With the recent media blitz surrounding the Federal Marriage Amendment (a/k/a the same-sex marriage ban), I went back to the books to refresh my memory on the process for amending the Constitution. My hope is that this post helps educate you not only to the ratification process, but also to assuage any fears you may have of an imminent Constitutional crisis.
Procedure
As set forth in Article V, the Constitution may be amended in one of two ways: either a resolution proposing an amendment to the States is passed by 2/3 of each House of Congress and then approved by 3/4 of the States' legislatures or Conventions, or, 2/3 of the States mandate that Congress call a national Convention for the purpose of proposing amendments and any such amendments so proposed must receive the approbation of at least 3/4 of the States' legislatures or Conventions. Each Amendment to the Constitution has originated through a joint resolution in Congress. With the exception of the Twenty-First Amendment (ratified thru approval of Conventions in the States), each Amendment has been ratified thru approval by 3/4 of the States' legislatures. Ratification of any amendment proposed today requires approval by 38 of the 50 States.
Unanswered Questions
Interestingly, Article V does not set forth any guidelines with respect to the composition of or voting requirements for a national Convention to propose amendments to the Constitution. There is much controversy as to how such a convention would operate, how its delegates would be chosen, the necessary vote required to propose a particular amendment, and many other lingering questions.
In addition, the customary practice in Congress has been to interpret the Constitution's 2/3 requirement for sending amendments to the States as 2/3 of those members present (assuming that a quorum exists at the time that the vote is cast) and not necessarily a two-thirds vote of the entire membership elected and serving in the two houses of Congress.
Article V also does not set forth the ratio required for the approval of amendments presented to the States by either Congress or a Convention. It does not seem consistent that the ratio required for ratification in each State should be simple majority when the ratification process at all other stages requires a supermajority. This is especially true when one considers that under a simple majority approval model, it is mathematically possible that only 37.6% of the people in the country could amend the Constitution. That is, if 50.1% of the people in 3/4 of the States approved an amendment, then the Amendment would be ratified and control 100% of the people.
Fun Facts
The last Amendment to the Constitution, the Twenty-Seventh Amendment, was ratified in 1992. The Amendment, which prohibits the alteration of the salary of members of Congress until after an intervening election of House members has occurred, was proposed to the States by the First Congress in 1789. The Supreme Court held in Coleman v. Miller that unless Congress specifies atime limit within which the state legislatures (or conventions held in the states) must act upon the proposed amendment, then the amendment remains pending business before the state legislatures (or conventions) until such time as the requisite number of States either ratifies or defeats the proposed amendment. Due to this odd quirk, there are still four amendments pending before the States-- Article One of the original Bill of Rights (proposed in 1789), the Titles of Nobility Amendment (proposed in 1810), the Corwin Amendment (proposed in 1861) and the Child Labor Amendment (proposed in 1924).
Procedure
As set forth in Article V, the Constitution may be amended in one of two ways: either a resolution proposing an amendment to the States is passed by 2/3 of each House of Congress and then approved by 3/4 of the States' legislatures or Conventions, or, 2/3 of the States mandate that Congress call a national Convention for the purpose of proposing amendments and any such amendments so proposed must receive the approbation of at least 3/4 of the States' legislatures or Conventions. Each Amendment to the Constitution has originated through a joint resolution in Congress. With the exception of the Twenty-First Amendment (ratified thru approval of Conventions in the States), each Amendment has been ratified thru approval by 3/4 of the States' legislatures. Ratification of any amendment proposed today requires approval by 38 of the 50 States.
Unanswered Questions
Interestingly, Article V does not set forth any guidelines with respect to the composition of or voting requirements for a national Convention to propose amendments to the Constitution. There is much controversy as to how such a convention would operate, how its delegates would be chosen, the necessary vote required to propose a particular amendment, and many other lingering questions.
In addition, the customary practice in Congress has been to interpret the Constitution's 2/3 requirement for sending amendments to the States as 2/3 of those members present (assuming that a quorum exists at the time that the vote is cast) and not necessarily a two-thirds vote of the entire membership elected and serving in the two houses of Congress.
Article V also does not set forth the ratio required for the approval of amendments presented to the States by either Congress or a Convention. It does not seem consistent that the ratio required for ratification in each State should be simple majority when the ratification process at all other stages requires a supermajority. This is especially true when one considers that under a simple majority approval model, it is mathematically possible that only 37.6% of the people in the country could amend the Constitution. That is, if 50.1% of the people in 3/4 of the States approved an amendment, then the Amendment would be ratified and control 100% of the people.
Fun Facts
The last Amendment to the Constitution, the Twenty-Seventh Amendment, was ratified in 1992. The Amendment, which prohibits the alteration of the salary of members of Congress until after an intervening election of House members has occurred, was proposed to the States by the First Congress in 1789. The Supreme Court held in Coleman v. Miller that unless Congress specifies atime limit within which the state legislatures (or conventions held in the states) must act upon the proposed amendment, then the amendment remains pending business before the state legislatures (or conventions) until such time as the requisite number of States either ratifies or defeats the proposed amendment. Due to this odd quirk, there are still four amendments pending before the States-- Article One of the original Bill of Rights (proposed in 1789), the Titles of Nobility Amendment (proposed in 1810), the Corwin Amendment (proposed in 1861) and the Child Labor Amendment (proposed in 1924).
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2 comments:
Thank you for the info. This was a great resource.
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