By Paul Finkelman
It is not easy to amend the United States Constitution. The Constitution provides two methods. Two-thirds of the states can petition Congress to call a Constitutional Convention. The work of that convention would then have to be ratified by three-quarters of the states. This method has never been used. Alternatively, Congress can propose amendments to the states. Each house of Congress must support the
amendment by a two-thirds vote and three-quarters of the states must then ratify the
amendment. This is a cumbersome process that rarely happens.
Since 1789 members of Congress have proposed more than 10,000 amendments. Most die in committee, and only rarely does Congress even vote on them. It is even more rare for Congress to approve an amendment and send it to the states. Since the adoption of the Bill of Rights in 1791 - our first 10
amendments - Congress has sent only 21 amendments to the states, and only 16 of these have been ratified. (Our 27th
Amendment - dealing with congressional salaries - was sent to the states in 1789 with the rest of the Bill of Rights, but not ratified until 1992).
Thus, since 1791 there have been only 17 amendments to the U.S. Constitution. To put this in some perspective, since its adoption in 1851, there have been more than 60 changes to the Ohio Constitution. But compared to the home state of our president, Ohio is a model of constitutional restraint. Since its adoption in 1876 the Texas Constitution has been amended 432 times. Texas voters have also rejected another 174 amendments proposed by the state legislature.
Why are there so few amendments to the U.S. Constitution?
First, the framers of the Constitution made the process difficult. They believed a Constitution should endure - what Chief Justice Marshall would later call a Constitution "for the ages" - and thus they did not want it changed for light or transient reasons. They understood that stability was important for the new nation.
The Constitution contained a number of important compromises and bargains. The most important was over slavery, with an implicit guarantee that the national government would never have the power to interfere with the right of the states to keep slaves. Thus, the framers gave the South - or the North - a veto over any fundamental constitutional change. By requiring that three-fourths of the states ratify an amendment, the Constitution effectively gives the different regions of the nation a veto over constitutional change. Had 11 slave states not seceded, we could never have ratified the 13th Amendment ending slavery (1865), the 14th, making black people citizens of the nation (1868), and the 15th, prohibiting racial discrimination in voting (1870).
Because of the difficulty of changing the Constitution there have been few changes. Most fall into two categories. Some deal with structural issues, such as when the president should take office (we moved it from March to January as communication and travel became more rapid) or how to elect U.S. senators (in the original Constitution the state legislatures chose them; now the people do by direct election). Most other amendments have been to expand individual liberties, so through the
amendment process we ended slavery, guaranteed the right to vote to blacks, women, poor people and 18-year-olds. The one exception to the expansion of liberty was the Prohibition amendment, and that, significantly, is the only amendment to have ever been repealed by another amendment.
The proposed amendment to ban same-sex marriage runs counter to our constitutional history because it would be the first amendment to deny a right to an identifiable group of people - a minority.
In the past we have not always given equal rights to everyone - slaves did not have equal rights; women could not vote; before the poll tax amendment, the states could make it more difficult for poor people to vote. But this would be the first time in our history that we would change the Constitution to specifically say that a small group of people cannot have a certain right that all others have.
The amendment would also run counter to our tradition of letting the states expand liberty for their own citizens. Some states ended slavery before the Civil War; some states allowed blacks to vote before the 15th Amendment, and some states allowed women to vote before the 19th Amendment. That kind of experimentation has been good for America and made our Constitution stronger and more stable.
The proposed marriage amendment would be a unique and dangerous reversal of course in our two centuries of constitutional growth.
Paul Finkelman is the Chapman Distinguished Professor at the University of Tulsa College of Law. He is the author of more than 20 books, including A March of Liberty: A Constitutional History of the United States. Before moving to Tulsa, he was the John F. Seiberling Professor of Constitutional Law at the University of Akron School of Law.
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