Is the US constitutional amendment process constitutional?


#1

The ratification of the US Constitution in 1788 was by the state legislatures, and only free white-male property owners were allowed to vote in state elections. The total popular vote in the first election for the House of Representatives is based on the same electorate and it was only about 21,000 or about .5% of the total population in the 1790 census. http://althistory.wikia.com/wiki/United_States_House_of_Representatives_elections,1788-89(Election_Insurrection)

In addition, ratification by the Rhode Island only occurred after a threatened trade embargo from the rest of the states passed the US Senate. In spite of the tiny number in the electorate, most of the language of the original Constitution along with the entire Bill of Rights still has the force of law.

Any change to the this language with a constitutional amendment would require 2/3 majorities in both the House and Senate along with ratification by 3/4 of the state legislatures. The number of voters in the last presidential election was over 168 million, so effectively it would take the voice of roughly 10,000 modern voters to override the voice of one voter in 1788.

How does that square with equal protection and equal voting rights that are guaranteed under the constitution? Is the constitutional amendment process really unconstitutional?

In Britain, a simple majority in the House of Commons is sufficient to change the constitution. Is that a better system?

On the other hand, the European Union requires the approval of every member state to amend the treaty used to form the union. How is that likely to work over time?


#2

it depends on what the meaning of the word “is” is


#3

I think that the Constitution can be amended without following the requirements (though I don’t think this should be done lightly). The Constitution was not in accirdance with the Articles of Confederation.


#4

The Articles of Confederation allowed deals between states, which allowed the constitution to take effect before every state had ratified. Like the EU, the Articles of Confederation required unanimous consent from the member states to make any changes.

A basic issue that I see is that Supreme Court has effectively asserted the ability to amend the constitution. They argue that the constitution is a “living document” which means that they are free to treat it as an ink blot and see whatever they want to see in it.

I think a better alternative would be to make it easier to amend the constitution rather than allow 5 judges to effectively have more voice than 100+ million voters.


#5

Delegates were sent to amend the AoC, not replace it.

The relationship between EU members and US states is not the same culturally, socially, or politically.

They’ve never come out and said that. None of this has to do with what I’m saying though. A clause in a constitution claiming it can’t be replaced is a nonsense clause. And seems like this would be equally tru for amendment rules.


#6

As long as the current document stands, so must the rules contained within it.


#7

Then just call the unconstitutionally amended document a new document.


#8

They did no? I mean, it wasn’t the AOC anymore………


#9

I’m talking about with this one.


#10

Not sure I"m following you.

I’ve seen arguments that certain amendments were not properly passed according to the rules, but I tend to think that is splitting hairs and it is still the same document but amended.


#11

The founders wanted it to be difficut to amend the constitution. They wanted the politicians to know for sure that the citizen really wanted the change. That’s why it was made into a veto proof margin in both the house and senate. Then it would go to the states where 3/4 of the states would need to ratify the amendment as well.

There is no place in the constitution repealling the way to amend it. It thereby stands as constitutional and one of only two ways to amend the constitution.

No it is not. With the super majority’s needed, any amendment isn’t something made on a whim. Pretty much both parties have to know they want to and need to amend the constituti9on.

And that’s what scares the hell out of some of us that don’t want anouther constitutional convention. Not very likely to happen the way it did back then. The way things are, anything that didn’t have the 3/4 vote of all states (either by the delegates in the convention) or the state legislatures would be fought in the courts. And with the courts to day, who knows how they would rule.


#12

This is false. Only the equal representation of the Senate cannot be changed.


#13

You lost me.

I said there is no place in the constitution, nor it’s amendments, that has repealed the original way(s) of amending the constitution.

You say this is false? please show me where in the amendments it was repealed or superceded. Please and thank you.

I have no Idea what your talking about with the Senate thing.


#15

How do they count dead people’s votes now? :sunglasses:


#16

No, I am saying that any changes or clarifications to the decisions ratified by a tiny electorate in the 1780’s require a supermajority based on a modern electorate that is roughtly 10,000 times bigger through the amendment process.

On the other hand, five justices on the Supreme Court are effectively free to amend the constitution with no practical way of overriding their decision. For example Court has effective incorporated the so-called equal rights amendment into the fourteenth amendment even though its ratification was defeated in the 1980s. The court is retroactively saying that the 19th amendment for women’s suffrage was unnecessary and could be deleted.

On possible solution would be to pass a bill in congress on constitutional questions. The bill would remove any further jurisdiction of courts to review constitutionality of the interpretation given in the bill.

That power is allowed in the constitution, but it has been rarely used:

. . .the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. Article III section 2

That approach is very similar to the way the UK operates.


#17

Here is the text of Article 5:

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 the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the 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.

The highlighted passage gives the only two restrictions on what an amendment may say:

  • Modifying the clause on limiting the slave trade:

no Amendment which may be made prior to the 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

  • Giving any state more or fewer senators:

no State, without its Consent, shall be deprived of its equal Suffrage in the Senate


#18

I’d say a process that is outlined in the constitution (i.e. the amendment process) is pretty constitutional.


#19

You are misreading that section. Congress does not have the power to “remove” judicial review.


#20

Congress is free to remove anything not defined in the constitution as part of the court’s original jurisdiction:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
United States Constitution Article III, § cl. 2

That was accepted by the court back during Reconstruction:


#21

On what grounds can you say this?