Chapter 3: The Constitution Section 2: Formally Amending the Constitution Lecture Notes

Key Words:

amendment; formal amendment; Bill of Rights

When the Constitution was written, provisions were made to allow for amendments that would reflect the changing needs of the people. In Section 2, you will learn about the four methods of formal amendment, and will begin to examine the Bill of Rights.

Framers knew of need to build for all time. Constitution provides for its own amendment. (See Art. V, p. 735)

Amendment: A change in, or addition to, a constitution or law.Formal amendment refers to changes or additions that become part of the written Constitution.

1.      Methods of amending the Constitution:
 

a.      First Method -- Amendment is proposed by Congress by a two-thirds vote in both houses, then ratified by three-fourths of the State legislatures (38 of 50)(27 adopted).

b.      Second Method -- Amendment is proposed by Congress by a two-thirds vote in both houses, then ratified by special conventions in three-fourths of the States (38 of 50)(Only repeal of prohibition, i.e., 21st Amendment adopted in this fashion).

c.      Third Method -- Amendment is proposed at a national convention when requested by two-thirds of the State legislatures (34 of 50), then ratified by three-fourths of the State legislatures (38 of 50).

d.      Fourth Method -- Amendment is proposed at a national convention called by Congress when requested by two-thirds of the State legislatures (34 of 50), then ratified by special conventions held in three-fourths of the States (38 of 50).
 

2.       Procedures and Restrictions:
 
a.      Art. V declares that "no State, without its consent, shall be deprived of its equal suffrage in the Senate."

b.      Proposals at national level, ratification is a State-by-State process. The participation of both the Federal Government and state government in the amendment process is evidence of federalism. An amendment may be formally proposed ONLY by Congress or the President.

c.      When Congressional resolution passed, proposal not forwarded to President for signature, as in other enrolled legislation.

d.      Criticism due to no popular vote or conventions, rather legislative action.
 

1)      Hawks v. Smith (1920), U.S. Supreme Court holds that a State cannot require an amendment proposed by Congress to be approved by a vote of the people of the State before it can be ratified by the State legislature.

2)     Kimble v. Swackhammer (1978), State can call for an advisory vote by the people before it acts.
 

e.      Congress can place reasonable time limits on ratification process.

f.       Note as an illustration of how difficult it is to amend the constitution, the fact that a simple majority is not enough to satisfy constitutional requirements in either the proposal stage or the ratification stage of the amendment process.

g.      The most commonly used method of amending the Constitution is for Congress to propose and the State legislatures to ratify.

1.      The first 10 amendments are called the Bill of Rights.
 
Bill of Rights, i.e., the first 10 amendments to the U.S. Constitution, set out the great constitutional guarantees of freedom of expression and belief, of freedom and security of the person, and of fair and equal treatment before the law. [Note that a women's right to vote is not a right guaranteed by the Bill of Rights]
 
2.      The Bill of Rights were proposed by Congress in 1789 and arose from the controversy surrounding the ratification of the Constitution itself.

3.      The Civil War Amendments combined to end slavery (13th, 1986), define American citizenship, proclaim the rights of due process and equal protection of the law (14th, 1868), and outlaw restrictions on the right to vote based on race, color, or previous condition of servitude (15th, 1870).

4.      Other amendments further define the workings of government, empower the government in certain ways, or deal with important social issues.