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- Read this about Judges are to make law is OK ??
B. Judges Are Lawmakers, Not Just Technicians
So what if the Missouri Plan lacks democratic legitimacy? While the
politicians in the legislative and executive branches should be democratically
elected, judges are not supposed to be politicians, are they? Judges, advocates
of the Missouri Plan argue, should be selected on their professional
merit, not their political popularity.52
The problem with this view is that it rests on a one-sided view of the
role of a judge. It emphasizes the judge’s role as legal technician at the expense
of the judge’s role as lawmaker. Of course, judging does involve the
narrow, lawyerly task of applying to the facts of a case the law made by
someone other than the judge (e.g., a legislature). But judging also involves
the exercise of discretion. Within the bounds of this discretion, the judge
makes law.
This point is not new or controversial. Our common law system – going
back centuries to England – rests on judge-made law.53 And judges do not
51. Id. at 154.
52. See, e.g., Honorable Jay A. Daugherty, The Missouri Non-Partisan Court
Plan: A Dinosaur on the Edge of Extinction or a Survivor in a Changing Socio-Legal
Environment?, 62 MO. L. REV. 315, 318-19 (1997) (“The Plan seeks to improve the
selection process and promote superior decision making from the bench by emphasizing
professional qualifications rather than political influence.”).
53. See, e.g., Maimon Schwarzschild, Keeping It Private, 44 SAN DIEGO L. REV.
677, 680 (2007) (“For many centuries in England, and well into the twentieth century
there and in other English-speaking jurisdictions, the law of tort and contract – the
2009] MISSOURI PLAN IN NATIONAL PERSPECTIVE 767
always find the law; sometimes they make the law and make it in accord with
their own political views. This, of course, is the basic reality exposed by
Legal Realism nearly a hundred years ago.54 And it is virtually impossible to
find anybody who disputes it today. That “we are all realists now” is so thoroughly
accepted as to be a cliché.55 “It is a commonplace that law is ‘political.’”
56
So honesty requires defenders of the Missouri Plan to acknowledge
frankly that judges are not merely technicians; they are also lawmakers. Just
as it is one-sided to denigrate the technical, lawyerly side of judging by
claiming that judges are simply “politicians in robes,”57 it is also one-sided to
denigrate the lawmaking side of judging by claiming that the political views
of a judge are irrelevant to his or her job as a judge.
heart of private law – was mostly judge-made common law, with statutes few and far
between. Even today, much of the law of tort is common law, and although contract
law in the United States is substantially governed by the Uniform Commercial Code,
the UCC itself is largely a codification or restatement of common law doctrines and
rules.”); James E. Herget, Unearthing The Origins of a Radical Idea: The Case of
Legal Indeterminacy, 39 AM. J. LEGAL HIST. 59, 64 (1995) (“unlike the continental
legal tradition, the common law tradition recognized and accepted as authoritative, the
proposition that judges make law”).
54. See, e.g., MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW,
1870-1960, at 169-212 (1992) (legal realism’s most important legacy was its challenge
to the notion that law has an autonomous role separate from politics); Michael
C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98
COLUM. L. REV. 267, 274 (1998) (“[T]he program of unmasking law as politics [was]
central to American Legal Realism . . . .”); Thomas W. Merrill, High-Level, “Tenured”
Lawyers, 61 LAW & CONTEMP. PROBS. 83, 88 (1998) (“We live in a post-
Legal Realist Age, when most legal commentators take it for granted that law cannot
be disentangled from politics and that legal judgment is driven by the political beliefs
of the decisionmaker.”); Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L.
REV. 883, 886 (2006) (“Now, having for generations bathed in the teachings of
Holmes and the Realists, we heed their lessons. We no longer deny the creative and
forward-looking aspect of common law decisionmaking, and we routinely brand those
who do as ‘formalists.’ It is thus no longer especially controversial to insist that
common law judges make law.”).
55. Brian Leiter, Rethinking Legal Realism: Toward a Naturalized
Link to total document:
http://law.missouri.edu/lawreview/docs/74-3/Ware.pdf
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- You have fallen into the LAW SCHOOL taught system of law that does not exist in CONSTITUTIONAL LAW - NOW DOES IT? I think you would agree that the Article III limits on the Judiciary includes none of the powers you have laid out in your fine listing of Case Law Theory. Would you not agree that they courts had no authority to even hear most of the cases it has ruled upon?Either the CONSTITUTION means what it says and says what it means or there is no Constitution at all - it which case the courts could as has been said since the usurped powers - that the Constitution says what the Supreme Court says it says - would you not agree that is pure anarchy and evidence of a new concept of Constitutional LIMITED powers. Would you not agree that these actions change the intent and purpose of a LIMITED Government - do these acts not change the design and construction from a RULE - BY - LAW Republic to a RULE - BY - MAN Democracy?
