|The American Driver
From Drivers...For Drivers
Drafted by Thomas Jefferson between June 11 and June 28, 1776, the Declaration of Independence is at once the nation's
most cherished symbol of liberty and Jefferson's most enduring monument. Here, in exalted and unforgettable phrases,
Jefferson expressed the convictions in the minds and hearts of the American people. The political philosophy of the
Declaration was not new; its ideals of individual liberty had already been expressed by John Locke and the Continental
philosophers. What Jefferson did was to summarize this philosophy in "self-evident truths" and set forth a list of
grievances against the King in order to justify before the world the breaking of ties between the colonies and the mother
The Federal Convention convened in the State House (Independence Hall) in Philadelphia on May 14, 1787, to revise the
Articles of Confederation. Because the delegations from only two states were at first present, the members adjourned
from day to day until a quorum of seven states was obtained on May 25. Through discussion and debate it became clear
by mid-June that, rather than amend the existing Articles, the Convention would draft an entirely new frame of
government. All through the summer, in closed sessions, the delegates debated, and redrafted the articles of the new
Constitution. Among the chief points at issue were how much power to allow the central government, how many
representatives in Congress to allow each state, and how these representatives should be elected--directly by the people
or by the state legislators. The work of many minds, the Constitution stands as a model of cooperative statesmanship and
the art of compromise.
The Amendment Process
There are essentially two ways spelled out in the Constitution for how to propose an amendment. One has never been
The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has
passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long
outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to
be approved as an amendment (for example, see the 21st and 22nd).
The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the
States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to
be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion
in political science circles about just how such a convention would be convened, and what kind of changes it would bring
Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths
of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by
the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a
convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a
convention. In any case, passage by the legislature or convention is by simple majority.
The Constitution, then, spells out four paths for an amendment:
=> Proposal by convention of states, ratification by state conventions (never used)
=> Proposal by convention of states, ratification by state legislatures (never used)
=> Proposal by Congress, ratification by state conventions (used once)
=> Proposal by Congress, ratification by state legislatures (used all other times)
It is interesting to note that at no point does the President have a role in the formal amendment process (though he
would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear
in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 US 378 ):
The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or
adoption, of amendments to the Constitution.
Another way the Constitution's meaning is changed is often referred to as "informal amendment." This phrase is a
misnomer, because there is no way to informally amend the Constitution, only the formal way. However, the meaning of
the Constitution, or the interpretation, can change over time.
There are two main ways that the interpretation of the Constitution changes, and hence its meaning. The first is simply
that circumstances can change. One prime example is the extension of the vote. In the times of the Constitutional
Convention, the vote was often granted only to monied land holders. Over time, this changed and the vote was extended
to more and more groups. Finally, the vote was extended to all males, then all persons 21 and older, and then to all
persons 18 and older. The informal status quo became law, a part of the Constitution, because that was the direction the
culture was headed. Another example is the political process that has evolved in the United States: political parties, and
their trappings (such as primaries and conventions) are not mentioned or contemplated in the Constitution, but they are
fundamental to our political system.
The second major way the meaning of the Constitution changes is through the judiciary. As the ultimate arbiter of how
the Constitution is interpreted, the judiciary wields more actual power than the Constitution alludes to. For example,
before the Privacy Cases, it was perfectly constitutional for a state to forbid married couples from using contraception;
for a state to forbid blacks and whites to marry; to abolish abortion. Because of judicial changes in the interpretation of
the Constitution, the nation's outlook on these issues changed.
In neither of these cases was the Constitution changed. Rather, the way we looked at the Constitution changed, and
these changes had a far-reaching effect. These changes in meaning are significant because they can happen by a simple
judge's ruling and they are not a part of the Constitution and so they can be changed later.
One other way of amendment is also not mentioned in the Constitution, and, because it has never been used, is lost on
many students of the Constitution. Framer James Wilson, however, endorsed popular amendment, and the topic is
examined at some length in Akhil Reed Amar's book, The Constitution: A Biography.
The notion of popular amendment comes from the conceptual framework of the Constitution. Its power derives from the
people; it was adopted by the people; it functions at the behest of and for the benefit of the people. Given all this, if the
people, as a whole, somehow demanded a change to the Constitution, should not the people be allowed to make such a
change? As Wilson noted in 1787, "... the people may change the constitutions whenever and however they please. This
is a right of which no positive institution can ever deprive them."
It makes sense - if the people demand a change, it should be made. The change may not be the will of the Congress, nor
of the states, so the two enumerated methods of amendment might not be practical, for they rely on these institutions.
The real issue is not in the conceptual. It is a reality that if the people do not support the Constitution in its present
form, it cannot survive. The real issue is in the practical. Since there is no process specified, what would the process be?
There are no national elections today - even elections for the presidency are local. There is no precedent for a national
referendum. It is easy to say that the Constitution can be changed by the people in any way the people wish. Actually
making the change is another story altogether.
Suffice it to say, for now, that the notion of popular amendment makes perfect sense in the constitutional framework,
even though the details of affecting popular amendment could be impossible to resolve.