Research Paper on "Amending the U.S. Constitution"

Research Paper 4 pages (1504 words) Sources: 4

[EXCERPT] . . . .

United States' Constitution

The steps a the federal level that must be taken through Congress -- combined with the complicated steps that must be taken by the states -- make it very difficult for the U.S. To amend its Constitution. Why did the founders make it so problematic to add to the existing amendments to the Constitution? What amendments have passed so far, and what amendments have failed? These issues and others will be addressed in this paper. Thesis: There are good reasons why the Framers of the Constitution made it quite difficult for the Constitution to be changed in any way. But when an amendment is just and appropriate, such as the ERA, it is embarrassing and shameful that a country built on fairness and justice cannot enact a reasonable amendment.

Amending the U.S. Constitution

Erwin Chemerinsky explains in the Michigan Law Review that the "ultimate measure" of any constitution is how well it finds the right balance between "entrenchment and change" (Chemerinsky, 1998, p. 1). That is, in order for a constitution to remain relevant and to endure, it must have built into it certain mechanisms so society can make necessary adjustments. For example, the author notes that the present day American society is so "vastly different" from the "agrarian slave society of 1787" that it is virtually "unthinkable" that the values and understandings of 220 or so years ago could all be relevant today. Hence, amendments are possible albeit they are extremely rare due to the great amount of elected officials in Congress and the 50 states that must reach accords and sign off on the amendments.

Governing modern society in the twenty-first century requires upgrading and amending certain laws and statutes, but altering the U.S. Constitution was designed to be complicated because the rock bottom structure of the U.S. Constitution was intended entrenched for good reasons. And to actually put an amendment on the U.S. Constitution requires getting the votes of "supermajorities of both houses of Congress and the states" (a supermajority is two-thirds). But specifically why did the founding fathers make it so difficult to change the Constitution?

The founding fathers made it tough to amend because they wished to "immunize the Constitution… from gusts of popular passion that could put bad measures on the… statute books compiled during legislative sessions" (Weisberger, 1995, p. 2). For example, there are thousands of proposed amendments that have failed to gain the needed support because in hindsight they were seen as being created out of those gusts of political passion that Weisberger mentions. The Constitutional amendment against burning the American flag got nowhere; and the amendment that would have renamed the United States of America the "United States of Earth" was a patently absurd idea. In fact, Chemerinsky explains, over 10,000 amendments have been proposed through the mechanisms provided in Article V of the Constitution, but of those just thirty-three got the needed two-thirds votes in the House and Senate and of those thirty-three only twenty-seven were actually ratified by the states.

The precise procedures are as follows: The first and most common method of amending the Constitution is for a bill to be introduced in the U.S. House of Representatives and the U.S. Senate, and to be passed by the House and the Senate by a two-thirds majority in each component of Congress. Next, the legislation passed in Washington D.C. moves on to the 50 states. In each state, the legislation must pass by a two-thirds vote in each state legislature and three-fourths of the 50 states must pass the amendment (again, by a two-thirds vote in each state legislature) (www.usconstitution.net). And if the states have not ratified the proposed amendment within seven years, it dies.

The second method of amending the U.S. Constitution is by calling for a "Constitutional Convention"; two-thirds of the legislatures of the 50 states can call for such a convention. In that convention bills (amendments) can be proposed, and following that these amendments are sent to the states for ratification (must be ratified, approved, by three-fourths of the state legislatures) (Walenta, 2010).

It is also important to note that the U.S. Supreme Court interprets the Constitution and through that process the High Court "…wields more actual power than the Constitution alludes to" (Walenta, 2010). As an example of the power of the High Court has to interpret the Constitution, prior to the High Court taking on the Privacy Cases, it was "perfectly constitutional for a state to forbid married couples from using contraception"; and it was constitutionally permitted for states to "forbid blacks and whites to marry," and more (Walenta, 2010).

One Amendment That Was Successful

One of the amendments that took a great deal of time to pass, but nonetheless was successful in the long run, was Twenty-Seventh Amendment to the Constitution. Chemerinsky explains that the 27th Amendment prohibits pay raises to members of Congress while they are serving in their terms of office. The 27th was proposed by Congress and took nearly 200 years to finally be passed by the states and become law. According to FindLaw.com, the 27th Amendment was proposed to Congress at the same time that the Bill of Rights was being proposed. But it was ratified by only six states and at the time eleven states needed to ratify an amendment to make it part of the Constitution.

In 1873, due to the "idiosyncratic action of the Ohio legislature" Ohio ratified the 27th, but only because the state was in the process of protesting a "controversial pay increase" that had been adopted. But the proposed amendment lay quietly ignored until the 1980s, the FindLaw.com reports. And in the 1980s a Text legislator's aide stumbled upon the original proposal and he began "…a crusade that culminated some ten years later in its proclaimed ratification" (FindLaw.com).

One Amendment That Was Not Successful

The Equal Rights Amendment (ERA) was not successful in becoming an amendment to the Constitution, for a number of reasons. The background behind the ERA -- and the presumed need for it on a national level -- resulted from the blatant chauvinism and gender bias that existed in the country. For example, there are several court cases that set the table for the ERA to be proposed. One of them -- according to the University of Missouri-Kansas City (UMKC) School of Law -- was a ruling by the U.S. Supreme Court in 1873 that upheld an Illinois law that prohibited women from practicing law.

Myra Bradwell at that time was "denied admission to the Illinois bar," so she sued. In its decision -- Bradwell v. State -- written by Justice Bradley, the Court declared that "Man is, or should be, women's protector and defender… The paramount destiny and mission of women is to fulfill the noble and benign offices of wife and mother." (UMKC). But more recently, in 1948, in Goesaert v. Cleary, the High Court upheld a state law that prohibited a woman from becoming a licensed bartender "…unless the tavern owner was her husband or father" (UMKC). Meanwhile in 1972 the ERA got the necessary votes from Congress, and by 1978, 35 of the needed 38 states had ratified the ERA. Congress extended the deadline to June 30, 1982, but the ERA amendment never got the 38 states it needed. But why did it not pass? Kathryn MacKay explains that though national polls showed a majority of Americans in favor, right wing organizations like Phyllis Shafley's STOP ERA, the John Birch Society, and the Mormon Church organized a public relations campaign against it. In that campaign, the conservatives in this anti-ERA movement falsely linked the ERA with "sexual permissiveness, abortion, child care, homosexuality," and more (MacKay, 2007).

Conclusion

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