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♪♪Music♪♪
This lecture is entitled change is a comin
maybe.
And what I want to talk with you about during this lecture is the
amendment process to the Constitution.
So there are 27 amendments to our Constitution and if that
number seems small, it's not surprising.
The amendment process is laid out in article 5 of the
Constitution is a very, very high bar to pass.
¾ of state legislature need to approve an amendment that is the
product either of Congress or a national convention.
That is an option that we have that we've never utilized.
Our 27 amendments have come from proposals either from states or
from Congress.
The amendment process then because it requires ¾ of
approval from the states is what we call a super majoritarian
rather than a majoritarian process and because of this many
amendments never see the light of day.
Every congress that goes by every year sees lots and lots of
amendments put forward but they never pass.
Similarly every single congress that goes by sees many
amendments initiated from the state level for Congressional
approval that never ever see the light of day like with much
legislation that never lives or comes into being amendments
very, very rarely indeed only 27 times and if we factor in
amendments that repealed other amendments that came before it
the number is even smaller.
But never the less there are some important and really
interesting facts about the amendment process that we should
take into consideration.
Originally and this is really interesting considering the fact
the amendment process is so difficult.
The founders actually thought that this process requiring the
super majoritarian amount of vote to pass an amendment it was
actually more democratic than we had seen so far.
We have to remember that America's first Constitution was
the articles of Confederation and for over a decade that was
our governing document but to amend that document you needed
unanimous approval of the states.
So reducing that bar to ¾ from 100% approval was in the mind of
the founders, a very democratic move in a way in their minds to
make the amendment process easier.
The other really interesting thing about amendments is that
while there are 27 of them they weren't all passed at the same
time as you can imagine.
In fact, most amendments were passed in clusters at
identifiable periods in American history.
We can learn something from that as well.
What we know of as the Bill of Rights, the first 10 amendments
to the Constitution were actually two things the very
first Congress did.
The very first Congress, the first Congress.
One of the two things they did was set up a court system as
Professor Robertson said yesterday.
The other thing they did though was pass the Bill of Rights or
vote on the Bill of Rights and ¾ of the states immediately
approved and those became the fist 10 amendments to the
Constitution and not very long after the Bill of Rights was
passed in this identifiable period of American political
history, the 11th and 12th amendments were passed.
The 11th amendment provided that states, gave states what we call
state sovereign immunity so citizens of one state can not
sue another state under many circumstances and the 12th
amendment to the Constitution came not soon after that which
amended the electoral college process which will be a subject
of another IACH podcast very soon.
And we didn't see any amendments really from the founders own
generation up until the end of the Civil War when we see a new
cluster of amendments.
These were what we call the Civil War reconstruction
amendments, the 13th, 14th and 15th amendments.
All in reaction to the terrible turmoil of the Civil War.
The 13th amendment of course makes slavery unconstitutional.
The 14th amendment does lots of things including making people
citizens and as we said in another podcast, it also created
new requirements or new prohibitions.
I should say new prohibitions against states, saying that
states cannot deny you privileges or immunities.
States cannot deny you the equal protection of the law.
States cannot take away your life, liberty or property
without due process of the law.
We also saw clusters of amendments during the
progressive or populist movement in the United States dealing
with voting and dealing with actually changing the way we
vote for Senators.
It was in 1913 that the 17th amendment was passed provided
for direct election of Senators.
Up until 1913 in the United States we did not directly elect
our Senators.
Our Senators were chosen by our state legislative bodies and we
also saw a cluster of amendments in the 1960's dealing with
voting especially in reaction to two significant in the south of
the United States.
One was racial discrimination in voting and the other was this
increasing divide in the United States between rural and urban
voters so the Constitution was amended to provide or to make
sure that changing demographics changing notions of racial
equality where things that were protected in the franchise in
voting.
Another interesting thing about the amendments, there's only ne
amendment, the 18th, the 18th, which has been repealed by a
subsequent amendment.
The 18th amendment outlawed drinking and the 21st amendment
repealed the 18th amendment so that's the only amendment that
was ever that is an amendment that is not saying anything
positive in a sense not putting some kind of idea forward or
changing some kind of process or creating a new kind of
governmental process.
It's simply there to repeal an earlier amendment and I would
certainly raise a metaphorical glass to the 21st amendment.
