Sunday, December 11, 2011

Article V - Amendment

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.


pamjrp said...

Article V — Amendment

Note the following small detail: the President is not a part of the amendment process. So what difference does it make when the President says that he or she does not like a particular proposed amendment, and they will not support it? None. At least, not technically.

Now, obviously, the world is not sterile, particularly in Washington. When a President expresses reservations or dislike of an amendment or proposed amendment, it is obvious that any President worth electing knows darn well that the Executive has no veto over any amendment. The process is left completely in the hands of the Congress and/or the States. However, the President, as presumed head of a political party, has power over those in the same party - or, if not power, at least some influence.

Because two-thirds of both houses must pass an amendment, and two-thirds of both houses are required to overturn a presidential veto, the framers may have decided to leave the President out for the sake of brevity. However, since the arguments of the President for the veto could change some minds between the passage vote and the veto vote, it is more likely the Framers just felt that amendments were something best left to the states and the representatives of the states.

The Supreme Court did deal with this issue, following the ratification of the 11th Amendment. It was argued that the amendment was invalid because the amendment was not passed to the President prior to being passed on to the states. But in Hollingsworth v Virginia (3 USC 378 [1798]), the Court wrote (in a footnote): "The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution."

pamjrp said...

The Amendment Process

There are essentially two ways spelled out in the Constitution for how to propose an amendment. One has never been used.

The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd).

The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.

Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by simple majority.

The Constitution, then, spells out four paths for an amendment:

•Proposal by convention of states, ratification by state conventions (never used)
•Proposal by convention of states, ratification by state legislatures (never used)
•Proposal by Congress, ratification by state conventions (used once)
•Proposal by Congress, ratification by state legislatures (used all other times)
It is interesting to note that at no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 US 378 [1798]):

The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.

pamjrp said...

Ratification Conventions

The normal course of events, when an amendment to the Constitution has been desired by the people, is for Congress to pass the amendment and for the state legislatures to then ratify. Congressional proposal of the amendment is by a two-thirds majority vote in both houses. State ratification is by three-fourths majority.

The Constitution does provide for one other way to ratify: by convention. A state convention differs from the state legislature in that it is usually an entirely separate body from the legislature. This introduces a different political dynamic into the amendment process.

The only time that conventions have been used was in the case of the 21st Amendment, which overturned the 18th Amendment. The 18th abolished alcohol manufacture or sales on a national scale. The 21st repealed the 18th, stating instead that each state shall have the ability to set its own laws regarding liquor. The text of the 21st specifically stated that it would have to be ratified by conventions held in each state:

3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Why specify conventions over legislatures, as every other amendment had been ratified up to then? The thought was that the people of the conventions, which would typically be average citizens, would be less likely to bow to political pressure to reject the amendment than elected officials would be. Note that the Supreme Court has ruled that a popular referendum is not a substitute for either the legislature nor a convention, nor can a referendum approve of or disapprove of the legislature's or a convention's decision on an amendment.