AMENDING THE CONSTITUTION

By Steven W. Rakow, Esquire

The Founding Fathers drafted our Constitution in 1787, which became the supreme law of the United States in 1789. At that time, there were no amendments to the Constitution as the members of the Constitutional Convention could barely agree on the text of the Constitution alone, much less on a proposed Bill of Rights. In 1789, following the framework of Article V of the Constitution, James Madison proposed certain constitutional amendments to Congress. These proposals would become the first ten amendments, or Bill of Rights, providing for individual rights to offset the power of the federal government. The proposed amendments were approved by Congress and submitted to the states for ratification, becoming law in 1791.

The process to amend the Constitution is straightforward. Article V reads:

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.

In short, there are two mechanisms to amend the Constitution. The first requires two-thirds of both houses of Congress agreeing to propose an amendment that must then be ratified by three-fourths of the states. Since 1791, only 27 of 11,327 proposed amendments have ever been made in this fashion. In today’s politically charged environment, it is highly unlikely that Congress could ever agree on another amendment. Rather than amendments originating in Congress, the second mechanism requires two-thirds of the states (34 out of 50) to call for a Constitutional Convention to propose amendments. Any proposed amendments coming out of a Constitutional Convention would then have to be ratified by three fourths (38 of 50) of either the state legislatures or state conventions depending upon how Congress chooses the ratification process. There has only been one Constitutional Convention – the first – despite attempts by states to seek a convention.

While many may believe that it should be easier to amend the Constitution, the Founding Fathers likely wanted to set the bar high to prevent whimsical changes to the governing document. Anyone familiar with governing documents of states, corporations, and even homeowner or condo associations understands how difficult it can be to get people to agree on amendments. Despite the difficulty, the twenty-seven amendments thus far demonstrate that important rights should be set forth clearly in the governing document itself or in an amendment.

There are two issues on the forefront of American politics right now that threaten to further polarize the nation absent clear-cut rights: one is the right to bear arms as guaranteed by the Second Amendment and the other is immigration, which has been delegated to Congress through Article 1, Section 8. Laws infringing on one’s right to bear arms conflict with the Second Amendment, which was awkwardly worded and left open for broad interpretation. Gun control is much too important a matter to be left up to haphazard legislation by Congress or the states, much less left up to the legislative activism of the courts. Immigration laws are ineffective, not followed, and clearly beyond the power of Congress to solve.

Certainly, there are many more issues that could come before a Constitutional Convention than those hot button items noted above. Some of these include previously failed amendments involving equal rights, a balanced budget, abolition or restructuring of the Electoral College, and the line item veto. Whether one agrees or disagrees with some of the potential issues mentioned for consideration in a Constitutional Convention is not the point; rather, as citizens, Americans must understand that there is a process for amending the Constitution outside of Congress in a way that would require civil discourse, public debate, and agreement by three quarters of the citizenry to accomplish. Perhaps it’s time.

Steven W. Rakow, Esquire, a former assistant state’s attorney and retired Marine officer, practices civil litigation, construction law, criminal law, and general practice matters. He can be reached at 410-600-3075, by email at [email protected], or through his website www.steverakowlaw.com.