The process is pretty straightforward. Plenty of people want to make some change. And yet? We've only done it 27 times. So what does it take to amend the U.S. Constitution and why does it barely ever happen?
Robinson Woodward Burns, Associate Professor of Political Science at Howard University, is our guide.
Transcript
Archival: [00:00:01] Mr. president remains my sincere hope that the Senate will have the opportunity to consider the flag amendment today. June 14th National Flag Day.
Archival: [00:00:09] An amendment to be as an amendment to be. And I'm hoping that they'll ratify me.
Archival: [00:00:16] Amendment imposing term limits on Capitol Hill.
Archival: [00:00:20] Constitutional amendment to try to reverse Citizens United.
Archival: [00:00:23] A constitutional amendment that mandates a balanced budget and forces the federal government to live within its means. [00:00:30] Oh, yeah.
Nick Capodice: [00:00:33] You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: [00:00:35] I'm Hannah McCarthy.
Nick Capodice: [00:00:36] And today we are talking about amendments. Not any amendment in particular, but how they happen. The process for amending the Constitution.
Hannah McCarthy: [00:00:46] I'm really glad that we're talking about this, Nick, because we talk so much about our supreme law of the land, what it says and what it means. But this is another thing entirely. This is how we [00:01:00] change the Constitution and not to bury the lead, as we say in the journalism business. But this is pretty hard to do, isn't it, by the way?
Nick Capodice: [00:01:08] Hannah, do you know why lead as in like the introductory section of a story, uh, is spelled led e in journalism?
Hannah McCarthy: [00:01:17] I don't think I do know. I figured it was for the same nonsense reason we spell Graf Graf.
Nick Capodice: [00:01:24] Well, apparently it's so. It wouldn't be confused with the word lead, which meant a strip of metal that would [00:01:30] separate different lines of type.
Hannah McCarthy: [00:01:31] That's that's fascinating. And speaking of burying the lead, Nick, you're doing it right now.
Nick Capodice: [00:01:38] I sure am. Where were we? The Constitution is very difficult to amend.
Robinson Woodward Burns: [00:01:43] The US Constitution is the hardest constitution to amend, not only out of any national constitution in the world that's operative, but out of any that's ever been ratified or promulgated. So it's really, really hard to amend the national constitution.
Nick Capodice: [00:01:57] This is Robinson Woodward Burns.
Robinson Woodward Burns: [00:01:59] My [00:02:00] name is Robinson Woodward Burns, and I'm an associate professor of political science at Howard University.
Nick Capodice: [00:02:05] Robinson has talked with us a few times. He's the author of Hidden Laws How State Constitutions Stabilize American Politics Now, he said the framers were kind of in the dark when it came to altering the Constitution, uh, as they were in the dark about a lot of things. It was all pretty darn new.
Robinson Woodward Burns: [00:02:24] The process to amend the US Constitution was a novel process. The US Constitution [00:02:30] is the world's oldest national constitution to inhere in a single document. And so the framers of the Constitution didn't have any other national constitutions as models from which to work. There were a handful of state constitutions, uh, the oldest of them, though, was only 11 years old. And because there was relatively little model for how Constitution should be amended, either from other national constitutions or from state constitutions, the framers of the US Constitution came up with fairly arbitrary cutoff points.
Nick Capodice: [00:02:59] And I'll get to those [00:03:00] arbitrary cutoff points in a second. But I just want to throw in one line from James Madison's Federalist 43, where he talks about the need for an amendment process. He wrote, quote, the useful alterations will be suggested by experience could not, but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided.
Hannah McCarthy: [00:03:21] As in even we who shall come to be known as brilliant, perfect people who came up with this Constitution cannot predict everything. [00:03:30]
Nick Capodice: [00:03:30] Pobody's nerfect. Hannah.
Hannah McCarthy: [00:03:33] Okay, Nick, I understand that it's hard to amend the Constitution. It has only happened 27 times so far. But can we just talk about how it happens? Can we talk about where in the Constitution the amendment process is laid out?
Nick Capodice: [00:03:47] It is in article five. Hannah, I was trying to come up with a mnemonic device for this, and I like pictured James Madison saying, and if any of this doesn't work out, we'll just amend it later. And giving Alexander Hamilton a high five. [00:04:00]
Hannah McCarthy: [00:04:00] Like the freeze frame at the end of some 80s after school special.
Nick Capodice: [00:04:04] Yeah. And like fades out and music comes up and the credits roll. Alexander's like nice work Jimmy. I think a lot about that summer that we wrote the Constitution and then later those 85 essays we wrote supporting its ratification. I didn't know until years later those would be the most important days in my life. Anyways. Article five.
