Amending the Constitution
Join hosts Nick Capodice, Hannah McCarthy, and special guest Robinson Woodward-Burns on the "Civics 101" podcast for a deep dive into the layered process of amending the U.S. Constitution. The episode offers a meticulous breakdown of the procedures that govern constitutional amendments, as described by Article 5. Discover why the framers made it a momentous task requiring broad consensus, and the implications this has had on historical attempts to evolve the nation's foundational document—from the proposed and ratified to the notorious efforts like the Equal Rights Amendment.
"Civics 101" goes beyond the surface of the amendment process to explore the intriguing political dynamics within Congress, where members propose amendments with full knowledge of their slim passage prospects. The conversation sheds light on the strategic value of amendment proposals for lawmakers, serving as a tool to signify political positions and maintain a presence in the public eye. Despite the low odds of success, the episode dissects how this political theater continues to play a vital role in shaping the legislative agenda and influencing the discourse surrounding our Constitution's potential evolution.
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1-Page Summary
The process of amending the U.S. Constitution
The process of amending the U.S. Constitution is framed as an intentionally challenging pathway that requires high levels of consent both federally and at the state level. Article 5 sets a two-stage process: a proposal stage which necessitates two-thirds agreement in both houses of Congress or a national convention, followed by a ratification stage demanding approval from three-quarters of state legislatures or state conventions. This structure showcases the framers' intention for a rigorous amendment process, deliberately designed to be difficult to prevent easy alterations to the Constitution.
Amendments are notably challenging to endorse, as the Constitution establishes a high standard for any changes. This difficulty is evident in the ratio of proposed amendments to those ratified; of nearly 12,000 attempts, only 27 have passed. The failed history of the Equal Rights Amendment, introduced in 1923 and gaining momentum in the 1970s, highlights this challenge. Despite recent advancements and ratifications from previously uncommitted states, political and legal barriers remain, stalling the ERA's incorporation into the Constitution.
Reasons Congress proposes amendments that likely won't pass
Congress members often partake in the amendment proposal process, aware of the small chances of these amendments passing. This practice is a strategic political maneuver, allowing legislators to signal their stances on critical issues and remain engaged in the public sphere.
Positioning taking is the act of proposing amendments to demonstrate a clear stance on policy to constituents, despite the recognition that these amendments will likely fail. This strategy benefits Congress members by projecting commitment and attentiveness to significant matters, securing their relevance within the political landscape with minimal risk involved.
Due to the rare successful passage of amendments, the stakes are low when proposing such changes. The exceedingly small likelihood of amendment ratification, as evidenced by the protracted ratification of the most recent amendment after more than two centuries, indicates a broad absence of expectation for these proposals to morph into law. Yet, this does not deter lawmakers from using the amendment proposition as a means to convey legislative intentions and maintain political visibility.
1-Page Summary
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Clarifications
- Article 5 of the U.S. Constitution outlines the process for amending the Constitution. It requires either a two-thirds agreement in both houses of Congress or a national convention to propose an amendment. The amendment then needs approval from three-quarters of state legislatures or state conventions for ratification. This intentional difficulty in the process reflects the framers' intent to ensure that amendments are not made lightly.
- The Equal Rights Amendment (ERA) was introduced in 1923 to guarantee equal rights regardless of sex. Despite gaining momentum in the 1970s, it faced challenges in achieving ratification by the required number of states. Political and legal barriers have hindered its incorporation into the U.S. Constitution, despite recent efforts to revive its ratification.
- "Positioning taking" in the context of proposing amendments refers to the strategic act of introducing amendments in Congress to showcase a lawmaker's stance on an issue, even if the likelihood of the amendment passing is low. It allows legislators to signal their positions to constituents and maintain relevance in the political sphere. Lawmakers use this tactic to demonstrate commitment to important matters and engage with the public, despite the slim chances of the proposed amendments becoming law. This practice helps lawmakers stay connected to their constituents and demonstrate their dedication to specific policy issues.
