution, although they were not included in the original Constitution at all - a testament to the importance of the provision for how the constitution may be amended. If it were too easy to amend, I should make note here, the constitution's system of checks and balances could be eroded by a single act of Congress; but if it were too hard to amend, the wonderful amendments put in place since this time could never have happened; which would have been a terrible tragedy for this country - perhaps even an unmitigated disaster. Thus, the Constitution's provisions might be viewed as "just right" about how difficult it should be to change an amendment.

James Madison, the "Father of the Constitution"

The Constitution is the "supreme law of the land"

Finally, the Constitution said that "The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same" (Source: Article 7); and that "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." (Source: Article 6, Section 2) The ratification process was long since completed (see my post about this for further details), and the Constitution has been the "supreme law of the land" for over 200 years. Its record of success speaks for itself.

Another picture of James Madison

How much did the Constitution accomplish? (An answer from a Founding Father)

As James Madison wrote in the Federalist Papers, "The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution." (Source: Federalist No. 37)

United States Constitution

The Constitution was a smashing success

In short, the Constitution was a smashing success, and made America great for over two centuries. We would do well to heed it in America, and those outside this country would do well to emulate it, if they wish to experience that same greatness.

"Done in convention by the unanimous consent of the states present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty-seven and of the independence of the United States the twelfth. In witness whereof We have hereunto subscribed our Names ... "

- Closing language of the Constitution

If you liked this post, you might also like:

The legislative branch: Two houses of Congress limited by a presidential veto

The executive branch: A varied assortment of agencies led by one president

The judicial branch: The power of the courts (and its limits)

Part of a series about
The Constitution

Influences on the Constitution

Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
Public and private property: When can you take away someone's private property as taxes?
Polybius: A commentator on the "mixed constitution" of the Roman Republic
Magna Carta (1215): The creation of Parliament, and the limits upon the power of the King
Sir Edward Coke: The Petition of Right (1628) and other important writings
Virginia Declaration of Rights (1776): Another influence on the United States Bill of Rights
The Declaration of Independence (July 4, 1776): Philosophically important
Representative government: The advantages of a republic over a direct democracy
Baron de Montesquieu: Theory of separation of powers and checks & balances

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Congress versus the president: Five limits on presidential power (besides impeachment)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Making decisions for the police, military, and foreign diplomacy
Impeachment and removal: The most dramatic checks upon the power of presidents
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
The Second Amendment: Constitutional debates on the people's right to bear arms
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
Voting rights: Some important amendments about who is allowed to vote in this country

Epilogue: Some thoughts about civics education

← Previous page: The courts - Next page: Debates over ratification →

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