Article 3 - The Judicial Branch
Section 1 - Judicial PowersThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.[would the highlighted area not indicate that the Courts are limited by the Powers of Congress in the Constitution Article I section 8 enumerated powers?]U.S. Constitution - Article 3 Section 2
Article 3 - The Judicial Branch
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.The parching of words and letters conveys no powers - it is simply argument to confuse the issue and to usurp in the clouds created - The M & M cases have no foundation in the Constitution so they are null void as if they never existed at all and all decisions that are not supported in the enumerated powers are also null void. Would you not agree that if usurpation is allowed to stand then there is no RULE - BY - LAW and our liberties and freedoms are grants from the Courts and the Federal government. Would you not agree that the FF&R surly did not intend that to be the case?
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Civil Rights Cases
109 US 3, 3 S. Ct. 18, 27 L. Ed. 835 - Supreme Court, 1883 - law.cornell.edu... The court adjudges, I think erroneously, that Congress is without power, under either the
Thirteenth or Fourteenth Amendment, to establish such regulations, and that the first and second
sections of the statute are, in all their parts, unconstitutional and void. ...Fitzpatrick v. Bitzer
427 US 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 - Supreme Court, 1976 - Google Scholar... In the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under §
5 of the Fourteenth Amendment, authorized federal courts to award money damages in favor
of a private individual against a state government found to have subjected that person to ...Robinson v. California
370 US 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 - Supreme Court, 1962 - Google Scholar... [6] We noted probable jurisdiction of this appeal, 368 US 918, because it squarely
presents the issue whether the statute as construed by the California courts in this case
is repugnant to the Fourteenth Amendment of the Constitution. ...Slaughter-House Cases
83 US 36, 21 L. Ed. 394, 83 S. Ct. 36 - Supreme Court, 1873 - Google Scholar... 57 Mr. Justice MILLER, now, April 14th, 1873, delivered the opinion of the court. ... courts, that the
grant of privileges in the charter of defendant, which they were contesting, was a violation of the
most important provisions of the thirteenth and fourteenth articles of amendment of the ...Shelley v. Kraemer
334 US 1, 68 S. Ct. 836, 92 L. Ed. 1161 - Supreme Court, 1948 - Google Scholar... On appeal, the Supreme Court of Michigan affirmed, deciding adversely to petitioners' contentions
that they had been denied rights protected by the Fourteenth Amendment. ... That Amendment erects
no shield against merely private conduct, however discriminatory or wrongful. ...Lochner v. New York
198 US 45, 25 S. Ct. 539, 49 L. Ed. 937 - Supreme Court, 1905 - Google Scholar... state police regulations which were enacted in good faith, and had appropriate and direct
connection with that protection to life, health, and property which each State owes to her citizens."
So in Barbier v. Connolly, 113 US 27: "But neither the [14th] Amendment — broad and ...Bolling v. Sharpe
347 US 497, 74 S. Ct. 693, 98 L. Ed. 884 - Supreme Court, 1954 - Google Scholar... This case challenges the validity of segregation in the public schools of the District
of Columbia. The petitioners, minors of the Negro race, allege that such segregation
deprives them of due process of law under the Fifth Amendment. ...Mapp v. Ohio
367 US 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 - Supreme Court, 1961 - Google Scholar... or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence
at trial, citing Wolf v. Colorado, 338 US 25 (1949), in which this Court did indeed hold "that in
a prosecution in a State court for a State crime the Fourteenth Amendment 646 does not ...Benton v. Maryland
395 US 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 - Supreme Court, 1969 - Google Scholar... "(1) Is the double jeopardy clause of the Fifth Amendment applicable to the States through the
Fourteenth Amendment? ... [13] In this country, it is presently embodied in the Fifth Amendment to
the Federal Constitution and in the constitution or common law of every State. ...Brown v. Board of Education
347 US 483, 74 S. Ct. 686, 98 L. Ed. 873 - Supreme Court, 1954 - Google Scholar... This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under
the Fourteenth Amendment. ... [3]. 489 Reargument was largely devoted to the circumstances
surrounding the adoption of the Fourteenth Amendment in 1868. ...
