The American federal constitution is one of the oldest consolidated constitutional documents in the world, coming into force in 1789 after being ratified by the thirteen original states. A constitution must be balanced in such a particular way that it holds societies core values, usually regarding the governance of the state and the rights of individuals and is broad enough to stand the test of time. States ratify constitutions to ensure the core values of society are protected however, most constitutions including the U.S. constitution recognizes that on occasion changes to the constitution may be necessary, so mechanisms to amend the constitution are included in the constitution. It can be argued that a provision for amending the constitution is the most important provision a constitution has as it allows constitutions to be flexible and change as society changes. If a constitution is too easy to amend then the problem of too many amendments made by the majority will cause the constitution to lose its’ value and almost certainly will not incorporate values held by the minorities in society. Only twenty-seven amendments have been made to the U.S. Constitution since it was ratified over two centuries ago, this is a relatively low number considering how the U.S. has expanded its’ social make-up, embraced technology, broadened its’ moral attitude and evolved during this period of time. The questions must therefore be asked, why is it so difficult to amend the U.S. constitution? Or was the constitution so well written and constructed that it requires very little amendments to be made to it? The huge change that America has witnessed since 1789 suggests it is the difficulties associated with amending the constitution is the problem rather than the lack of need for amendments. This essay will attempt to answer this question that tends not to draw much media or even academic attention, as much of the literature on amending the U.S. Constitution is over 50 years old. According to Grinnell, the people of America hold the Constitution in the highest respect but have no idea what it contains or the role it plays in each of their lives. Compared with Ireland where the people have a much greater understanding of their constitution and what it contains as amendments by popular referendum frequently occur, the latest occurring as recently as November 2012. This essay will discuss a brief history of the American federal Constitution, how the Constitution can be amended, examples of these amendments, proposals that failed to pass the amendment process, the role the Supreme Court plays in relation to interpreting the Constitution. Currently there are no official guidelines that express when an amendment should be made to the Constitution, this in itself is a difficulty in amending the Constitution, as it is unclear when and in what situation amendments should be made to the Constitution.
Brief outline of the American federal Constitution
The Constitution of the U.S. is a relatively sort document that is not easily amended in accordance with the wishes of the framers who believed the amendment process would be abused if the Constitution was to easy to amend. The framers of the Constitution failed to explicitly write how the Constitution should be interpreted placing a great deal of trust in the government and judiciary to uphold the values of the Constitution. On the other hand the framers of the Constitution could have been accused of having a distrust of future generations who would govern the state. The separation of powers and the system of checks and balances is incorporated into the Constitution, this is evidence that the framers assumed that the power of the government and the judiciary would be abused and hence felt the need for the partial separation of powers, federalism and the bill of rights were necessary. The system of checks and balances allows each branch of power is given restricted power allowing it to keep a check on the others by limiting the others actions resulting in a constant balance of power. The separation of powers is made up of three branches, the legislative, the executive and the judiciary. No person can hold a position is more than one of these branches; this further strengthens the system of separation of powers. For example the Supreme Court has the power to strike down laws if they are deemed unconstitutional, the president, who is a member of the executive branch, has the power to nominate judges to the Supreme Court and the Senate, which forms the legislative branch, must approve the nominations made by the president. The number of articles in the original constitution prior to any amendments is seven; Article V of the Constitution provides the mechanism for amending the Constitution. The history of the Constitution spans over two centuries yet very few significant changes have been made to the Constitution during this time due to the difficulty of the amendment procedure.
Process of amending the federal Constitution – Two Methods
Both methods of amending the Constitution have the same proposal methods – ‘a two-thirds vote of both houses [the Senate and the House of Representatives], or a convention called by Congress upon the request of the legislatures of two-thirds the States’. The first method of amending the Constitution is if a proposal is then ratified by the legislatures of three-fourths of the States. The second method of amending the Constitution is if conventions in three-fourths of the States approve a proposal. Both methods take a considerable length of time sometimes years. The legislature is the legislating body in each state. Tanger claims that the methods to amend the Constitution are so difficult that it is only possible to make amendments during ‘times of great crisis’. The state of Massachusetts held an advisory vote on the ‘Child Labour’ proposed amendment, the people of the state voted on whether they would like the proposal to be incorporated into the Constitution or if they would rather it wasn’t ratified by the legislature. The vote, although having no official relevance to the ratification process and was not legally binding reveals the publics stance on the proposal to the legislature before they cast their vote on the proposal. The procedure for passing amendments on the face of it seems rather straight forward and easy however, the difficulty in passing amendments is obvious from the fact that so few have been ratified from the countless proposals that have been made.