Robinson Woodward Burns: [00:04:27] So article five of the US Constitution [00:04:30] establishes the amendment process, and what it says is there's a two step path to amending the US Constitution. First, an amendment has to pass either two thirds of both houses of Congress or a convention called by two thirds of the states on a petition to Congress. The second stage was the ratification stage. Either three quarters of the states in their legislatures or in special conventions have to ratify or approve an amendment, [00:05:00] and then the amendment is enrolled as part of the Constitution. So it's.
Hannah McCarthy: [00:05:04] A two step process.
Nick Capodice: [00:05:05] Right? But there has been a new step. I'll actually call it a norm instead of a step, which is that the amendment then has to be certified.
Robinson Woodward Burns: [00:05:14] Specifically, it's the national archivist who's responsible for for certifying the amendment. That's a relatively new step. Now, there are other parts that aren't part of article five, like the Supreme Court has affirmed for about 100 years that Congress can specify an amendment has to pass within a certain period of time, usually [00:05:30] seven years. But the actual text of article five only includes those two steps the proposal step and the ratification step.
Hannah McCarthy: [00:05:37] Just to recap, the proposal step requires two thirds of both the Senate and the House of Representatives to agree and say we should have this amendment, and then if they do agree, it goes to the states for ratification, where three quarters of the states need to do the same thing.
Nick Capodice: [00:05:54] Exactly.
Hannah McCarthy: [00:05:56] Uh, real quick, what is three quarters of 50?
Nick Capodice: [00:05:59] It's [00:06:00] 37.5.
Hannah McCarthy: [00:06:01] Do they round it down or up? Well, they.
Nick Capodice: [00:06:03] Round it up. It needs to be at least three quarters of the states. So it is 38 okay.
Hannah McCarthy: [00:06:08] Got it. Now, Robinson said there was another way to do the proposal step that instead of Congress doing it, two thirds of the states can get together and propose an amendment.
Nick Capodice: [00:06:21] They can. And I'm way ahead of you here. Mccarthy two thirds of 50 is 33.33. So we round it up to 34.
Hannah McCarthy: [00:06:29] Now, I [00:06:30] know that a lot like a lot of amendments have been proposed over the years.
Nick Capodice: [00:06:35] I'm going to get to that.
Hannah McCarthy: [00:06:37] But how many have actually technically been proposed as in sent to the states for ratification?
Nick Capodice: [00:06:44] Yeah. It's like this tough linguistic thing like you hear all the time, Senator. So and so has proposed an amendment to do something or other, but for an amendment to really be quote unquote proposed, it needs that two thirds majority in both houses or the states. So here is the final [00:07:00] tally so far of amendments that made it past that first step that went to the states for ratification, first, by the method of two thirds of both houses, 33 times, okay.
Hannah McCarthy: [00:07:13] And by two thirds of the states.
Nick Capodice: [00:07:15] The grand total of state proposed federal amendments. Is that dangerous idea, Hanna?
Hannah McCarthy: [00:07:20] Zero zero.
Nick Capodice: [00:07:23] Zilch. It has never happened.
Robinson Woodward Burns: [00:07:25] There's never been a convention of the states organized to propose [00:07:30] amendments. And there have been attempts to do this over time. The most recent attempts, one in the 1960s when the Supreme Court made the states reapportion or rewrite their state legislative and congressional legislative districts, there was real backlash from the states, in part because a lot of legislators would have lost their jobs at the state level. And so they started petitioning Congress to call a convention to overrule the Supreme Court. Now, ultimately, they fall short of that two thirds supermajority. [00:08:00] You need 34 states to do that.
Nick Capodice: [00:08:02] Another attempt happened in the 1980s during the height of fiscal conservatism. Some states got together to push for a balanced budget amendment. There were a lot of big budgets at this time in history, especially for military and defense spending.
Robinson Woodward Burns: [00:08:16] What was actually happening is they were asking for a statute. And so people will say, we actually came close to a balanced budget amendment to that 34 state threshold. But according to historian who surveyed those records, David Kyvig dancers, probably not. We actually probably didn't [00:08:30] get that close. So at no point in history have we actually successfully called a convention to amend the US Constitution.
Hannah McCarthy: [00:08:40] All right. If 33 amendments went to the states for ratification and we only have 27, what were the six that didn't make the cut?
Nick Capodice: [00:08:49] I will talk about one of the six after a quick break, but the rest will go into extra credit.
