While Barack Obama, Congress and the Senate rant away on proposals to take away or modify our rights guaranteed under the Second Amendment... maybe these fools should actually read the process by which this can be obtained...there are no shortcuts to the process...in reality if they sidestep the process and make illegal amendments/laws to the Constitution and the Bill of Rights be it known none can be enforced because they would be illegal laws defined within the Bill of Rights!
Constitutional Amendments
Article V of the Constitution spells out the processes by which amendments can be proposed and ratified.
To Propose Amendments
- In the U.S. Congress, both the House of Representatives and the Senate approve by a two-thirds supermajority vote, a joint resolution amending the Constitution. Amendments so approved do not require the signature of the President of the United States and are sent directly to the states for ratification.
- Two-thirds of the state legislatures ask Congress to call a national convention to propose amendments. (This method has never been used.)
- Three-fourths of the state legislatures approve it, or
- Ratifying conventions in three-fourths of the states approve it. This method has been used only once -- to ratify the 21st Amendment -- repealing Prohibition.
Of the thousands of proposals that have been made to amend the Constitution, only 33 obtained the necessary two-thirds vote in Congress. Of those 33, only 27 amendments (including the Bill of Rights) have been ratified.
There are essentially two ways spelled out in the Constitution for how to propose an amendment. One has never been used.
The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically
seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd).
The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments
are then sent to the states to be approved by three-fourths of the
legislatures or conventions. This route has never been taken, and there
is discussion in political
science circles about just how such a convention would be convened, and
what kind of changes it would bring about.
Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a
discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by simple majority.
The Constitution, then, spells out four paths for an amendment:
- Proposal by convention of states, ratification by state conventions (never used)
- Proposal by convention of states, ratification by state legislatures (never used)
- Proposal by Congress, ratification by state conventions (used once)
- Proposal by Congress, ratification by state legislatures (used all other times)
It is interesting to note that at no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 US 378 [1798]):
The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.
Another way the Constitution's meaning is changed is often referred to as "informal amendment." This phrase is a misnomer, because there is no way to informally amend the Constitution, only the formal way. However, the meaning of the Constitution, or the interpretation, can change over time.
There
are two main ways that the interpretation of the Constitution changes,
and hence its meaning. The first is simply that circumstances can
change. One prime example is the extension of the vote. In the times of
the Constitutional Convention, the vote was often granted only to monied
land holders. Over time, this changed and the vote was extended to more
and
more groups. Finally, the vote was extended to all males, then all
persons 21 and older, and then to all persons 18 and older. The informal
status quo became law, a part of the Constitution, because that was the
direction the culture was headed. Another example is the political
process that has evolved in the United States: political parties, and
their trappings (such as primaries and
conventions) are not mentioned or contemplated in the Constitution, but
they are fundamental to our political system.
The
second major way the meaning of the Constitution changes is through the
judiciary. As the ultimate arbiter of how the Constitution is
interpreted, the judiciary wields more actual power than the
Constitution alludes to. For example, before the Privacy Cases, it was
perfectly constitutional for a state to forbid married couples from
using contraception; for a
state to forbid blacks and whites to marry; to abolish abortion. Because
of judicial changes in the interpretation of the Constitution, the
nation's outlook on these issues changed.
In
neither of these cases was the Constitution changed. Rather, the way we
looked at the Constitution changed, and these changes had a
far-reaching effect. These changes in meaning are significant because
they can happen by a simple judge's ruling and they are not a part of
the Constitution and so they can be changed later.
One other way of amendment is also not mentioned in the Constitution, and, because it has never been used, is lost on many students of the Constitution. Framer James Wilson, however, endorsed popular amendment, and the topic is examined at some length in Akhil Reed Amar's book, The Constitution: A Biography.
The notion of popular amendment
comes from the conceptual framework of the Constitution. Its power
derives from the people; it was adopted by the people; it functions at
the behest of and for the benefit of the people. Given all this, if the
people, as a whole, somehow demanded a change to the Constitution,
should not the people be allowed to make such a change? As
Wilson noted in 1787, "... the people may change the constitutions
whenever and however they please. This is a right of which no positive
institution can ever deprive them."
It
makes sense - if the people demand a change, it should be made. The
change may not be the will of the Congress, nor of the states, so the
two enumerated methods of amendment might not be practical, for they
rely on these institutions. The real issue is not in the conceptual. It
is a reality that if the people do not support the Constitution in its
present form,
it cannot survive. The real issue is in the practical. Since there is no
process specified, what would the process be? There are no national
elections today - even elections for the presidency are local. There is
no precedent for a national referendum. It is easy to say that the
Constitution can be changed by the people in any way the people wish.
Actually making the change is another story
altogether.
Suffice it to say, for now, that the notion of popular amendment makes perfect sense in the constitutional framework, even though the details of effecting popular amendment could be impossible to resolve.
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