A fundamental dispute prevalent in Constitutional theory is between those who see the Constitution as a “living and to be interpreted in light of the times” and those who see the Constitution in a more stable light, as a fundamental document of democracy which is to be interpreted in light of the original intention of the framers. [1] The one group is dominated by an evolutionary, progressive notion of history, the other by a respect for tradition and the past. As will become evident as time goes on, both views contain both truth and challenges, and the dispute cannot be resolved within the framework of the world views that produced the theories.
This blog argues that the framers did believe in a living constitution, but its living nature was not dependent upon the courts, but the people, the states, and their leaders into whose hands the process of amendment was deposited by the terms of Article V. The living nature of the Constitution was to be guaranteed by the wisdom of the people and the states. In addition, the organic nature of the union sought by the founders is evident in the process that was created for amending the Constitution.
Process of Amendment
As often mentioned, the founders were practical people trying to make practical adjustments in the form of government established under the Articles of Confederation. Their goal was to create a “more perfect union.” They were not deluded enough, as modern people so often are, to believe that they could create a perfect society, just a better form of government that could meet the challenges of their day. Because the understood that the document might need change, they provided a means by which future generations could amend the Constitution.
According to Article V, both states and Congress may initiate the amendment process. Amendments may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by resolutions to call such a convention adopted by two-thirds of the State legislatures. No existing amendment to the Constitution resulted from a constitutional convention, though proposals have been made for such a convention. [2]
In the case of a nationally proposed amendment, Congress proposes an amendment in the form of a joint resolution passed by a two-thirds majority of both houses. Interestingly, the President has no role in the amendment process, perhaps because it was felt that this was an area in which Congress and the States should work without interference from the executive. In a government of the people formed by their state governments, it was thought that the executive should not interfere with the prerogatives of the elected representatives of the people.
In any case, the amendment process contains its own checks and balances because of the process of recommendation and ratification. By whatever means an amendment is proposed, it is made part of the Constitution when ratified by the legislatures of a super-majority of the states. A simple majority cannot amend the Constitution. It requires two thirds of the legislatures and/or Congress to propose amendments and a vote of three-fourths (75%) of the states to adopt amendments. This process is a significant barrier to unwise changes in the constitutional structure of the nation.
Administration of Amendment Process
Subsequent to Congress proposing an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 USC 106b. [3] The original document is forwarded directly to NARA’s Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes. The OFR also assembles an information package for the States which includes formal “red-line” copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.
The Archivist then submits the proposed amendment to the States for consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their respective legislatures or the state calls a convention, depending on what Congress has specified in its adopting resolution. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. Each state then notifies the Archivist of its action on the proposed amendment, and when and if the required number of states have adopted the amendment, official notice is given to the Congress that the amendment process has been completed. [4]
The Intent of the Founders
Madison’s notes recording the actions and debates of the Convention of 1787 reflect the views, especially of Hamilton, that the method of amendment under the terms of the Articles of Confederation were manifestly inadequate. [5]Under the Articles of Confederation, it required a unanimous agreement of the states to amend its terms, giving any state a veto over change. The Articles of Confederation were simply unable to adapt or confront the various differences among the states and the need for a stronger national government. In response to this experience, the founders realized there needed to be a means to amend the Constitution to remedy “probable defects” in the document. [6] It is almost certain that Hamilton and others intended to include provisions regarding slavery in the category of defects to be remedied at a later date.
In view of the experience with the Articles of Confederation, why was it necessary to have an amendment process that, quite obviously, would take much time to conclude, especially as more states were added to the union? The answer is to be found in the nature of the government the founders were instituting. The Constitution was to be founded on the consent and ratification of the people of the United States. This ratification was to be accomplished by the people through delegates elected by them in each state. The very ratification of the Constitution was done on a federal basis, and the union to be formed was a federal union founded on the consent of the people. [7] The amendment process enshrines the federal, republican nature of the Constitution in an amendment process over which the people and the states have ultimate authority.
The goal of the founders was to strike a balance between a constitution that could not be amended, freezing the nation in a form that could never change, and a constitution that was too easily amended, and which was therefore unstable and subject to constant change. Thus, Madison, in defending the Constitution observes as follows:
That useful alterations will be suggested by experience could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. [8]
The humility and wisdom of the founders, and the practical wisdom with which they accomplished the task of recommending the Constitution to the nation are nowhere more evident than in this quotation. They were aware that they were not omniscient and that defects would be found in the document. They were aware that changing circumstances would require adjustments. What they intended was a system of change that would protect the freedom of the people and the sovereign rights of the states in the “more perfect union” which they were attempting to create.
Conclusion
For most of the 20th Century, the greatest changes to the Constitution were not established by the people, but by the unelected courts of the nation, as both congress and the states abrogated their responsibility to create consensus on fundamental changes. The result has been a loss of faith in the Constitution and social conflict. It is not a strength of our system of government but a weakness that those who were originally given the power of amendment have found it more convenient to allow the courts to undertake what the people and their representatives should do. In the long, slow process of convincing the people of the need for a change is the opportunity for the development of collective wisdom in a way that nine Supreme Court justices can never achieve.
Copyright 2021, G. Christopher Scruggs, All Rights Reserved
[1] The actual dispute is more complex for many in both camps see the wisdom and necessity in the views of the other. I hope to deal with this precise dispute as seen from an organic view of nature in a later blog.
[2] In recent years, however, there have been calls for a convention of the states, generally by conservatives concerned about federal spending and related matters. For the views of those who would call such a convention, see https://conventionofstates.com/ (downloaded August 5, 2021).
[3] This analysis is from the Federal Register and can be found at https://www.archives.gov/federal-register/constitution (downloaded August 5, 2021).
[4] Id.
[5] Id. Because the institution of slavery was tacitly acknowledged by the convention, many contemporary people have thought that the entire document is tainted. The only adequate response to this is to note that the government could never have been formed unless the issue of slavery were deferred to a later time. Washington, Madison, Hamilton, and many others at the Convention were of the view that the institution of slavery was inconsistent with a free, republican government. The issue came up with respect to the amendment process for the slave states would not agree to the Constitution if it could be amended to eliminate slavery. A compromise was reached that provided that no amendment to the provisions impacting slavery could be made prior to 1808.
[6] See, James Madison, “Notes of the Constitutional Convention” (September 10, 1787). https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-9-10/ (downloaded August 5, 2021). It is revealing to see that Hamilton was under no illusions as to the ability of the founders to create a perfect system of government. He expected changes and a means was needed to provide for them.
[7] The Federalist Papers Clinton Rossiter ed. (New York, NY: Mentor Books, 1961) No. 39 (Madison), found at 243. All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.”
[8] Federalist Papers, 43 (Madison), at 278.