AMENDING THE CONSTITUTION
In a typical Congress there are between 50 and 100 proposals
to amend the Constitution. Some of the proposed amendments
refl ect efforts to overturn particularly controversial Supreme
Court decisions. Recent examples include amendments to pro-
hibit abortion, guarantee the right to obtain an abortion, make fl ag
desecration a crime, and permit prayer in public school. Some
amendments are designed to change the government’s basic
structure and process, such as proposals to replace the electoral
college with a direct popular vote, choose presidential electors
at the congressional-district level, repeal the Twenty-Second
Amendment (which limits presidents to two terms), require a
two-thirds congressional vote to raise taxes, impose term limits
on representatives and senators, or repeal the Sixteenth Amend-
ment (which permitted a federal income tax). And some pro-
posed amendments would guarantee specifi c benefi ts or create
new classes of constitutionally guaranteed rights like affordable
housing, quality health care, a clean environment, or full employ-
ment. The only thing that cannot be changed in the Constitution is
the equal apportionment of states’ votes in the Senate (two sena-
tors per state).a Anything short of that is fair game.
One controversial question concerning the amending pro-
cess is whether it should be used to address specifi c policy
issues such as term limits, balancing the federal budget, burn-
ing the fl ag, the Pledge of Allegiance, or whether a person
may be detained for not wearing a seatbelt. The only adopted
amendments that fall into this category are Prohibition (which
was subsequently repealed with another amendment) and the
long-delayed Twenty-Seventh Amendment regarding congres-
sional pay raises. The other amendments address broader pol-
icy concerns, expand or protect individual rights and liberties,
modify electoral laws and institutions, or address basic con-
cerns about the working of government. Constitutional scholar
Kathleen Sullivan is critical of efforts to alter the Constitution.
Constitutional principles should not, she concludes, be “up for
grabs” or politicized but should be slow to change; amend-
ments should be reserved for setting out the basic structure of
government and defi ning “a few fundamental political ideals.”b
The alternative perspective chides those who “treat the Con-
stitution like an untouchable religious text and the republic’s
founders as omniscient,” and maintains that “meaningful dem-
ocratic politics requires an aggressive constitutional politics.”c
Many of the recently proposed amendments (see Table 2.1) are
clearly policy related, thus many members of Congress view
amending the Constitution as a legitimate policy-making tool.
One policy area in the debate over the appropriateness of
policy-related constitutional amendments concerns gay mar-
riage. Many states have amended their constitutions to defi ne
marriage to exclude same-sex couples. Advocates of this view
are pushing for an amendment to the Constitution to defi ne
marriage the same way at the national level. Would you sup-
port such an amendment? Try to separate your view on the spe-
You Decide
cifi c issue, gay marriage, from your position on the question
of amending the Constitution. If you oppose gay marriage, is
it possible that the better path of action would be through the
state legislatures?Some people argue that the Constitution should not be used to make
policy, except for broader purposes such as expanding political
rights or protecting equality. The Eighteenth Amendment, ratifi ed
in 1919, prohibited the consumption of alcohol and is often upheld
as an example of a failed policy attempt. In this 1933 photo, a beer
distributor readies his fi rst shipment following ratifi cation of the
Twenty-First Amendment, which repealed Prohibition.Critical Thinking Questions
- What kinds of policies would you favor address-
ing through constitutional amendments? Do you
agree that amendments should be reserved for a
“few fundamental political ideas”—things like the
right to vote and the structure of government—or
that more frequent amendments are necessary for
“meaningful democratic politics”? - Do you support any of the amendments proposed
in Table 2.1? Choose one and explain why a consti-
tutional amendment is (or is not) the best way to
address the issue.
IS THE CONSTITUTION A “LIVING” DOCUMENT?| 45