How Constitutional Amendments Come to Be

Democracy at Work: How Constitutional Amendments Come to Be

In Article VI, Clause 2, the United States Constitution proclaims itself to be the “supreme law of the land.” Every action the government takes must be in compliance with its founding document. The constitution concisely explains the three branches of government and their checks and balances against one another. The document is immutable except by constitutional amendment.

The first congress saw the passing of ten amendments, collectively known as the bill of rights. Changes to the Constitution are not taken likely, so the approval process is long and complicated. Thousands of amendments have been proposed, but only 17 have been ratified since 1791.

How Proposals Become Amendments

Amendments can originate one of two ways: the Federal Senate and House of Representatives must support a proposed amendment with a two-thirds majority; or two thirds of state legislators must vote to compel Congress to hold a constitutional convention. All current amendments were ratified using the first method.

If an amendment makes it that far, Congress decides whether state legislators vote on it or if the people of the states must elect delegates to vote at a constitutional convention. In either case, the amendment would need a three-fourth majority support to pass. The second method has only been successfully used once.

The Prohibition Example

The amendment process and our country’s system of checks and balances is best illustrated by the stories of the 18th and 21st amendments. During the early 20th century, the temperance movement sparked wide-spread anti-alcohol sentiment. Prohibitionist blamed alcohol for poor health and societal ills. In 1919, the 18th amendment criminalized “the manufacture, sale, or transportation of intoxicating liquors.”

President Woodrow Wilson, unhappy with the decision, vetoed the proposed Volstead act, which laid out Congress’s enforcement plan for the amendment. As provided by the constitution, Congress overrode his veto with a majority vote in both houses, so alcohol became officially prohibited.

Unfortunately, making alcohol illegal did not decrease demand or supply. So many brewers ignored the ban that law enforcement agencies were overwhelmed. Organized criminals took over the market, so, ironically, all profits from alcohol started directly contributing to social breakdown.

Prohibition fell out of popularity very quickly. The framers wanted to protect the constitution from frivolous changes, which is why the repeal of an amendment requires another amendment. After fifteen years of public outcry, Congress finally approved the 21st amendment, which would void amendment 18. Congress knew that the anti-alcohol lobby had a large influence on state politics, which is why they decided to do something unprecedented: call a constitutional convention.

Instead of leaving the decision to state officials who were worried about re-election, Congress called for special elections in each state to select delegates who would vote solely on the proposed amendment. The unprecedented constitutional convention saw the passing of the 21st amendment, the only amendment to nullify another.

The framers carefully constructed the constitution to prevent any individual, any branch of government or any group from holding too much political power. The amendment process allows us to change our laws provided a fair majority agrees upon the changes.