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Constitutional Amendments
Amending the United States Constitution is no small task. This page will detail theamendment procedure as spelled out in the Constitution, and will also list some of theAmendments that have not been passed, as well as give a list of some amendments proposed in Congress during several of the past sessions.The Amendment Process, "Informal Amendment", Popular Amendment, History behind the ratified Amendments, Ratification dates of the ratified Amendments, The Failed Amendments, Some Proposed Amendments
There are essentially two ways spelled out in the Constitution for how to propose an amendment. One has never been used.The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and22nd).The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by simple majority.The Constitution, then, spells out four paths for an amendment:- Proposal by convention of states, ratification by state conventions (never used)
- Proposal by convention of states, ratification by state legislatures (never used)
- Proposal by Congress, ratification by state conventions (used once)
- Proposal by Congress, ratification by state legislatures (used all other times)
It is interesting to note that at no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 US 378 [1798]):The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.
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The Constitutional Amendment Process
The authority to amend the Constitution of the United Statesis derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment along with three young scholars. On May 18, 1992, the Archivist performed the duties of the certifying official for the first time to recognize the ratification of the 27th Amendment, and the Director of the Federal Register signed the certification as a witness.
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- David the trick is to use pre designed standard package reactors for they could be in place fairly quickly if the Approval process is made standard. 500 could be in operation in less than five years if the government would get out of the way - they have studied the industry to death - The entire globe has had two major issues - one caused by a know bad reactor design [Chernobyl] and then the one in Japan caused by a 7+ earthquake event followed by a tsunami followed by mistakes in corrective actions.These two events cost less lives than the global Coal mining industry and the use of coal plants. So, now on to the proposal -plants would generate power 24/7/365 sell power in the high demand day time to new manufacturing plants mining metals and making pumps and pipes to take the water to the dry area of the west and southwest - then at night when the demand goes down the desalination plant goes into operation using the total output of energy. This make the power generator run at peak efficiency - it can actually pay for itself selling water at some point in time. Never happen for we are just not that smart.
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Article V: Congress, Conventions, and Constitutional Amendments
By Matthew Spalding, Ph.D. and Trent England
February 10, 2011SHARE
Advocates of a “living” Constitution argue that the Founders' Constitution is hopelessly outdated and unable to grow and adapt to the times. The amendment procedure detailed in Article V belies such claims. As Madison explains in The Federalist, the amendment procedure allows subsequent generations to correct errors and make whatever "useful alterations will be suggested by experience." Yet at the same time, the difficulty of constitutional amendment prevents the Constitution from being deprived "of that veneration, which time bestows on everything, and without which the wisest and freest governments would not possess the requisite stability." By design, the amendment process requires extensive deliberation and ensures that amendments are the settled opinion of the American people. To date, as was expected, every amendment to the Constitution has been proposed through Congress before being ratified by the states. Although there have been several attempts to call an Article V amending convention—some of which have driven Congress to act—the extensive unknowns and significant risks involved in that uncharted option make congressional proposal of amendments abundantly more prudent and the most viable method to achieve serious constitutional reform. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.The process of amendment developed with the emergence of written constitutions that established popular government. The charters granted by William Penn in 1682 and 1683 provided for amending, as did eight of the state constitutions in effect in 1787. Three state constitutions provided for amendment through the legislature, and the other five gave the power to specially elected conventions.The Articles of Confederation provided for amendments to be proposed by Congress and ratified by the unanimous vote of all thirteen state legislatures. This proved to be a major flaw in the Articles, as it created an insuperable obstacle to constitutional reform. The amendment process in the Constitution, as James Madison explained in The Federalist No. 43, was meant to establish a balance between the excesses of constant change and inflexibility: “It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.”In his Commentaries on the Constitution of the United States, Justice Joseph Story wrote that a government that providesIn its final form, Article V creates two ways to propose amendments to the Constitution: through Congress or by a special convention called by the states for the purpose of proposing amendments. In either case, the proposed amendment or amendments must then be ratified by the states, either (as determined by Congress) by state legislatures or by ratifying conventions in the states.The Virginia Plan introduced at the start of the Constitutional Convention called for amendment “whensoever