But here, that's a very interesting amendment and it
actually reduces the amount of substantives amendments to the
Constitution to 26 then so there's even fewer than 27
amendments in terms of an amendment that put something
some substantive idea forward or amends a process or creates a
new kind of political process.
Something else I think we can see here with prohibition in the
18th amendment and then its repeal in the 21st amendment and
that with the exception of the 18th amendment, which prohibited
alcohol, all of the other amendments for the most part are
procedural amendments.
They deal with procedural issues.
We're going to change the way the electoral college works in
the 12th amendment for example so we don't make two votes on
election days for President and Vice President we vote for one
ticket for example.
That's the procedural amendment, right?
The amendment that says that you only have to be 18 or those 18
and older can vote.
It's a procedural amendment but prohibition was a moral
amendment and some scholars including myself argue that's
maybe not the best thing for amendments.
Now we only have in Social Science what we call an N of
one.
We only have one case to evaluate the argument but in the
case of an amendment that had a moral kind of intonation to it.
Right?
There's something morally wrong with the consumption of alcohol,
that's the only one that has been repealed.
So that's some food for thought with respect to the amendment
process.
Another interesting fact about the amendments, there is one
amendment that could never be passed.
There is one amendment, we could have an amendment that said we
all have to wear red shirts, now that might sound crazy but we
could have one but there is some, there is some, one thing
that the Constitution says that we could not do in amendment and
that is to decrease the representation that each state
has in the Senate.
Every state is equal in half of our legislative branch in the
Senate.
No matter how big California gets population wise it only
gets two Senators, no matter how small North Dakota gets
population wise it will always have two Senators.
So we could in a sense say would be or can be unconstitutional
constitutional amendment and that would be an amendment that
sought to change the equal representation of states and the
Senate.
But that wasn't the only time that there could have been an
unconstitutional constitutional amendment, the Constitution
provides that the slave trade could not be reduced or put out
of business in the United States until 1808, doesn't actually use
the word slaves, it talks about the trade or migration of
persons but it means slavery and the Constitution explicitly says
that we cannot pass a constitutional amendment before
1808 that prevented that trade or stopped it all together.
So we have had or you could imagine there could be could
have been two unconstitutional constitutional amendments, one
is mute now not only because the Constitution said we could pass
an amendment after 1808 or regular legislation and the
slave trade which we did but also because the 13th amendment
now prohibits slavery but there is still one amendment that we
could never pass, one unconstitutional amendment and
that would be the reduction of the amount of Senators or
representation at all for states and the Senate.
So other than these interesting factoids, which I hope, are more
interesting than, than kind of navel, navel-gazing about the
Constitution.
What can we learn about the amendment process?
What like so many other clauses in the Constitution almost every
one of them but especially the ones that seem more arcane and
difficult to understand, there are still important lessons that
we can garner from the amendment process just like there are
important lessons we can garner from other seemingly difficult
amendments.
As I've talked about before in other lectures but I'll explain
again now the Constitution was understood by the framers as a
higher law.
The kind of rules of the game that structure the political
world where ordinary politics happens, so we have ordinary
politics everyday that is dictated to and controlled by
this higher law.
Ordinary legislation, ordinary executive decisions, ordinary
judicial decisions ordinary agency decisions throughout
government on both the national and state level are happening
everyday but sometimes we have to ask whether they run afoul of
some kind of rule.
The Constitution is that, it's the higher law, it is the rules
of the game.
Now if we understand that to be the case and because of the
rules of the game trump any kind of ordinary legislation, if that
ordinary legislation or executive action runs afoul of
the rules of the game, that is, we have to understand that's
it's a very important notion almost a sacred kind of law that
shouldn't be easily changed and despite the fact that the
framers thought that by changing the amendment process from the
articles of Confederation from a 100% unanimous gratification to
75% or 3/4 .
They still and Madison says this many times thought the amendment
process was an awesome process, in other words it was such an
important process that it shouldn't be easy.
Ordinary legislation is easy relative to the amendment
process, ordinary legislation simply is a majority vote, okay?
50.1% that's sometimes easy and more often than not easy to get
but changing the higher law, changing the rules of the game
should be something that does have a high bar to it after all
it is a higher law.
Thank you.
(Applause) (Music) Freedom 101 is made possible by generous
support from *** Young and the University of Oklahoma Alumni
Association Freedom 101 is a program of the Institute for the
American Constitutional Heritage at the University of Oklahoma.
For more videos and podcasts visit freedom.ou.edu.
(Music)