Article V: The Amnedment Process

Article V, the Amendment Process is short and to the point.

  • The Constitution may be amended if Congress can get 2/3 of both Houses to agree on an amendment.  They will then present it to the States for ratification. Ratification requires 3/4 of all the States to approve the amendment.
  • There is no time limit for amendments to expire.
  • The State Legislatures can also call a Constitutional Convention if 2/3 of the States agree. They can then discuss and propose amendments, to be ratified by the States.
  • Amendments do not go into effect until they meet the required number for ratification.

The first and fourth clauses of the Ninth section of Article I could not be amended until the year 1808:

  • The importation of slaves
  • No capitation or other direct taxes.

In addition, the States could not lose their representation in the Senate without the approval of the States, which they willingly gave up in the Seventeenth Amendment.

The Founders deliberately made the Constitution difficult to amend, to make sure it wasn’t changed on a whim, or by a minority of people. They hoped that this would make any proposals well thought out, and the ramifications understood.

Not every amendment is a good idea, and while most have been ratified, some have not.  The Corwin Amendment, which is still active, was an amendment passed by Congress that eliminated the ability of Congress to abolish slavery. It was passed on March 2, 1861, just before the outbreak of the Civil War. It is still pending before the States.

Other amendments still pending before the States:

  • Change Representative apportionment from 1/30,000 to 1/40,000.
  • Titles of Nobility Amendment. Essentially states that any citizen who gains a Title of Nobility without the consent of Congress or take any position from and emperor, king, prince or foreign power is stripped of their citizenship, and is ineligible to hold any office of profit or trust under the United States.
  • Child Labor Amendment. Gives Congress the power to regulate, restrict and prohibit the labor of persons under 18 years of age.

Only two amendments have failed before the States:

  • Equal Rights Amendment – Failed because it was not ratified by the appropriate number of States prior to June 30, 1982 expiration date.
  • DC Voting Rights Amendment. This amendment was intended to give Washington DC better representation and treat it as a State, though it is supposed to be a neutral city. It would also have repealed the Twenty Third Amendment, which allows the citizens of Washington DC to choose electors for the Election of President and Vice President.

There have also been a number of Amendments proposed before Congress that have failed to pass Congress:

  • Balanced Budget Amendment (1991). Outlays are not to exceed revenues except in time of war or national economic emergency
  • Birthright Citizenship Abolition Amendment (2005). No one born in the US is a citizen, unless the mother OR father is a citizen of the US.
  • Blaine Amendment (1875). Mandates free public schools, but sectarian schools would not receive any public funding.
  • Bricker Amendment (1952). These were a series of proposals that would have put restrictions on the scope and ratification of treaties. These were reactions to the events of the two world wars, and attempting to get the United States into non-interventionism/isolationism.
  • Death Penalty Abolition Amendment (1992). An attempt to outlaw the death penalty.
  • Electoral College Abolition Amendment (2005). An attempt to eliminate the so-called Electoral College and have the President and Vice President decided by the popular vote.
  • English Official Language Amendment (2005). Would have made English the official language of the US.
  • Equal Opportunity to Govern Amendment (2003). This would repeal the natural born citizen requirement for the office of President or Vice President, provided the citizen has been a citizen of the US for 20 years,
  • Federal Marriage Amendment (2003). Defines marriage as a union between one man and one woman.
  • Flag Desecration Amendment (1991, 1993 – 2006). Would make it illegal to burn the American flag.
  • Human Life Amendment (1989). Would have made abortion illegal.
  • Income Tax Abolition Amendment (1997). Repeal the Sixteenth Amendment.
  • Line Item Veto Amendment (1991). Would give the President the power to make vetoes in bills by vetoing only parts of the bill and signing the rest into law.
  • Recall of Senators and Representatives Amendment (1992). This would establish the ability of the people to recall Senators or Representatives, subjecting them to a recall vote. Anyone successfully recalled would no longer be eligible to finish their terms.
  • Religious Freedom Restoration Amendment (1999).  Congress nor any State shall establish an official religion, but the people’s rights to pray, recognize their religious beliefs, heritage or traditions on public property shall not be infringed.
  • Representation based on Citizenship Amendment (2005). Representatives shall be apportioned based on the number of citizens only.
  • School Prayer Amendment (2007). Prayer in schools will not be prohibited by Congress or any State, but no one will be forces to participate, either.
  • Victims’ Rights Amendment (2003). Proposed in response to the national feeling that the legal system was more concerned about the rights of the accused rather than the rights of the victims.

More than a few of these amendment proposals are harebrained ideas. Some that have actually made it into the Constitution are ill advised and not well thought out.

The Bill of Rights establishes the rights of the citizen. Nothing in the Constitution, or its amendments should take away or restrict the rights of anyone. Did there really need to be a Constitutional Amendment outlawing alcohol? Wouldn’t a Federal law have sufficed? The Eighteenth Amendment was so poorly thought out that it had to be repealed by the Twenty-First Amendment fourteen years later.

Just like Prohibition, there is no room for a flag burning amendment, as infuriating as that act may be, or an Official language Amendment, or a Federal definition of marriage. The Constitution deals with the powers and restrictions of the Federal and State governments, not the people, a point that the Federal government has forgotten.

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