it shall seem necessary.” The Committee of Detail proposed a process whereby Congress would call for a constitutional convention on the request of two-thirds of the state legislatures. George Mason feared this method was insufficient to protect the states, while Alexander Hamilton thought that Congress should be able to propose amendments independent of the states. Madison (as recorded in hisNotes of Debates in the Federal Convention of 1787) thought the vagueness of an amendment convention sufficiently problematic to reject the provision: “How was a Convention to be formed? By what rule decide? What the force of its acts?” After further debate, the delegates passed language proposed by Madison (and seconded by Alexander Hamilton) that the national legislature shall propose amendments when two-thirds of each House deems it necessary, or on the application of two-thirds of the state legislatures. Proposed amendments were to be ratified by three-fourths of the states in their legislatures or by state convention.The Constitutional Convention made two specific exceptions to the Amendments Clause, concerning the slave trade (Article V, Clause 2) and equal state suffrage in the Senate (Article V, Clause 2), but defeated a motion to prevent amendments that affected internal police powers in the states.Just before the end of the Convention, George Mason objected that the amendment proposal would allow Congress to block as well as propose amendments, and the method was changed again to require Congress to call a convention to propose amendments on the application of two-thirds of the states. Madison did not see why Congress would not be equally bound by two-thirds of the states directly proposing amendments as opposed to the same number calling for an amendments convention, especially when the proposed Article V convention process left so many unresolved questions. In the end, Madison did not object to including an amendments convention “except only that difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.”The careful consideration of the amending power demonstrates that the Framers would have been astonished by more recent theories claiming the right of the Supreme Court to superintend a “living” or “evolving” Constitution outside of the amendment process. More significantly, the double supermajority requirements—two-thirds of both Houses of Congress and three-quarters of the states—create extensive deliberation and stability in the amendment process and restrain factions and special interests. It helps keep the Constitution as a “constitution,” and not an assemblage of legislative enactments. Most importantly, it also roots the amending process in the Founders’ unique concept of structural federalism based on the dual sovereignty of the state and national governments.The advantage of the Amendments Clause was immediately apparent. The lack of a bill of rights—the Convention had considered and rejected this option—became a rallying cry during the ratification debate. Partly to head off an attempt to call for another general convention or an open-ended amendments convention, but mostly to legitimize the Constitution among patriots who were Anti-Federalists, the advocates of the Constitution (led by Madison) agreed to add amendments in the first session of Congress. North Carolina and Rhode Island acceded to the Constitution, and further disagreements were cabined within the constitutional structure.Madison had wanted the amendments that became the Bill of Rights to be interwoven into the relevant sections of the Constitution. More for stylistic rather than substantive reasons, though, Congress proposed (and set the precedent for) amendments appended separately at the end of the document. Some have argued that this method makes amendments more susceptible to an activist interpretation than they would be otherwise.As Madison predicted, the difficulties inherent in an Article V amendments convention have prevented its use, though some state applications (depending on how those applications are written and counted, an additional controversy in the Article V convention process) have come within one or two states of the requisite two-thirds. Precisely because of the potential chaos of the process, the very threat of an amendments convention can be used to pressure Congress to act rather than risk an amendments convention. The movement favoring direct election of Senators was just one state away from an amending convention when Congress proposed the Seventeenth Amendment in 1911. Most recently, in the 1980s, state applications for a convention to propose a balanced budget amendment led Congress to vote on such an amendment and pass the Gramm-Rudman-Hollings Act (later declared unconstitutional in part by the Supreme Court) requiring the federal budget to be balanced.There have been hundreds of applications for an amending convention over the years from virtually every state. Because no amending convention has ever occurred, an important question is whether such a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amending conventions in the nineteenth century were general, the modern trend is to call (and thus count applications) for conventions limited to considering a single, specific amendment. Some scholars maintain that such attempts violate the very mechanism created by Article V: the text says that upon application of the states Congress “shall call a Convention for proposing Amendments,” not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention). Indeed, it is not at all clear as a matter of constitutional construction (and doubtful in principle) that the power of two-thirds of the states to issue applications for a convention restricts, supersedes, or overrides the power ofall the states assembled in that convention to propose amendments to the Constitution. Other questions include the many practical aspects of how an amending convention would operate and whether any aspects of such a convention (including going beyond its instructions) would