- [Kim] Hey this is Kim from Khan Academy,
and today I'm learning about Article Five
of the U.S. Constitution,
which describes the Constitution's amendment process.
To learn more about Article Five,
I talked to two experts, Professor Michael Rappaport,
who is the Darling Foundation Professor
at the University of San Diego School of Law,
where he also serves as the Director of the Center
for the Study of Constitutional Originalism.
And Davis Strauss,
who's the Gerald Ratner Distinguished Service Professor
of Law at the University of Chicago Law School,
and author of The Living Constitution.
Professor Strauss, Article Five provides this process
for amending the Constitution.
Can you take us through that process a little bit?
How does it work?
- [Strauss] A quick description, the process is
it's really hard, it's really hard
to amend the Constitution.
There are actually a couple of different processes
that are laid out in Article Five,
but only one has ever been used.
An amendment starts in Congress,
and two thirds of each House of Congress,
two thirds of the House of Representatives
and two thirds of the Senate
has to approve the amendment.
And then it goes to the States.
And three quarters of the States
have to approve the amendment.
So you have to have really strong consensus
in order to get the constitution changed that way.
- [Kim] So Professor Rappaport,
take us through this process of amending the Constitution.
Why did the Framers set it up this way?
- [Rappaport] The Framers gave a good bit
of thought to coming up with an Amendment process
because they recognized that the Constitution
might need to be changed over time,
either because there were problems with it
that weren't anticipated,
or because circumstances or values changed.
So there are two steps to the amendment process.
For an amendment to go into the Constitution
to become part of the Constitution,
it has to be both proposed and ratified.
On the proposal side, the Congress can propose.
Alternatively, a proposal can come from
the action of the state legislatures.
So two thirds of the state legislatures say,
we'd like to have a Constitutional Convention
propose an amendment.
So there's two parts of that obviously.
The state legislatures have got to want it,
and then you get the calling
of a Constitutional Convention.
Okay, that's the proposal side.
There's also the ratification side,
which is a little bit simpler.
You need three quarters of the States
to ratify a Constitutional amendment,
and they can ratify it either through
the actions of the state legislatures,
or the actions of state conventions,
which are special bodies which would be elected
in order to decides one question,
whether or not to ratify
that proposed Constitutional amendment.
- [Kim] This is fascinating.
So I actually had no idea about the two thirds
of the state legislatures being able
to propose a Constitutional amendment.
How often does that happen?
- [Rappaport] It has never occurred
throughout our history, although a couple of times
there were actions taken to sort of move in that direction,
but we've never actually had a Constitutional Convention
that has proposed any amendments.
It's important to go into why the Framers
would've set up the system the way they did.
The most usual situation is for the Congress
to propose the Amendments
and that's happened in all of the 27 amendments
which have been ratified to become part of our Constitution.
But what happens if the Congress is the problem?
What happens if the Congress is doing,
is usurping power or they're standing in
the way of changes that are important,
or they need to be reformed.
You can't count on the Congress to wanna reform itself.
So what they did was to have this alternative mechanism
which would bypass the Congress.
And that alternative mechanism
was the Constitutional Convention.
So the state legislatures propose, apply for it,
and then the separate entity,
the Constitutional Convention, makes a proposal.
So they were quite explicit in discussing this,
that they wanted this as an alternative to the Congress.
- [Kim] So was this on purpose,
that they made it very difficult to amend the Constitution?
- [Strauss] Well it sure seems like it.
Now, of course we don't know back then
what they had in mind, whether they thought, well,
the House, the Senate, the States,
they'll sort of be all be run by the same kind of people
and they'll kind of agree on things.
Maybe they thought that.
We just don't know.
But whatever they were thinking,
what they gave us was a very difficult process
to get through.
- [Kim] So how long was it from the period
when the Constitution was first ratified
to the First Amendment to the Constitution
beyond the Bill of Rights?
- [Rappaport] Okay, so the first 10 amendments
were ratified in 1791.
And then just a mere three years later,
we had the Eleventh Amendment.
- [Strauss] It was the Eleventh Amendment in 1798
to correct really kind of a technical problem
that the Supreme Court did something
that the Framers really didn't anticipate it would do,
didn't want it to do,
and the Eleventh Amendment was adopted to correct that.
The Twelfth Amendment was adopted in 1804
after the really kind of a disaster in the election of 1800,
when there was a tie in the Electoral College.
