Having Senators elected by the people, instead of by state legislators, may have been a big change. But the Seventeenth Amendment did not have much to do with it. Before the Seventeenth Amendment was adopted, most states had already cleverly figured out ways to make sure that the people—not state legislators—elected Senators.
All of that happened before the Constitution was amended. You can compare this change to a change in the way we elect the President. Formally, the President is elected by electors, not by the voters directly. Originally, the idea was that electors would be people with good judgment who would make up their own minds about who should be President. Now, for practical purposes, the electors vote automatically for the candidate who won the vote in their state. No constitutional amendment authorized this major change.
Congress approved the amendment, but not enough states did, so it never became part of the Constitution. But the Supreme Court interpreted other parts of the Constitution to prevent sex discrimination, and today it is hard to identify any way in which the law would be different if the ERA had been formally added to the Constitution. The Fifteenth Amendment supposedly guaranteed that people could not be kept from voting because of their race. It was added to the Constitution in But well into the middle of the twentieth century, African-Americans in many parts of the United States were kept from voting by illegal means.
If you just picked up a copy of the Constitution and read it, you would be completely misled about this disgraceful history. The Fourteenth Amendment , adopted in , had a similar fate. It was intended to prevent many forms of discrimination against minorities.
But its promise was not realized until almost a century later, during the civil rights era. A case can be made that the earliest constitutional amendments did matter.
That would include the Bill of Rights, for example, and the Twelfth Amendment , which fixed a problem in the way the President and Vice President were originally chosen.
And several amendments have been useful housekeeping measures, like the Twenty-Fifth Amendment , which says what happens if the President is disabled. But if you really want to understand how the United States Constitution changes—in practice, not just on paper—constitutional amendments are a small part of the story. The real action—in many ways, our real Constitution—is elsewhere, in the way the courts, Congress, the President, and the people in their daily lives have brought us the Constitution we have today.
The amendment process, however, has been criticized for having two defects. One is that it is too strict and therefore makes it too difficult to enact amendments. 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.
Ratification by three-fourths of the states. Ratification of the amendment language adopted by Congress is an up-or-down vote in each legislative chamber. A state legislature cannot change the language. If it does, its ratification is invalid. Step 4. Tracking state actions. Proposed amendments must be ratified by three-fourths of the states in order to take effect. Congress may set a time limit for state action.
Legislatures must return specific materials to show proof of ratification. Step 5. When the requisite number of states ratify a proposed amendment, the archivist of the United States proclaims it as a new amendment to the U.
Actual certification is published immediately in the Federal Register and eventually in the United States Statutes-at-Large. State legislatures often call upon Congress to propose constitutional amendments. While these calls may bring some political pressure to bear, Congress is under no constitutional obligation to respond.
The U. The idea must be one of major impact affecting all Americans or securing rights of citizens. Recently, an amendment to outlaw flag burning may be gathering steam and President Clinton has endorsed the idea of a crime victims' rights amendment.
Other amendment proposals that are popular with some congressional leaders would allow voluntary school prayer, make English the country's official language, and abolish the Electoral College. Among amendments adopted this century are those that gave women the right to vote; enacted and repealed Prohibition; abolished poll taxes; and lowered the minimum voting age from 21 to The amendment process is very difficult and time consuming: A proposed amendment must be passed by two-thirds of both houses of Congress, then ratified by the legislatures of three-fourths of the states.
The ERA Amendment did not pass the necessary majority of state legislatures in the s. Another option to start the amendment process is that two-thirds of the state legislatures could ask Congress to call a Constitutional Convention.
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