Hannah McCarthy: [00:08:53] And what is extra credit, you ask?
Nick Capodice: [00:08:56] I can just hear him asking Hannah.
Hannah McCarthy: [00:08:58] Why it is our free, [00:09:00] silly, trivia filled newsletter that we put out every other week. You can and you should sign up at our website civics101podcast.org. We're back. We're talking about how we amend the US Constitution. And, Nick, you were on the verge of telling me about one of the six amendments that [00:09:30] made it to the ratification step, but did not cross the finish line.
Nick Capodice: [00:09:33] I was indeed, this is an amendment that has been argued about for over a hundred years, the Equal Rights Amendment.
Hannah McCarthy: [00:09:40] As a quick aside, Nick and I did an episode on the Equal Rights Amendment many, many years ago.
Nick Capodice: [00:09:46] Six years ago. Can you believe it?
Hannah McCarthy: [00:09:48] Six, six years? Uh, be that as it may, there is a link to it in the show notes.
Nick Capodice: [00:09:53] Yeah, and it needs updating. Uh, thank you, Hannah. And here to tell us about the long journey of the era again is Robinson. [00:10:00] Woodward. Burns.
Robinson Woodward Burns: [00:10:01] There have been patterns in kind of amendment proposal around the Equal Rights Amendment going back to 1923. That was when the first Equal Rights Amendment was proposed, on the heels of the 19th amendment, which guaranteed female suffrage, the Equal Rights Amendment, just as the female suffrage amendment forbade, uh, disenfranchisement on the basis of sex, the Equal Rights Amendment forbade denial of equal treatment under the law on the basis of sex.
Nick Capodice: [00:10:25] The phrasing of this amendment varied over the years. It was reintroduced in [00:10:30] every single Congress, but it just never made it out. Labor unions opposed it initially. Working women supported it, and we don't see a shift until 50 years later.
Robinson Woodward Burns: [00:10:41] By the 1970s, the feminist movement and the labor movement had coalesced around the era. And in 1973, you actually see a movement on the heels of the Rowe case, in which Congress passes the amendment and sends it to the states, and it comes really close. It actually comes only three states short. So you need three quarters of the states [00:11:00] to ratify an amendment. And it got to 35.
Nick Capodice: [00:11:04] But the ERA hit its deadline in 1979. And then there were hearings in Congress to extend the deadline. And those came up against fierce opposition.
Robinson Woodward Burns: [00:11:12] There was actually a lot of backlash from some conservative feminists, like Phyllis Schlafly, who thought that it would force women into gender neutral bathrooms, for example, or that it might allow same sex marriage or access to abortion.
Phyllis Schlafly: [00:11:26] And I think it's a very interesting that these women who who try to tell the world [00:11:30] that they're self-reliant and independent and as capable as men, uh, look to the federal government to solve all the problem.
Robinson Woodward Burns: [00:11:37] And so the backlash to it, it almost killed the amendment.
Nick Capodice: [00:11:42] However, in the 20 tens, there was a revival of interest in the Equal Rights Amendment, in part due to the growing MeToo movement. And some new scholarship came to light that the amendment never actually had a deadline in its literal text.
Robinson Woodward Burns: [00:11:57] So the amendment was, according to these scholars, still live. [00:12:00] The remaining three states actually ratified it. Virginia was the last. But what was tricky is that it happened during the Trump administration. And so the amendment then went to the national archivist, who kind of had this tricky choice of whether to figure out whether these final three ratifications were valid. And the Trump administration, the Department of Justice sent a memo to the archivist, uh, Quigley, saying that, no, you can't ratify the amendment. Now, I argued in a piece in The Atlantic that because the archivist actually answers to Congress, the Trump administration couldn't [00:12:30] do this. But politically, at that point, the issue was dead. Now, maybe had Virginia waited a year until the Biden administration, we'd have had a different outcome. But ultimately, it looks like politically, the Equal Rights Amendment is dead.
Hannah McCarthy: [00:12:43] Okay, last thing here, Nick. What about the other ones, the other amendments that were proposed but never made it out of Congress? How many have there been?
Robinson Woodward Burns: [00:12:53] There have been, as of 2021, 11,970 amendments proposed to the Constitution, and only 27 [00:13:00] of those have been ratified. That's a 0.002% success rate.
Hannah McCarthy: [00:13:04] 11,970.
Nick Capodice: [00:13:08] Yep.
Hannah McCarthy: [00:13:10] We what have these been about? I mean, there's a lot. But like what do people try to get amended everything.