The Framers had not foreseen the rise of political parties
and political parties made the system for electing
the President they had given us very difficult to work with.
But then there was nothing.
That was 1804.
Then there was nothing until after the Civil War.
And after the Civil War, there were three amendments,
then nothing again really until the Progressive Era
in the early 20th Century,
when there were again a bunch of amendments.
And then after then, things had sort of tailed off.
So we really see these kind of, as I said,
these kind of waves in our history.
- [Kim] What do you think brings those waves on?
Why are there some eras when there are lots
of Constitutional amendments and other eras
when there's nothing?
- [Strauss] Well Kim, here I'm gonna say something
that I think some people will disagree with
but I think it's right and that is that,
I don't think the process of amending the Constitution
has really been the way we actually change it.
I think what happens is just because
the amendment process is so difficult,
we've worked out other ways of changing things.
And so amendments come along sometimes
because a change has already happened
and the people decide, well let's put it in the Constitution
just so we can kinda have official recognition of it.
But a lot of times changes happen
and they are a little bit too controversial
to get into the Constitution,
but they seem pretty solid and pretty secure
so we just don't, I guess it's fair to say,
don't bother to amend the Constitution
or don't wanna go through the process
of amending the Constitution.
- [Rappaport] Very often people's values may change
or they may differ from what's in the Constitution
and it may take a time or circumstances may finally
occur that crystallize this desire
to change the Constitution,
and all of a sudden the opportunity is there
and people can suddenly pass a Constitutional amendment.
It's only gonna occur during certain circumstances,
especially when there's strong support for it.
- [Kim] Very interesting, yeah.
So it's unlikely that we're gonna have
a Constitutional amendment any time in the near future.
When was the last Constitutional amendment?
- [Rappaport] So the simple answer to that was in 1971,
we got the 26th Amendment,
that was both proposed and then remarkably,
it's an all time record,
proposed and ratified in three months and eight days.
And that was the amendment that guaranteed
the right to vote of 18 year olds.
- [Kim] Ah, right.
So it's sort of as a response to the Vietnam War.
- [Rappaport] Yes, yes.
But there actually has been one additional amendment,
the 27th Amendment, right?
So why isn't that the most recent one?
Well here's the funny thing about it.
The 27th Amendment was proposed
as part of the original Bill of Rights in 1789.
So this amendment was proposed in 1789,
ratified in 1992, so it took 202 years.
- [Kim] Interesting.
And what's the 27th Amendment about?
- [Strauss] That has to do
with Congressional salary increases.
It basically says if Congress wants to raise its own salary,
the increase can't take effect until the next election.
So it basically gives the voters a chance to say,
hey, we don't like what you did.
We're gonna vote you out of office
for increasing your salary.
- [Kim] So one thing that strikes me about Article Five
and just the fact that the Founders included
an amendment process altogether,
it seems very humble and farsighted
to include a way for the document itself to evolve,
in a way.
Do you think that the Framers approached
the Constitution with the idea that there were things
in the future that they just wouldn't be able to anticipate?
- [Strauss] They had before them
and were acutely aware of the history
in which efforts to establish governments had failed
and they were really trying to work with that
and make sure they didn't do the same thing.
So they knew what a hard job they were embarking on.
And they made it clear,
there's a famous passage in which James Madison said,
look, we know a lot of these provisions
that we're writing in the Constitution,
their meaning is unclear
and their meaning will have to be,
his phrase was liquidated.
Which is to say, people have to figure out
what this means because we know what we're giving you
is unclear in some ways.
So yes, absolutely.
They knew there were things
that they could not anticipate.
The Framers themselves weren't in agreement
on what freedom of speech means.
Some of them enacted, voted for and got into,
got enacted laws that restricted speech
in ways that we would find intolerable today.
We'd say they violate the First Amendment,
but here you had some of the guys
who drafted the First Amendment voting for those laws.
- [Kim] So near the end of Article Five,
there's this kind of long-winded clause that says,
no amendment which may be made prior to the year 1808
shall in any manner affect the first and fourth clauses
in the Ninth Section of the first Article.
Now, if I'm cross-referencing this correctly,
what they're really saying here is,
you can't make any amendments about slavery.
So why is this here
and why are they talking around it so obliquely?
- [Rappaport] The interesting thing about this
is what did they do?
They basically said, for 20 years,
there's not gonna be any amendments
that are going to speak to the slave trade.
And the Constitution is very, let us say, shy about using
the term slavery or referring to slavery.