- The low success rate of amendments to the U.S. Constitution, with only 27 out of nearly 12,000 attempts passing, reflects the intentional difficulty built into the amendment process. This high bar for change underscores the framers' intent to ensure that amendments are significant and widely supported before becoming part of the Constitution. The rarity of successful amendments means that proposing changes, even if unlikely to pass, serves as a way for legislators to signal their positions on important issues without significant risk. Despite the challenges, proposing amendments allows lawmakers to engage with constituents and maintain visibility in the political arena.
Counterarguments
- The high threshold for amending the Constitution could be seen as a barrier to necessary and timely updates that reflect the evolving values and needs of society.
- The difficulty in amending the Constitution may disproportionately affect minority groups or emerging social issues that struggle to gain widespread support quickly.
- The two-stage process outlined in Article 5 might be criticized for being too inflexible in the face of urgent issues that require constitutional attention.
- The low number of ratified amendments could be interpreted as a sign of a static Constitution rather than a testament to the quality of the existing framework.
- The challenges faced by the Equal Rights Amendment could be viewed as indicative of a broader issue with the amendment process that fails to adequately address equal rights and protections.
- The practice of proposing amendments for political positioning could be criticized for potentially wasting legislative time and resources on initiatives that have little chance of success.
- The low-risk nature of proposing amendments might encourage performative politics rather than genuine legislative efforts to address pressing issues.
- The use of amendment proposals for maintaining political visibility could be seen as prioritizing the interests of politicians over substantive policy-making.
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The process of amending the U.S. Constitution
Nick Capodice and Robinson Woodward-Burns tackle the complexities and historical challenges of amending the U.S. Constitution, illustrating the legislative hurdles and the extraordinary difficulty of the process.
Article 5 establishes the amendment process
Article 5 of the U.S. Constitution details a two-pronged approach to amending the document, involving both proposal and ratification steps. An amendment may be proposed through the concurrence of two-thirds of both Congressional houses or by a convention called upon the request of two-thirds of state legislatures. Once proposed, the amendment must be ratified by three-quarters of state legislatures or by special state conventions.
Capodice further clarifies that the strict quantitive thresholds during both steps underscore the deliberate arduousness designed into the process, with neither the national nor state level unilaterally controlling amendments.
Amendments are very difficult to pass
Woodward-Burns points out that the U.S. Constitution is notably tough to amend, with a higher hurdle than any other national constitution ratified to date. The framers set this bar high probably due to the absence of existing models, contributing to the complexity and rigidity of the process.
Indeed, of approximately 11,970 proposed amendments, a mere 27 have been ratified, and none of the state-proposed amendments have succeeded, per Capodice and McCarthy. This staggering data reflects a success rate of below 0.002%, underscoring the rarity and significance of each ratified amendment.
The history of the Equal Rights Amendment
The Equal Rights Amendment (ERA) first appeared in 1923 but entered the national conversation in the 1970s, propelled by the feminist and labor movements. In 1973, Congress passed the amendment and initiated the state ratification process. The ERA, however, fel ...
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The process of amending the U.S. Constitution
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Clarifications
- Article 5 of the U.S. Constitution outlines the process for amending the document. To propose an amendment, it requires the agreement of two-thirds of both houses of Congress or a convention called for by two-thirds of state legislatures. For ratification, the amendment must be approved by three-quarters of state legislatures or by special state conventions. These specific thresholds ensure a deliberate and challenging process for amending the Constitution.
- The Equal Rights Amendment (ERA) is a proposed amendment to the U.S. Constitution that aimed to guarantee equal rights under the law regardless of sex. It was first introduced in 1923 and gained significant momentum during the feminist and labor movements of the 1970s. Despite passing Congress in 1973, the ERA fell short of the required ratification by three-quarters of the states. Revived interest in recent years has brought the ERA back into national discussions, highlighting ongoing debates about gender equality and constitutional protections.
- During the Trump administration, controversy arose as the National Archivist received conflicting advice on the Equal Rights Amendment (ERA) from the Department of Justice and arguments suggesting his responsibilities lay with Congress, not the administration. This conflict stalled the ERA's progress as the National Archivist was caught between differing interpretations of his role in the amendment's ratification process.