Nick Capodice: [00:13:17] Hannah. Uh, to establish every American's right to a home, to ban flag burning, to make the president's terme eight years and the representatives for to prohibit abortion, to allow abortion, to prohibit school prayer, to mandate [00:13:30] school prayer. 700 of these are about prayer, uh, to prohibit public drunkenness, to ban dueling. To put God in the preamble, I downloaded a spreadsheet of all of them, and I spent entirely too long reading it.
Robinson Woodward Burns: [00:13:43] There was an amendment, for example, 100 years ago, to rename the United States of America, the United States of the world, speaking to the colonial ambitions of the United States at the time.
Hannah McCarthy: [00:13:53] Who who.
Hannah McCarthy: [00:13:55] Proposed that?
Nick Capodice: [00:13:56] I'm glad you asked Lucas Miller of Wisconsin, who [00:14:00] proposed it in his first terms in 1893, and he said, quote, it is possible for this republic to grow through the admission of new states until every nation on earth has become part of it. Miller did not get elected to a second time.
Hannah McCarthy: [00:14:14] Well, this brings me to a really big question, and I guess I could guess. The answer based on the proposal of a lot of bills that never get passed. But why do members of Congress propose these amendments, knowing that there is pretty much no chance whatsoever that they will pass? [00:14:30]
Robinson Woodward Burns: [00:14:30] It's a timely question. After Ron DeSantis dropped out of the Republican primary, the first thing he did was propose four amendments to the Constitution. Now, Ron DeSantis didn't seriously think these amendments were going to pass, right? Every amendment that's proposed is almost certainly doomed, especially in today's really polarized Congress, where we have very narrow majorities of only 1 or 2 seats in any given chamber, far short of the two thirds super majorities necessary to propose an amendment. Why do members of Congress, or why did Ron DeSantis propose [00:15:00] amendments? Um, it's what we call in political science position taking. If a legislator or a lawmaker wants to put themselves out in front of the public, they can do that through amendments by proposing amendments. Because amendments are low risk, there's actually pretty low chance it will pass. And so they can just put out throwaway amendments, and an amendment might actually look like it's a pretty serious or significant measure to the public. And after all, it's a proposal to change the basic law of the country. So if you want [00:15:30] to seem like you're doing something serious or important with pretty low risk or low cost, one way to do that is to propose an amendment. It's a way to stay in the public's eye. If you feel like you may be less and less relevant. And that's exactly why Ron DeSantis threw out these kind of four throwaway amendments to the Constitution.
Hannah McCarthy: [00:15:58] What's interesting to me [00:16:00] is that right now, in February of 2024, we're in a record setting moment of government inaction, if you will, right? The current Congress, the 118th, passed 27 bills total in 2023, the fewest in modern history. So if you're not legislating and you don't want to get into trouble by proposing a controversial bill, this amendment signaling, what is it? Maybe all you have. Yeah.
Nick Capodice: [00:16:27] And to further that point, actual amendments [00:16:30] that make it through the process, they haven't happened for a long, long time. Our most recent one, the 27th amendment, which is about the rather humdrum notion of not changing Congress's salary mid-session. Yeah, it was ratified in 1992, but it was written in 1789. It was one of the 12 to be included in the Bill of rights, and it was just recently revisited. It's not new.
Robinson Woodward Burns: [00:16:54] No amendment proposed by Congress has actually cleared ratification since the early 1970s. And so we're in this period of [00:17:00] of real decline of national amendment. And what I remind my students is that, again, there's a live tradition of amendment at the state level. There are almost two dozen states that allow voters to propose revision of their their laws, either through statutes or in either 18 or 19 cases, depending on whether you count Mississippi, uh, revision of laws through constitutional amendment. And so, you know, because we see so much stasis and gridlock at the national level, I encourage, you know, my students or people interested in reform [00:17:30] to look at their state constitutions and local laws and statutes.
Nick Capodice: [00:17:35] We say it so much, Hannah, you have to think at some point people will start to do it.
Hannah McCarthy: [00:17:41] Yeah, it's just not as fun. If you want change, you got to think local. This episode was produced by Nick Capodice and Me, Hannah McCarthy. Music in this episode by Bomull, A P O L L O, baegel, Kevin [00:18:00] MacLeod and Dusty Decks. If you like us, please, please, please let us know. Deep down, we are still those theater kids eagerly awaiting notes at the end of tech. Leave us a rating on Apple Podcasts, Spotify, or wherever you get your podcasts. We're here for you. As long as we are all trying to keep this Republic. Civics 101 is a production of NHPR, New Hampshire Public Radio.