It actually never actually refers to the term slave.
There's a variety of thoughts about what was going on,
but one very common view about this
is that the Constitution was sort
of a little but embarrassed.
That the Framers were a little bit embarrassed,
or at least some of the Framers were embarrassed about it.
And so they didn't wanna make reference
to it too explicitly.
- [Strauss] They might've been a little bit worried
about what the verdict of history would be.
So they knew on some level the sort of demorality of slavery
but there it is right there in Article Five
and there are other places in the Constitution too
where they don't use the word,
but what they're doing is protecting slavery.
Now they did add these amendments to the Constitution
about slavery and about, as you say,
equal citizenship and voting.
But the 14th Amendment providing equal citizenship,
that was pretty much nullified in most respects
for a large part of our history.
States found a way to get around that.
The 15th Amendment was also something
that was just not very effective
in preventing African Americans from being denied the vote.
And yes, there are provisions in the Constitution
that are there and you can evoke them
and you can rely on them,
but if you just look at the text of the Constitution,
I think you'd get a misleading impression
about how the Constitution in
our history has actually worked.
- [Kim] Now this is a very good point
because I think one of the hardest things for students
of U.S. history to understand is,
how is it possible that after the 14th Amendment
was passed, things like Jim Crow happened.
And I guess the answer is,
the Constitution is only enforced if it's enforced.
- [Strauss] Kim, that's exactly right.
It's words on a page.
You know that the text is fine.
It can say all the right things,
but the institutions and the popular will
have to be in place to make something of those fine words.
- [Kim] Interesting.
So how do you think our government might be different
if the Constitution didn't include this amendment process?
- [Strauss] I don't think it would've been that different,
just because Article Five gives us such
a hard process to go through.
Just because it's so hard to amend the Constitution.
We figured out other ways to change
the Constitution in practice,
even if the words on the page are the same.
And I think if there were no Article Five,
we would've found a way to get to where
we wanted to get to as a country.
By those means, by legislation, by Presidential action,
by Supreme Court decision
and just by the people in their lives saying,
you know, we need to go in this direction.
We need to go, say, in the direction of women's equality.
And by the way,
there's no amendment giving women equal rights either,
but that's where we've gotten to
and I think that would've been the pattern
if there were no formal amendment process.
- [Rappaport] There's a second way
in which you could have Constitutional change,
which is, you could simply say,
alright, this Constitution was pretty good for a while.
It's now outlived its usefulness.
Let's have a new Constitution.
That would seem like a very radical big thing to do.
No one, virtually no one proposes that at the Federal level.
But in the States, lots of States
have changed their Constitutions.
Not simply passed a Constitutional Amendment
but just gotten rid of the whole old Constitution
and adopted a new one.
That's happened many times.
And so if we didn't have a Constitutional amendment process,
it's quite possible that that's exactly
what we would've seen at the Federal level.
- [Kim] This is really fascinating
because we really think a lot
about what the Framers intended for certain amendments,
for example, Freedom of Speech, Freedom of Religion.
What did they really mean by those things?
But if we had just kind of, every now and again,
said, okay we're done with that,
let's do a new Constitution.
We wouldn't necessarily have that debate.
We'd just say, okay this is what we meant at the time.
- [Rappaport] Famously Thomas Jefferson said oh,
it's really not right to have a Constitution
that's gonna continue over time
and bind future generations.
And so we aught to have a new Constitution every 19 years
when there's a new generation.
And his close friend, James Madison,
had to disagree with him and basically said,
look I understand why you're saying that,
but you also have to realize the incredible disruption
that would cause every 20 years.
People wouldn't be able to rely on the existing rights
that are in the Constitution
because they would know in a certain period of time,
new ones would be enacted.
We had that debate.
Madison won in the sense that the U.S. Constitution
is supposed to last for a long term period.
There's no 20 year limit on it.
And one of the things that's been beneficial
for the United States as a result of that,
is that we've inherited these Constitutional rights
that people have a lot of reverence for.
- [Kim] So we've learned that there are two ways
to amend the Constitution.
Through Congress, or through a special
Constitutional Convention called by the States.
Either way, adding an amendment to the Constitution
is really difficult to do,
so much so that the American people have only
in special circumstances used a Constitutional amendment
to effect social or political change.
To learn more about Article Five,
visit the National Constitution Center's
interactive Constitution and Khan Academy's resources
on U.S. Government and politics.