Chapter 10: Constitutional Amendments

The Constitution never would have been written if amending the Articles of Confederation had been easy. To make any change in that first charter required the consent of both the Continental Congress and every state.

In drafting a better amending procedure, delegates to the Constitutional Convention in 1787 had little guidance. Six of the thirteen state constitutions had been written as “perpetual charters” without provision for amendment. Only three state legislatures were empowered to propose changes. In four, the amending power was vested solely in popular conventions.

The unwritten British constitution could be altered by Parliament. Although governmental principles did exist to contain and guide Britain’s governing institutions, there was neither a document to define nor an agency to declare what was “unconstitutional.” Acts of Parliament were the supreme law of the land.

America’s founders were unwilling to rely on so flexible a base. The thirteen independent states would not surrender part of their newly won sovereignty without a clear, written understanding of the Union they were joining. Furthermore, they would need guarantees that the new national government would not unilaterally alter the terms of the agreement, particularly to reduce the sovereignty retained by the states.

The reliance on separation of powers and on checks and balances for protection against capricious government required that the arrangement not be subject to easy alteration, lest the separation and the balance be destroyed. Arbitrary acts of Parliament persuaded the former colonists that certain rights must be inviolable and must be protected by a law that no one government agency could change.

Consequently, the Constitutional Convention sought to write a document to embody the fundamental law of the land. And yet the delegates assembled in Philadelphia realized that they could not anticipate all future needs of the new nation. They devised a Constitution that would be easier to amend than the Articles of Confederation but more difficult to revise than the British “constitution.” They built into the amendment process the principle of checks and balances basic to the Constitution itself, and they reserved to the states the ultimate power to alter the agreement into which the states had entered.

Thus the task of amending the Constitution under Article V, while certainly easier than under the Articles of Confederation, still is a difficult undertaking. One-third plus one of the members voting in either chamber can block Congress from proposing an amendment. And if an amendment does receive congressional approval, the legislatures of only thirteen of the fifty states—or just one house of thirteen state legislatures—can block ratification. (The Constitution requires the consent of the entire legislature of three-fourths of the states to approve amendments.)

In their book Government by the People, James MacGregor Burns, Jack W. Peltason, and Thomas E. Cronin observed that