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Amendment Process

This group assesses the processes for amending the Constitution.

Members: 6
Latest Activity: Apr 14, 2012

Article V processes to amend the Constitution

An amendment must first be PROPOSED and then RATIFIED.
Article V of the Constitution defines these processes:
To PROPOSE Amendments
• Two-thirds of both houses of Congress vote to propose an amendment, OR
• Two-thirds (34) of the state legislatures tell Congress to call a national convention to propose amendments. (This method has never been used.)
To RATIFY Amendments
• Three-fourths (38) of the state legislatures approve it, OR
• Ratifying conventions in three-fourths (38) of the states approve it. This method has been used only once -- to ratify the 21st Amendment -- repealing Prohibition.
The Supreme Court has stated that ratification must be within "some reasonable time after the proposal." In the case of the 18th, 20th, 21st, and 22nd amendments, the period set was 7 years.
(http://usgovinfo.about.com)
Simply stated, if 34 states call for a Constitutional Convention (a "Con Con" as some call it), amendments that it proposes would then have to be ratified by 38 states.
There are concerns that a Con Con might become a runaway convention attempting to correct a “runaway Congress”. These concerns might be overrated, because 75 state legislatures (Nebraska has only one) would have to ratify the proposed amendments. “Any “fringe” amendments could easily be blocked by the inaction of one legislative chamber in 13 states.” (James M. Lemunyon, Virginia House of Delegates, “A Constitutional Convention Can Rein in Washington”, Wall Street Journal, A19, April 1, 2010)
Roman Buhler, Mclean, VA, suggests that legislators in 34 states could call and hold an Article V convention limited to only one amendment, using text agreed to in advance, with enforceable pledges from each state's delegates not to consider any other amendments. (Letters, Wall Street Journal, April 12, 2010)
Below is the exact wording of Article V:
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

Discussion Forum

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Comment by Robert Brown on July 13, 2011 at 10:27pm

Daniel,

Dangerous proposal.  VERY dangerous!

 

Could harmful amendments be passed by such a convention?  Certainly.

Could a convention limited (in advance) to only one topic exceed their mandate & propose other amendments?  History says yes.  (Such as the original convention of 1787)

 

Is the amendment process an adequate safety net to stop dangerous amendments?

 

Consider:

#1. Is it possible that the state legislatures would ratify dangerous and harmful amendments? History says yes. Take, for example, the 14th, 16th, & 17th amendments.

#2. Is it possible that Congress could opt for ratifying conventions (rather than state legislatures), and then stack the deck in favor of delegates who would ratify an amendment that is unpopular? History says yes. The 21st amendment was particularly unpopular in Utah, so Congress bypassed the state legislature, using a ratifying convention, & influenced the selection of delegates to the convention. Utah ratified the 21st amendment through this process.

#3. Is it possible that a constitutional convention could scrap the existing rules for ratification, and create a new ratifying procedure that is far more likely to pass? History says yes. The original convention of 1787 (from which the US Constitution was born) did exactly that.

The 1787 rules for ratification said it had to be passed by congress, then approved by all 13 state legislatures. Article VII of the US Constitution created a new ratification process, bypassing congress & state legislatures, calling for special ratifying conventions (no legislators allowed), and reducing the number of states required, from 13 down to only 9 states.

They changed who ratifies, and how large of a majority would be required. It is certainly possible that a modern convention could do the same.

 

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