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Amending the Constitution - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Amending the Constitution

“We must all obey the great law of change,” declared Edmund Burke. “It is the most powerful law of nature, and the means perhaps of its conservation. All we can do, and that human wisdom can do, is to provide that the change shall proceed by insensible degrees.” Like Burke, the Framers of the Constitution understood that not all change is reform. A constitution cannot long endure if it may be amended too easily or too swiftly. Nor can it be expected to survive if it cannot be changed at all; for a constitution cannot be preserved if it cannot be altered to correct errors in the document or meet the needs of society. The Articles of Confederation were probably doomed from the start because they required the unanimous consent of the States before any change could be made.

The procedures to be followed for amending the Constitution, as we noted in our discussion of federalism, are laid out in Article V. The Framers believed that the method adopted was a vast improvement over that prescribed by the Articles because it achieved a balance between permanency and change and thus assured the continuity of the Constitution. “The mode preferred by the convention,” observed Publius in Federalist No. 43, “seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” Another virtue of the method selected, he added, is that it “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by experience on one side, or on the other.”

Both Congress and the States may initiate amendments, but only the States may ratify them. An amendment can be proposed by a two-thirds vote of both houses of Congress or by a national convention called by Congress at the request of the legislatures of two-thirds of the States. Once an amendment has been proposed, it must be ratified by the legislatures of three-fourths of the States or by a special convention of three-fourths of the States. Congress decides which method of ratification is to be followed and may specify the length of time in which the amendment must be ratified. Except for the Twenty-First Amendment, which repealed the Eighteenth, every amendment added to the Constitution has been ratified by the State legislatures. Now that there are fifty States in the Union, no amendment can take effect unless thirty-eight States approve it. The President, it should be emphasized, plays no role in the amendment process. He may not propose amendments, and those that Congress proposes are not submitted to the President for signature. This has not prevented certain Presidents, however, from persuading a member of Congress to introduce an amendment that reflects the President’s wishes. In 1865, the proposed Thirteenth Amendment outlawing slavery was mistakenly submitted to President Lincoln and inadvertently signed by him.

The amendment process, as briefly outlined here, seems rather simple and straightforward. Upon closer inspection, however, we observe that it embraces a democratic theory of government and reaffirms basic principles of the American constitutional system.

First, it may be seen that the method of amendment reflects a certain philosophy of change. By requiring extraordinary rather than simple majorities, it prefers evolutionary to revolutionary change and establishes a cumbersome system that is intended to make the amendment process slow and difficult. The purpose is not to prevent change but to encourage careful deliberation, and to discourage hasty, ill-conceived, and sweeping alterations of the fundamental law by weak, impassioned, and transient majorities. In other words, it seeks to minimize the risks and uncertainties of change. Moreover, it guards against wholesale constitutional reform at breakneck speed that might so convulse the society as to produce turbulent disorder and revolutionary upheaval.

Second, the amendment process protects the States against each other and poses a barrier to sectional privilege and discrimination that might threaten the Union. Although some Anti-Federalists were critical of the extraordinary majority requirement on the ground that it was “undemocratic,” the Framers understood that the two-thirds and three-fourths rules were necessary to prevent a simple majority of the States, with possibly only a minority of the population, from “ganging up” on a minority of the States, with possibly a majority of the population. The arrangement agreed upon offers some assurance that public support for change will be strong and deliberate, and that it will be based on a national rather than a regional consensus. In these respects, the method of amendment is analogous to the Electoral College system, which encourages presidential candidates to campaign nationally and construct a national consensus in the race for the presidency.

Third, the method for amending the Constitution acknowledges the sovereignty of the States and strengthens the principle of federalism. If there is to be a formal change of the system, the States play a commanding role. In fact, they have the last word and in this respect exercise sovereignty over the nation. If Congress chooses not to propose an amendment, the States may even initiate an amendment of their own by the convention method, ratify it on their own authority, and circumvent the Congress.

Every amendment that has been added thus far, however, was proposed by Congress, and the States have never taken advantage of the convention option. The Constitution asserts that, in the event the States call for a convention, Congress “shall” comply. But as a practical matter there is no way to force Congress to act, and it would seem in this instance—as in many others—that the Framers relied upon the good faith of Congress for the observance of this requirement. If Congress were to call a convention, it would be appropriate for Congress to enact legislation providing for the organization and procedure of a convention—a step the Congress has yet to take.

Because the Constitution sets forth no rules or standards for the conduct of such a convention, there is some uncertainty about its possible composition and scope of authority. Some observers wary of the convention method have argued that it is a risky alternative because such a convention, once called, might become a “runaway” assembly bent upon rewriting the entire Constitution. Others contend, however, that this is a phantom danger because Congress would insist upon instructing the delegates to limit their consideration to a single amendment proposal and would be free to reject other amendments that might arise from the convention. In other words, the chance of a “runaway” convention is slim or nonexistent, according to this view, because it could not succeed unless the Congress was equally supportive of a wholesale revision of the Constitution. This is highly unlikely, it is further argued, given the deep and abiding affection for the Constitution among the American people.

These matters aside, the convention method has also been advocated on the ground that it is an effective political tool of the States for pressuring Congress into proposing amendments, the assumption being that, once the requisite number of States had called for a convention, Congress would be inclined to step in to take control of the process. By proposing the amendment itself, Congress would thereby eliminate the need for a convention, and the question of a “runaway” convention would be moot. All of this is speculative, however, and the course of action that might be taken in the event a convention is called cannot be known with certainty until it happens.

Fourth, the method of amendment in Article V recognizes and confirms the republican principle upon which the Constitution is based. Although the States, in their sovereign capacity, make the final decision on whether to ratify or reject an amendment, they act not alone but through representatives of the people. It is, then, the people in the several States, speaking through their elected representatives (or their convention delegates), who possess the ultimate authority to amend the Constitution.