Prior to the ratification of the Constitution, delegates in several State conventions were skeptical of the notion of a centralized government and were threatening not to ratify the document. The Framers realized a need to present a Constitution that empowered the States, ensured that States would retain their sovereignty, and that when Congress met, States would be able to propose changes to further limit the federal government. This realization gave birth to Article V of the U.S. Constitution which is often referred to as the “Amendment Clause.”
Article V describes two methods for proposing amendments to the Constitution. The first method is known as the Congressional method and the second as the Convention method. The Congressional method requires that two-thirds of both Houses of Congress must vote for the proposed amendment. Then Congress proposes the amendment to the States and three-fourths of the States must ratify that amendment before it is added to the Constitution. This method ensures that a small minority of the country still has the ability to prevent an amendment being added to the Constitution. Interestingly, this method is the one that was used for every amendment thus far.
The 2nd method, the Convention method, provides a way for the States to bypass Congress. As per Article V, “on the application of the Legislatures of two-thirds of the several States [Congress] shall call a convention for proposing amendments.” The amendments coming from this convention proceed to the States for ratification whether Congress approves of them or not. As with the first method, three-fourths of the States must ratify the amendment before it can be added to the Constitution.
Article V also offers Congress the ability to decide which of two ways is to be used by the States to ratify an amendment. Either the ratification is done by the State’s Legislature or with a convention that the State calls for the single purpose of ratifying an amendment. All amendments, except for the Twenty-First, have been ratified by the States’ Legislatures.
In addition to this proposal and ratification process for amendments, Article V states two things that are unchangeable even with the amendment process. One is that “no State, without its consent, shall be deprived of its equal Suffrage in the Senate.” That stipulation assures that every State will have the same number of Senators no matter how many members of Congress or other states want to change that part of our system. The second unchangeable item is that section 9 of Article I could not be amended prior to the year 1808. Section 9 deals with slave trade and thankfully in 1865 Amendment XIII abolished that practice in this country.
According to Michael B. Rappaport, professor of law at the University of San Diego Law School, “originalism — the view that we ought to follow the Constitution’s original meaning — holds that the constitutional amendment process should be the primary means for constitutional change.” The process requires consensus and consensus takes time. He believes that today the Supreme Court often intervenes before a consensus can emerge and oftentimes a change is made “before the amendment process has had a chance to operate.” As a result, consensus and the constitutionally-defined change process have been usurped by judicial interpretation rather than by the amendment process. This has also happened with overreach by the other branches of government and the bureaucracies.
The Framers also recognized that the congressional method was controlled by the federal government so they added the convention method to largely bypass the federal government and give power to the States. The Convention method, therefore, is an essential part of the original Constitution. Currently, the Convention of States Project, a national effort to call a convention under Article V of the United States Constitution, is attempting to garner the two-thirds of States required to convene a convention restricted to proposing amendments that will impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress. You can learn more about this project by going to https://conventionofstates.com.
According to Mark Levin, Article V is very, very important because it is the “only way we have today for the American people in a civil, legal, constitutional, and thoughtful way to work with their State Legislatures over time to begin the process of reclaiming their republic.”
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Our Trinity County SOJ Committee extends wishes to all for a Merry Christmas and a healthy, happy, and blessed New Year!