Constitutional Amendment

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


See Also

  • Constitution
  • Federalism

Constitutional Amendment: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Constitutional Amendment. This part provides references, in relation to Constitutional Amendment, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Constitutional Amendment by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Constitutional Amendment and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Constitutional Amendment or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Constitutional Amendment and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Constitutional Amendment. Finding these decisions can be challenging. In many cases, researchers about Constitutional Amendment should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Constitutional Amendment when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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