10 March 2010

Amending The Constitution: Simple, But Not Easy

In the wake of the recent decision by SCOTUS reversing limits on corporate and union direct contributions to political campaigns there is a move afoot to initiate a constitutional amendment to override that decision.

There have been a number of amendments and proposed amendments through the years with the most recent being the Equal Rights Amendment which failed to gain full ratification by a sufficient number of states. And therein lies the difficulty.

Article V of the constitution says, "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 one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior tot he 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."

In short, the process consists of two steps:proposal and ratification.

1. Both Houses of Congress must propose the amendment with two-thirds vote. This is how current amendments have been offered. Or...

2. Two-thirds of the State legislatures must call on Congress to hold a Constitutional Convention.

1. Three-fourths of the State legislatures must approve of the amendment as proposed by Congress, or...

2. Three-fourths of the states must approve the amendment via ratifying conventions. This method has only been used once, to repeal Prohibition (21st Amendment).

The Supreme Court has held that ratification must happen within a reasonable period of time which, since the 18th amendment, has come to mean seven (7) years.

There have been only 33-amendments proposed by congress. Of those, only 27 were ratified by the States.

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