Constitutional Amendment in the United States

A change in the content of the Constitution by adding an additional provision. A constitutional amendment can be pursued for many reasons, one of which is to reverse the effect of a Supreme Court decision. The process for amending the Constitution is set forth in Article V. It may be utilized in two ways. When two-thirds of both houses of Congress “shall deem it necessary,” they may propose amendments. All twenty-six amendments to the U.S. Constitution have been initiated this way. Article V also permits the calling of a constitutional convention “on the application of the legislatures of two-thirds of the several states.” For a proposed amendment to take effect, regardless of how it was initiated, it must secure the approval of the legislatures or specially called conventions of three-fourths of the states. Congress may determine which of these two modes of ratification is required and set any other rules for the ratification process. While all proposed changes to the Constitution have occurred by congressional resolution, it is possible that Congress may call a national constitutional convention to consider a balanced budget amendment if two-thirds of the states pass resolutions asking that such a convention be convened. A number of issues attend the convention approach, such as how delegates are to be selected and the scope of the convention’s authority once convened. Each of the fifty state constitutions contain provisions for amendment. Most of them require approval by the electorate in a referendum.

See Also

Court “Curbing” (Judicial Effects and Policies) Statutory Reversal (Judicial Effects and Policies).

Analysis and Relevance

When a constitutional amendment is used to reverse Supreme Court decisions, it may be used not only to achieve a different policy result, but to direct a political message to the Court as well. In this sense, the amendment process becomes a device of restraining, or “curbing,” the Supreme Court’s authority. To date, four amendments have been formally adopted to nullify decisions, although a number of others have been proposed. Section 1 of the Fourteenth Amendment, for example, reverses the portion of Dred Scott v. Sandford (19 Howard 393: 1857) that held that blacks were not citizens. The Twenty-sixth Amendment overturned Oregon v. Mitchell (400 U.S. 112: 1970) that had invalidated a congressional effort to lower the voting age to eighteen in state as well as federal elections. Similarly, the Eleventh Amendment prohibited suits by plaintiffs from one state against other states in federal courts. This directed reversal of Chisholm v. Georgia (2 Dallas 419: 1793). Finally, the Sixteenth Amendment restored federal power to enact an income tax previously denied in Pollock v. Farmers’ Loan & Trust Company (157 U.S. 429: 1895). The amendment process is exceedingly difficult, which may account for the infrequency of success. Nonetheless, amendments are often introduced in controversial policy areas such as legislative apportionment, school prayer, and abortion. Amendments can also be aimed at the Court’s procedures or the tenure of the justices. Amendments have been introduced, for example, that call for mandatory retirement at a certain age, such as 70 or 75, or that require extraordinary majorities when the Court strikes down a federal law. No such amendment has been adopted, but the efforts have directed political messages toward the Court nonetheless.

Notes and References

1. Definition of Constitutional Amendment from the American Law Dictionary, 1991, California

Concept of Constitutional Amendment

In the U.S., in the context of the U.S. Constitution and Federalism, Constitutional Amendment has the following meaning: A formal change to a constitution, following amendment processes spelled out in the constitution itself. (Source of this definition of Constitutional Amendment : University of Texas)

Constitutional Amendment

Constitutional Amendment Background

Resources

See Also

• Constitution
• Federalism