Legalese — Amending the Constitution

Friday, September 17, 2021 was Constitution Day this year, as is every September 17th of every year.  September 17th is Constitution Day because that is the day that it was signed by the constitutional delegates. 

As brilliant as the drafters were, they knew they weren’t perfect.  They were, after all humans.  They stated in the preamble that their goal was to form a “more perfect union” and they put in the document a method for amending it.  They couldn’t imagine smart phones and, frankly, a life without slavery, but they were smart enough to know that life in the future might contain things they couldn’t have imagined and the document needed to be flexible.

Article Five of the Constitution tells us how to do that.  The process is deliberately difficult, because we don’t want to amend the Constitution on a whim or for political reasons.  It should only be done after careful deliberation and slow thought.  First, both the House of Representatives AND the Senate have to approve the amendment by a 2/3 vote.  Then, ¾ of the states have to ratify the amendment.  In the 234 years since the Constitution itself was ratified, this has only happened 27 times. 25, if you figure that the amendment that created prohibition and the amendment repealing prohibition cancel each other out.

The last time it happened was in 1992.  To illustrate how slow and deliberate that process is, the 27th Amendment, ratified in 1992, was actually first proposed in 1789 by James Madison along with the original 10 Amendments in the Bill of Rights. It said, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”  In other words, if Congress votes itself a raise, that’s fine, but the raise doesn’t take effect until after the next House of Representatives election. It passed the congressional requirements at the time, but it didn’t get ¾ of the states.

In the 1980s, a student at the University of Texas found this bit of history and discovered that, on procedural grounds, the Amendment was still ‘live’, meaning, that the states could still vote to ratify it.  He wrote a paper on this, and got a “C”.  Undeterred, he started a letter-writing campaign to state legislatures and, since this is a short column, let’s just say one thing led to another and soon enough the Amendment was ratified.  Long after graduation, his grade was changed to an “A”. 

We the People, indeed.

I love this story, because it is so quintessentially American.  This student wasn’t especially rich or connected. He wasn’t even recognized for his scholarship by his professors.  He was just a regular guy who saw a way to shape the way our country works for the better and ¾ of the states agreed with him.  When’s the last time ¾ of the states agreed on anything? 

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

Be the first to comment

Leave a Reply