The Intentional Difficulty of Amending the Constitution
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The Intentional Difficulty of Amending the Constitution

October 10, 2019

♪♪Music♪♪ This lecture is entitled
change is a comin maybe. And what I want to talk with you
about during this lecture is the amendment process to the
Constitution. So there are 27 amendments to
our Constitution and if that number seems small, it’s not
surprising. The amendment process is laid
out in article 5 of the Constitution is a very, very
high bar to pass. ¾ of state legislature need to
approve an amendment that is the product either of Congress or a
national convention. That is an option that we have
that we’ve never utilized. Our 27 amendments have come from
proposals either from states or from Congress. The amendment process then
because it requires ¾ of approval from the states is what
we call a super majoritarian rather than a majoritarian
process and because of this many amendments never see the light
of day. Every congress that goes by
every year sees lots and lots of amendments put forward but they
never pass. Similarly every single congress
that goes by sees many amendments initiated from the
state level for Congressional approval that never ever see the
light of day like with much legislation that never lives or
comes into being amendments very, very rarely indeed only 27
times and if we factor in amendments that repealed other
amendments that came before it the number is even smaller. But never the less there are
some important and really interesting facts about the
amendment process that we should take into consideration. Originally and this is really
interesting considering the fact the amendment process is so
difficult. The founders actually thought
that this process requiring the super majoritarian amount of
vote to pass an amendment it was actually more democratic than we
had seen so far. We have to remember that
America’s first Constitution was the articles of Confederation
and for over a decade that was our governing document but to
amend that document you needed unanimous approval of the
states. So reducing that bar to ¾ from
100% approval was in the mind of the founders, a very democratic
move in a way in their minds to make the amendment process
easier. The other really interesting
thing about amendments is that while there are 27 of them they
weren’t all passed at the same time as you can imagine. In fact, most amendments were
passed in clusters at identifiable periods in American
history. We can learn something from that
as well. What we know of as the Bill of
Rights, the first 10 amendments to the Constitution were
actually two things the very first Congress did. The very first Congress, the
first Congress. One of the two things they did
was set up a court system as Professor Robertson said
yesterday. The other thing they did though
was pass the Bill of Rights or vote on the Bill of Rights and ¾
of the states immediately approved and those became the
fist 10 amendments to the Constitution and not very long
after the Bill of Rights was passed in this identifiable
period of American political history, the 11th and 12th
amendments were passed. The 11th amendment provided that
states, gave states what we call state sovereign immunity so
citizens of one state can not sue another state under many
circumstances and the 12th amendment to the Constitution
came not soon after that which amended the electoral college
process which will be a subject of another IACH podcast very
soon. And we didn’t see any amendments
really from the founders own generation up until the end of
the Civil War when we see a new cluster of amendments. These were what we call the
Civil War reconstruction amendments, the 13th, 14th and
15th amendments. All in reaction to the terrible
turmoil of the Civil War. The 13th amendment of course
makes slavery unconstitutional. The 14th amendment does lots of
things including making people citizens and as we said in
another podcast, it also created new requirements or new
prohibitions. I should say new prohibitions
against states, saying that states cannot deny you
privileges or immunities. States cannot deny you the equal
protection of the law. States cannot take away your
life, liberty or property without due process of the law. We also saw clusters of
amendments during the progressive or populist movement
in the United States dealing with voting and dealing with
actually changing the way we vote for Senators. It was in 1913 that the 17th
amendment was passed provided for direct election of Senators. Up until 1913 in the United
States we did not directly elect our Senators. Our Senators were chosen by our
state legislative bodies and we also saw a cluster of amendments
in the 1960’s dealing with voting especially in reaction to
two significant in the south of the United States. One was racial discrimination in
voting and the other was this increasing divide in the United
States between rural and urban voters so the Constitution was
amended to provide or to make sure that changing demographics
changing notions of racial equality where things that were
protected in the franchise in voting. Another interesting thing about
the amendments, there’s only ne amendment, the 18th, the 18th,
which has been repealed by a subsequent amendment. The 18th amendment outlawed
drinking and the 21st amendment repealed the 18th amendment so
that’s the only amendment that was ever that is an amendment
that is not saying anything positive in a sense not putting
some kind of idea forward or changing some kind of process or
creating a new kind of governmental process. It’s simply there to repeal an
