Amendment of the Constitution (AQA A-Level Politics): Revision Notes

Amendment of the Constitution

The US Constitution can be changed through both formal and informal processes. Understanding these mechanisms is essential for analysing how American government adapts to changing circumstances whilst maintaining constitutional stability.

Formal amendment process

The Founding Fathers deliberately created a rigorous process for amending the Constitution. This ensures that constitutional changes only occur when there is widespread agreement across the nation. The amendment process requires supermajority support at two distinct stages: proposal and ratification.

Proposing amendments

There are two routes for proposing constitutional amendments:

Route 1: Congressional proposal

• Requires a two-thirds majority in both the House of Representatives and the Senate
• This has been the method used for all 27 successful amendments to date

Route 2: Constitutional convention

• Requires two-thirds of state legislatures (34 states) to call for a national constitutional convention
• This method has never been successfully used
• The closest attempt occurred in 1992 when 32 states petitioned Congress for a balanced budget amendment, falling two states short of the threshold

Ratifying amendments

After an amendment is proposed, it must be ratified before becoming part of the Constitution. Again, two routes exist:

Route 1: State legislature ratification

• Three-quarters of state legislatures (38 states) must approve the amendment
• This has been used for all amendments except one

Route 2: State convention ratification

• Three-quarters of states must approve the amendment through special ratifying conventions
• This method was used only once, for the Twenty-First Amendment which repealed Prohibition

Key facts about constitutional amendments

Understanding the history of constitutional amendments helps illustrate how rarely formal changes occur and which issues have warranted constitutional protection.

Amendment statistics

• There have been 27 successful amendments since the Constitution was ratified in 1789
• The first 10 amendments, known collectively as the Bill of Rights, were ratified in 1791
• Only 25 amendments are currently active because the Twenty-First Amendment repealed the Eighteenth Amendment (Prohibition)
• The most recent amendment was ratified in 1992, concerning congressional salaries
• Six amendments have been passed by Congress but failed to achieve sufficient state ratifications, including the Equal Rights Amendment

Context and significance

Many amendments were passed in response to specific historical circumstances. For example, the Twenty-Second Amendment, which restricts presidents to two terms in office, was ratified in 1951 following Franklin D. Roosevelt's unprecedented four-term presidency. Roosevelt served for 13 years before dying in office in 1945.

Not all amendments carry equal weight. The Twenty-Third Amendment (1961) gave Washington, DC votes in the Electoral College—important for DC residents, but perhaps less significant than amendments that enfranchised women or abolished slavery.

Important amendments

Bill of Rights amendments (1791)

The first ten amendments protect fundamental individual liberties:

First Amendment: Protects freedom of religion, speech, the press and assembly. This forms the cornerstone of American civil liberties.

Second Amendment: Guarantees the right to bear arms. This remains one of the most controversial amendments in contemporary American politics.

Eighth Amendment: Prohibits "cruel and unusual" punishments. This has been interpreted to restrict capital punishment in certain circumstances.

Post-Bill of Rights amendments

Several later amendments fundamentally transformed American society:

Thirteenth Amendment (1865): Abolished slavery throughout the United States, passed following the Civil War.

Fourteenth Amendment (1868): Granted citizenship to formerly enslaved people and included the crucial "equal protection" and "due process" clauses, which have been used to extend civil rights protections.

Seventeenth Amendment (1913): Introduced direct election of senators by voters rather than state legislatures, enhancing democratic accountability.

Twenty-Sixth Amendment (1971): Lowered the minimum voting age from 21 to 18, passed during the Vietnam War when young people argued they should vote if they could be drafted.

Twenty-Seventh Amendment (1992): Specifies that congressional salary increases cannot take effect until after the next election. Originally proposed by James Madison for inclusion in the Bill of Rights, this amendment was only ratified over 200 years later. Scholar Richard Bernstein described it as "credible and unthreatening…modest, reasonable, and appropriate," which may explain why it succeeded when more significant proposals failed.

Debate: Should the Constitution be easier to amend?

The difficulty of amending the Constitution remains controversial.

Arguments that amendment is too difficult

Some scholars and politicians argue the high thresholds create problems. Very few amendments have been ratified recently—only 27 in over 200 years. The current Constitution contains provisions that many consider outdated, such as the Electoral College and the Second Amendment's approach to gun rights.

The complexity of passing amendments prevents the Constitution from being updated, especially regarding rights. While some groups like racial minorities receive explicit constitutional protection, others such as women and people with disabilities do not. This makes comprehensive rights protection almost impossible to achieve through formal amendment.

Critics also argue that too much informal amendment occurs through Supreme Court judgements from individuals who are unelected and unaccountable. Additionally, although states can theoretically initiate the formal amendment process under Article V, no national constitutional convention has ever been successfully held.

Arguments that current requirements are appropriate

Defenders of the current system argue that high thresholds ensure change only happens when there is wide consensus and broad agreement. Obsolete clauses can be repealed when necessary, as happened with Prohibition.

Some constitutional problems, such as the Electoral College, could be reformed without complete abolition. The Second Amendment is capable of sensible adjustment, including banning certain weapons or requiring background checks, without formal amendment.

The rights of groups not specifically mentioned in the Constitution can be equally well defended by federal and state laws. If constitutional amendments were much easier, determining which rights deserve constitutional protection would become complicated and controversial.

The Supreme Court often considers public opinion when reaching conclusions, thereby informally amending the Constitution to reflect contemporary values, such as with LGBTQ+ rights. The current amendment procedure allows for a federal dimension through state-initiated constitutional conventions, even if this provision has never been used.

Informal amendment through the Supreme Court

The Constitution is primarily updated through Supreme Court judgements rather than formal amendments. The Court has a crucial role in interpreting the Constitution via judicial review. Through this process, judges have "discovered" new meanings and rights within existing constitutional clauses.

Examples of informal amendments

The Supreme Court has informally amended the Constitution through landmark decisions including:

District of Columbia v Heller (2008): Established an explicit right to private gun ownership under the Second Amendment, moving beyond the amendment's reference to "a well regulated Militia."

Miranda v Arizona (1966): Created the "Miranda rights," requiring police to inform suspects of their right to remain silent and avoid self-incrimination.

Citizens United v Federal Election Commission (2010): Extended First Amendment rights to corporations and interest groups, allowing unlimited political spending.

Obergefell v Hodges (2015): Recognised the constitutional right to same-sex marriage, extending marriage equality to LGBTQ+ Americans.

Carpenter v United States (2018): Extended the right to privacy to mobile phone data, requiring warrants for law enforcement access to location information.

Debate over interpretation

Considerable debate exists regarding whether the framers' intentions can be discerned through judicial interpretation. Can we truly know what George Washington would think about gay rights or government collection of mobile phone data were he alive today?

Conservatives generally argue this is impossible and that such decisions should be left to legislatures, whether in individual states or in Washington, DC.

Liberals typically disagree and view the Constitution as a "living document," capable of being reinterpreted for a modern age.

The examples above demonstrate the applicability of an ancient document to technology and issues the Founding Fathers could never have envisaged. This flexibility allows the Constitution to remain relevant despite being over 230 years old.

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