By Jonny Lupsha, Wondrium Staff Writer
Calls to action for amending the U.S. Constitution are everywhere. As a controversial Supreme Court drafts opinions on several issues, clamor for a new amendment to the Constitution has gained momentum. In the United States, constitutional amendments can be proposed two ways.
Public officials and activists have recently called for several amendments to the Constitution of the United States. While some advocate for term limits to be addressed in a new amendment, others push for the long-stagnant Equal Rights Amendment to be ratified. The last amendment to be ratified was the 27th Amendment, in 1992, which forbade Congress from voting itself pay raises without giving constituents the opportunity to register their approval or disapproval.
Making sense of constitutional amendments starts with understanding how they’re proposed. In his video series Law School for Everyone: Constitutional Law, Professor Eric Berger, Professor of Law at the University of Nebraska College of Law, explains the process of amending the U.S. Constitution.
How a Proposition Becomes an Amendment
“Article V of the Constitution provides two ways of proposing a constitutional amendment,” Professor Berger said. “The first requires a two-thirds vote by each house of Congress. The second requires two-thirds of state legislatures to request that Congress call for a convention, which would then debate and propose constitutional amendments.”
Regardless of which approach is taken, the amendment would need to be ratified by three-quarters of states to become law. With 50 states, this means 38 would need to ratify it. Three-quarters of 50 is 37.5, but obviously 37.5 states can’t ratify anything. Each of the 27 amendments have been passed via the first method, but Professor Berger said a movement is growing to call a constitutional convention, in order to limit the scope of federal power and require a balanced budget.
These goals are conservative agenda items, but they have notable liberal supporters, as well, including University of Texas Law School faculty member Dr. Sanford Levinson. Dr. Levinson has often called for a constitutional convention to address what he considers the failings of the U.S. Constitution.
You Had One Job
We have just one idea of what a Second Constitutional Convention would look like, as the previous one took place in 1787 and led to the ratification of the initial Constitution.
“Given the country’s intense political disagreements, it seems safe to assume that the process could be chaotic and divisive, especially since there are no clear ground rules,” Professor Berger said. “For example, there are no rules limiting a constitutional convention to a single topic; so, even if states called a convention to propose, say, a balanced budget amendment, it’s entirely possible that the convention could propose something else instead.”
Again, there’s historical precedent for this concern. The Constitutional Convention of 1787 was initially called to amend the Articles of Confederation and resulted in their complete dissolution in favor of the U.S. Constitution—which must have come as a shock to the American public.
Another uncertainty lies in who would pick delegates to a convention and if they would try to control the delegates per their own purposes.
“However a constitutional convention may play out, it is clear that it would be an intensely political process,” Professor Berger said. “While it might improve on the existing Constitution, it could also make things much worse.”
Law School for Everyone: Constitutional Law is now available to stream on Wondrium.