earlier amendment and I would certainly raise a metaphorical
glass to the 21st amendment. But here, that’s a very
interesting amendment and it actually reduces the amount of
substantives amendments to the Constitution to 26 then so
there’s even fewer than 27 amendments in terms of an
amendment that put something some substantive idea forward or
amends a process or creates a new kind of political process. Something else I think we can
see here with prohibition in the 18th amendment and then its
repeal in the 21st amendment and that with the exception of the
18th amendment, which prohibited alcohol, all of the other
amendments for the most part are procedural amendments. They deal with procedural
issues. We’re going to change the way
the electoral college works in the 12th amendment for example
so we don’t make two votes on election days for President and
Vice President we vote for one ticket for example. That’s the procedural amendment,
right? The amendment that says that you
only have to be 18 or those 18 and older can vote. It’s a procedural amendment but
prohibition was a moral amendment and some scholars
including myself argue that’s maybe not the best thing for
amendments. Now we only have in Social
Science what we call an N of one. We only have one case to
evaluate the argument but in the case of an amendment that had a
moral kind of intonation to it. Right? There’s something morally wrong
with the consumption of alcohol, that’s the only one that has
been repealed. So that’s some food for thought
with respect to the amendment process. Another interesting fact about
the amendments, there is one amendment that could never be
passed. There is one amendment, we could
have an amendment that said we all have to wear red shirts, now
that might sound crazy but we could have one but there is
some, there is some, one thing that the Constitution says that
we could not do in amendment and that is to decrease the
representation that each state has in the Senate. Every state is equal in half of
our legislative branch in the Senate. No matter how big California
gets population wise it only gets two Senators, no matter how
small North Dakota gets population wise it will always
have two Senators. So we could in a sense say would
be or can be unconstitutional constitutional amendment and
that would be an amendment that sought to change the equal
representation of states and the Senate. But that wasn’t the only time
that there could have been an unconstitutional constitutional
amendment, the Constitution provides that the slave trade
could not be reduced or put out of business in the United States
until 1808, doesn’t actually use the word slaves, it talks about
the trade or migration of persons but it means slavery and
the Constitution explicitly says that we cannot pass a
constitutional amendment before 1808 that prevented that trade
or stopped it all together. So we have had or you could
imagine there could be could have been two unconstitutional
constitutional amendments, one is mute now not only because the
Constitution said we could pass an amendment after 1808 or
regular legislation and the slave trade which we did but
also because the 13th amendment now prohibits slavery but there
is still one amendment that we could never pass, one
unconstitutional amendment and that would be the reduction of
the amount of Senators or representation at all for states
and the Senate. So other than these interesting
factoids, which I hope, are more interesting than, than kind of
navel, navel-gazing about the Constitution. What can we learn about the
amendment process? What like so many other clauses
in the Constitution almost every one of them but especially the
ones that seem more arcane and difficult to understand, there
are still important lessons that we can garner from the amendment
process just like there are important lessons we can garner
from other seemingly difficult amendments. As I’ve talked about before in
other lectures but I’ll explain again now the Constitution was
understood by the framers as a higher law. The kind of rules of the game
that structure the political world where ordinary politics
happens, so we have ordinary politics everyday that is
dictated to and controlled by this higher law. Ordinary legislation, ordinary
executive decisions, ordinary judicial decisions ordinary
agency decisions throughout government on both the national
and state level are happening everyday but sometimes we have
to ask whether they run afoul of some kind of rule. The Constitution is that, it’s
the higher law, it is the rules of the game. Now if we understand that to be
the case and because of the rules of the game trump any kind
of ordinary legislation, if that ordinary legislation or
executive action runs afoul of the rules of the game, that is,
we have to understand that’s it’s a very important notion
almost a sacred kind of law that shouldn’t be easily changed and
despite the fact that the framers thought that by changing
the amendment process from the articles of Confederation from a
100% unanimous gratification to 75% or 3/4 . They still and Madison says this
many times thought the amendment process was an awesome process,
in other words it was such an important process that it
shouldn’t be easy. Ordinary legislation is easy
relative to the amendment process, ordinary legislation
simply is a majority vote, okay? 50.1% that’s sometimes easy and
more often than not easy to get but changing the higher law,
changing the rules of the game should be something that does
have a high bar to it after all it is a higher law. Thank you. (Applause) (Music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit (Music)

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