Examples of amendments made to the Constitution
Before the constitution was ratified promises had to be made by its’ framers to amend the Constitution to ensure its’ ratification by each of the 13 original states. Patrick Henry Madison one of the men responsible for drafting the federal Constitution only won his seat to the first Congress only after he promised to amend the Constitution and add the bill of rights to it. Barnett argues that the because the bill of rights containing the first ten amendments to the Constitution was incorporated in the Constitution so soon after it came into force that the bill of rights should be considered as part of the original constitution and not an amendment. If this argument is to be upheld then only seventeen amendments have been made to the U.S. Constitution in two centuries. Another amendment made to the Constitution, which if proposed today would cause uproar, protected the practice of slavery just before the outbreak of the Civil War in 1861. The amendment was made in the hope that civil war would be avoided. The seventeenth amendment can be seen as giving more power to the people as the election of members to the Senate was taken from state legislatures and given to the people of the U.S. Not all amendments have desirable outcomes the Eighteenth amendment prohibiting alcohol resulted in a major failure and the necessity to pass the Twenty-first amendment which repealed it a mere thirteen years later. As the Constitution is so difficult to amend, the amendments that have successfully been ratified received approval from such a large number of people in the legislatures of the states or in constitutional conventions in a majority of the states resulted in very few amendments being undesirable, as Chemerinsky only references one amendment that ended up being undesirable as mentioned above.
Examples of proposals that did not become amendments
The limiting factor of the amendment process can clearly be seen when the number of proposals which is more than 10,000, this can be compared with the number of proposals that secured approval from both the House and the Senate which is just thirty-three and finally both these numbers can be compared with the number of amendments actually made to the Constitution which is twenty-seven. The difficult process of amendment means that the proposal made by James Madison to limit each member of the House of Representatives to representing a district no larger than 50,000 residents. This proposal would have been unworkable today as U.S. has a population of just over 310 million. Another important proposal that failed in 1861 was a proposal by Congress to institutionalize slavery. These failed proposals are critical examples of how important the majoritarian process of amendment is in the ratification of some proposals.
On the other hand an example of a proposal that unarguably should have been an amendment to the Constitution but failed due to the majoritarian process is the first equal rights proposal which simply declared men and women as equals throughout the U.S. During the first century following the enactment of the Constitution only three proposals were made to alter the amendment process of the Constitution however, during the periods of the 61st to the 63rd Congresses sixteen proposals were made to change the method of amending the Constitution. This highlights growing dissatisfaction with the amendment process of the Constitution. These examples show benefits and restrictions of the amendment process.
The US Supreme Courts’ role in interpreting the Constitution since its’ ratification
As the Constitution is such a short document, that could easily have been much longer with much more precise language used to provide guidance to the legislature, many feel it is open to interpretation to suit the principles society values to be important at the time. Allowing the Constitution to evolve by judicial interpretation is a much easier method than going through the difficult process of amending it. If the Constitution was constantly being amended it would lose its’ symbolic position in society and would been seen as an insignificant instrument of legislation. Judicial interpretation causes substantial debate as it is used much more frequently than the amendment process. Barnett is of the opinion that the Supreme Court has ‘sat as a continuous constitutional convention’ Chemerinsky is of the view that if the Constitution was only to be altered by way of amendment, because the process is so difficult, that is to say that the Constitution is not to be reformed. A contrasting view to Chemerinsky is the constitution should be reformed however, the Supreme Court should ensure the procedure for amending the constitution is followed correctly as it is such a difficult process and it should have the final say on whether the amendment can be enacted in accordance with the law. There can be no doubt that the Supreme Court plays a much greater role in the day to day evolution of the Constitution and has much more responsibility in ensuring the Constitution remains relevant to the people’s lives than the amending of the Constitution.
Both process involved in amending the Constitution involve a majoritarian process, on the face of it this might seem like a desirable factor, however when scrutinized this results in minorities not having their say in the amending of the Constitution. In contrast when the evolution of the Constitution is largely left in the hands of the judiciary then the voice of minorities can be heard and considered. Another issue that must be considered if the Constitution is to evolve solely by amendment is the energies, time and resources that are necessary to allow this to occur are too great. The proper use of amending the Constitution can be used to keep a check on the Supreme Court and ensure it is following the correct spirit of the Constitution. The amending mechanisms contained in Article V are arguably the most important piece of legislation in the Constitution as it allows the Constitution to change with society while keeping it core values at the same time. One obvious benefit of the amendment process being difficult is no hastily amendments, that may be considered a quick-fix to whatever issue is of importance at a specific time but may not be to the benefit of generations to come and a considerable amount of time can be spent examining and scrutinizing each proposal. The advisory vote held in Massachusetts seems like a good idea as it gets the public involved in the amendment process and initiates media coverage of the vote while also advocating the peoples view on the proposal in question and assisting the legislature on how it should vote. However the questions must be asked is the difficult amendment process a benefit or hindrance to the Constitution and to the American people and/or should the ratio of legislature and conventions be lowered in the hope of easing the amendment procedure and allowing more proposals to be ratified?