- The potential impact of the political climate under the Biden administration on th ...
Counterarguments
- The high threshold for amending the Constitution ensures stability and prevents frequent and potentially capricious changes, which could be seen as a positive aspect rather than a negative one.
- The difficulty in amending the Constitution reflects a commitment to the original principles and a cautious approach to altering the foundational legal document of the nation.
- The low success rate of proposed amendments could be interpreted as evidence that the Constitution, as written, effectively encompasses the necessary principles and rights, reducing the need for frequent amendments.
- The failure of the Equal Rights Amendment (ERA) to be ratified in the 1970s might be attributed to more than just the stringent amendment process; it could also reflect the societal attitudes and political climate of the time.
- The controversy surrounding the ERA's recent ratification efforts, including the role of the National Archivist, highlights the complex interplay between legal, political, and procedural factors, rather than solely the difficulty ...
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Reasons Congress proposes amendments that likely won't pass
Congress members often propose amendments to signal their positions on issues and to maintain public relevance, even though these amendments have little chance of passing.
Allows members of Congress to signal positions and stay relevant
Robinson Woodward-Burns notes that proposing amendments serves as a means for lawmakers to take a stand and be visible to their constituents and the broader public, an activity known as position taking in political science. By putting forth amendments, members of Congress can assert their opinions on legislative matters in a way that keeps them relevant and in the public eye. This practice allows them to appear serious and engaged with substantive policy issues without much risk.
Amendments have low risk since most don't pass
The risk associated with proposing amendments is low, given the slim odds of passage, especially with the slim majorities in Congress that fall decidedly short of the supermajorities needed to pass an amendment. Hannah McCarthy and Nick Capodice highlight the infrequency of successful amendments, drawing attention to the ...
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Reasons Congress proposes amendments that likely won't pass
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Clarifications
- Position taking in political science is the act of politicians publicly expressing their stance on various issues to demonstrate their values and priorities to constituents and the public. It is a strategic communication tool used by lawmakers to showcase their beliefs and engage with important policy matters. This practice helps politicians establish their identities, differentiate themselves from opponents, and maintain visibility in the political arena. By engaging in position taking, politicians aim to build trust with voters and shape public opinion on key legislative issues.
- A supermajority is a specified majority that is greater than a simple majority. In the context of passing an amendment in Congress, a supermajority is typically required to ensure broad support for the proposed change to the Constitution. This higher threshold is meant to prevent amendments from being easily passed without significant consensus among lawmakers. For example, in the U.S. Congress, a supermajority usually means two-thirds of the members in both the House of Representatives and the Senate must support the amendment for it to pass.
- The ratification process for amendments in the United States involves two methods: either approval by three-fourths of state legislatures or by special state ratifying conventions. Once Congress proposes an amendment, it is up to the states to ratify it. The process can be lengthy, as seen in the example of the 27th Amendment, which took over two centuries to be ratified. This process ensures that proposed amendments have widespread support before becoming part of the Constitution.
- The amendment referred to as being written in 1789 but not ratified until 1992 is the 27th Amendment to the United States Constitution. This amendment deals with congressional pay raises and states that any change in the compensation of members of Congress cannot take effect until after the next election of the House of Representatives. The amendment was initially proposed as part of the o ...
Counterarguments
- Amendments can be more than just symbolic gestures; they can initiate important policy discussions and lay the groundwork for future legislative efforts.
- The act of proposing amendments can be seen as a fulfillment of a Congress member's duty to represent their constituents' interests, rather than merely a tactic to stay relevant.
- The low success rate of amendments does not necessarily reflect their quality or the importance of the issues they address, but rather the complex nature of the legislative process and the high bar set for constitutional changes.
- The rarity of successful amendments could be interpreted as a testament to the stability and enduring nature of the U.S. Constitution, rather than as a negative reflection on the amendment process.
- Some proposed ...
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