In addition to constitutional amendments proposed by Congress, states have the option of petitioning Congress to call a constitutional convention.
Legislatures in two-thirds of states must agree, however. While the convention process has yet to be triggered, efforts to do so are not new.
Interest in a U. In the early s, direct election of senators was a hot topic. In the s and s, federal taxing power was the focus of many applications. Two issues came close to triggering conventions during the s to s—apportionment and a balanced federal budget.
The current wave of interest began around Its focus is not a single issue nor is it being driven by one organization. Various groups are pushing their viewpoints—be they conservative, liberal, populist or progressive—and are urging action. On the one hand, legislation calls for a convention on a broad array of topics, such as limiting authority of the federal government, balanced federal budget, campaign finance reform, congressional term limits or federal debt.
While women enjoy more rights today than they did when the ERA was first introduced in or when it passed out of Congress in , hard-won laws against sex discrimination do not rest on any unequivocal constitutional foundation. They can be inconsistently enforced or even repealed by a simple majority vote. Elements of sex discrimination remain in statutory and case law, and courts have had difficulty applying a consistent standard to gender-based classifications, which are not inherently suspect or comparable to racial or ethnic classifications under equal-protection analysis.
The need for a federal Equal Rights Amendment remains as compelling as it was in , when now Supreme Court Justice Ruth Bader Ginsburg wrote in the Harvard Women's Law Journal : "With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And in the event of legislative default, the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal.
The traditional constitutional amendment process is described in Article V of the Constitution. Congress must pass a proposed amendment by a two-thirds majority vote in both the Senate and the House of Representatives and send it to the states for ratification by a vote of the state legislatures. The amendment becomes part of the Constitution when it has been ratified by three-fourths currently 38 of the states.
This process has been used for ratification of every amendment to the Constitution thus far. Article V also provides for an alternative process, which has never been utilized. If requested by two-thirds of the state legislatures, Congress shall call a constitutional convention for proposing amendments. To become part of the Constitution, any amendment proposed by that convention must be ratified by three-fourths of the states through a vote of either the state legislature or a state convention convened for that purpose.
The mode of ratification is determined by Congress, and in neither of these two processes is a vote by the electorate applicable to the ratification of a constitutional amendment. Article V makes no mention of a time limit for the ratification of a constitutional amendment, and no amendment before the 20th century had a time limit attached to it.
The first amendment with a time limit was the 18th Amendment Prohibition , proposed in The other is that it is biased in favor of the federal government and therefore does not allow amendments that would limit the national government.
If the original meaning were consistently followed, both of the defects would be eliminated. Some critics of originalism argue that the amendment process is too strict because it is difficult to secure approval by two-thirds of both Houses of Congress and three-quarters of the states. Therefore, these critics contend the Supreme Court should engage in nonoriginalist judicial interpretation to allow for modern circumstances and values to be incorporated into the Constitution.
The amendment process, however, is not too strict to allow for constitutional change. It is true that the process does require amendments to be supported by a consensus. See John O. Rappaport, Originalism and the Good Constitution The problem is not that the constitutional amendment process requires a consensus but that the Supreme Court often intervenes before a consensus can emerge. A consensus often takes a long time to develop. As a result, no amendment will be enacted, since the Court has already made a change.
By contrast, if the original meaning were followed, the amendment process would have the opportunity to enact changes in the Constitution that are supported by a consensus. This analysis helps to explain why so much constitutional change has occurred in the last three generations through judicial interpretation rather than the amendment process. For example, during the New Deal, the Roosevelt Administration did not attempt to pass constitutional amendments to give the federal government more regulatory power.
Instead, it attempted to pack the Supreme Court. There seems little doubt that the nation would have supported an amendment that conferred additional regulatory powers, but there is a good chance that the consensus requirement would have meant the federal government would have received less power than the Court eventually granted it.
A second problem with the amendment system is that its current operation is biased in favor of the federal government. The Constitution provides two methods for proposing amendments. While all of the existing amendments have been enacted through the congressional proposal method, in which two-thirds of each House of Congress proposes an amendment, no amendment has ever passed through the convention method.
Under that method, two-thirds of the state legislatures can apply for Congress to call a convention that would then decide whether to propose an amendment. The convention method was an essential part of the original Constitution. The drafters of the Constitution recognized that the congressional proposal method was controlled by the federal government.
Consequently, it could not be relied upon to reform federal governmental abuses. The drafters therefore placed the convention method into the Constitution, since this method largely bypasses the federal government. Michael B. Commentary 53 Unfortunately, this amendment method is broken. Many people who favor constitutional amendments that would limit the federal government are nonetheless unwilling to use this method, because they fear what is called a runaway convention—a convention that is called to propose amendments on one subject but then proposes them on other matters.
For example, state legislatures might apply for a convention to pass a balanced budget amendment, but the convention might then decide to propose an amendment allowing school prayer. This fear of a runaway convention has hobbled the convention method. Some of these amendments, however, would probably have been enacted under a functioning convention method. Many constitutional commentators have argued that a runaway convention is constitutional.
In their view, the Constitution does not allow the states to limit the convention to a particular subject and therefore the convention is free to make proposals on any subject of its choosing.
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