be subject to judicial review.The Federalist Papers, unfortunately, offer no guidance on this matter. Madison refers to amendment conventions in Federalist No. 43 only in general terms, noting that Article V “equally enables the general and the State governments to originate the amendment of errors.” And in Federalist No. 85, while Hamilton discusses how Congress cannot limit the scope of an Article V convention, he says nothing as to whether states can or cannot do so.The requirement that amendments proposed by such a convention must be ratified by three-fourths of the states is a significant limit on the process and likely prevents a true “runaway” convention from fundamentally altering the Constitution. Serious scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V. Nevertheless, the lack of precedent, extensive unknowns, and considerable risks of an Article V amendments convention should bring sober pause to advocates of legitimate constitutional reform contemplating this avenue.While a valid method created and available under the Constitution, “a Convention for proposing Amendments” has never been viewed as just another tool for reform but has become ever more so an ultimate option to be deployed only in extremis for the sake of maintaining the Constitution. Hence, the only time Madison pointed to an amendments convention was during the Nullification Crisis of 1832 as a last-ditch effort to prevent the wholly unacceptable and unconstitutional alternative of nullification and secession that then threatened the continued existence of the United States. Likewise, when Abraham Lincoln looked to constitutional reforms to resolve disputed questions in the midst of the Civil War, he noted that “under existing circumstances” the convention mode “seems preferable” precisely because it “allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose.” Yet when the immediate crisis was over, Lincoln strongly advocated what became the Thirteenth Amendment by congressional proposal and did not pursue an amending convention, despite the amendment’s initial failure in the House of Representatives. It should be noted that in both cases an amendments convention was understood to be free to propose whatever amendments thought necessary to address the problems at issue.Much greater certainty—not to mention extensive historical experience and proven political viability—exists as to the power of Congress to propose amendments. Since 1789, well over 5,000 bills proposing to amend the Constitution have been introduced in Congress; thirty-three amendments have been sent to the states for ratification. Of those sent to the states, two have been defeated, four are still pending, and twenty-seven have been ratified. Because of the national distribution of representation in Congress, most amendment proposals are defeated by a lack of general support and those amendments that are proposed to the states by Congress are generally likely to be ratified.In a challenge to the Eleventh Amendment, the Supreme Court waved aside the suggestion that amendments proposed by Congress must be submitted to the President according to the Presentment Clause (Article I, Section 7, Clause 2). Hollingsworth v. Virginia (1798). In the National Prohibition Cases(1920), the Court held that the “two-thirds of both Houses” requirement applies to a present quorum, not the total membership of each body. One year later, in Dillon v. Gloss (1921), the Court allowed Congress, when proposing an amendment, to set a reasonable time limit for ratification by the states.Since 1924, no amendment has been proposed without a ratification time limit, although the Twenty-seventh Amendment, proposed by Madison in the First Congress more than two hundred years ago, was finally ratified in 1992. Regardless of how an amendment is proposed, Article V gives Congress authority to direct the mode of ratification. United States v. Sprague (1931). Of the ratified amendments, all but the Twenty-first Amendment, which was ratified by state conventions, have been ratified by state legislatures. In Hawke v. Smith (1920), the Court struck down an attempt by Ohio to make that state’s ratification of constitutional amendments subject to a vote of the people, holding that where Article V gives authority to state legislatures, these bodies are exercising a federal function.Although some scholars have asserted that certain kinds of constitutional amendments might be “unconstitutional,” actual substantive challenges to amendments have so far been unsuccessful. National Prohibition Cases (1920); Leser v. Garnett (1922). The Supreme Court’s consideration of procedural challenges thus far does not extend beyond the 1939 decision of Coleman v. Miller, dealing with Kansas’s ratification of a child labor amendment. The Court split on whether state ratification disputes are nonjusticiable political questions, but then held that Congress, “in controlling the promulgation of the adoption of constitutional amendment[s],” should have final authority over ratification controversies.In the end, the Framers believed that the amendment process would protect the Constitution from undue change at the same time that it would strengthen the authority of the Constitution with the people by allowing its deliberate reform while elevating it above immediate political passions. “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government,” George Washington wrote in his Farewell Address of 1796. “But the Constitution which at any time exists, ‘till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all.”Matthew Spalding, Ph.D., is the Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation and the Executive Editor of The Heritage Guide to the Constitution, in which a version of this essay was originally published. Trent England is the director of constitutional studies at the Evergreen Freedom Foundation.
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- How did we get in this mess.
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