The USA Constitution, Its Amendment Process and History

Events leading up to the Constitution

Initially, during the period of colonization, there were 13 colonies found in a newly discovered world an ocean away from Europe. Because of this distance, many colonies had exercised a good deal of self-government. Many of the settlers came to the New World in search of freedom denied them in Europe.

Over time, England came to rule over all 13 of the colonies, but this rule was fairly mild and colonial self-governance was encouraged under the British policy of “salutary neglect.” The distance was simply too great for direct British rule and the British had many other obligations in other parts of the world. Hence, the mother country could not pay much attention to the American colonies.

Prelude to Liberty – History of England leading to Constitution

The indifference of England to the colonies in America continued until the French and Indian War of 1754 through 1763, during which period, a worldwide conflict broke out between British and French allies. As a result of this conflict, the French and Indian interests in America were pitted against colonial and British ones. At war’s end, English leaders thought it only proper for Britain to collect taxes from the colonies for the troops she had supplied. For their part, the colonists strongly objected to the idea of English taxes.

Most of the colonists however considered themselves as British citizens. British citizenship as defined in the Magna Carta of 1215 was based on the principle “no taxation without representation”. English leaders claimed that, as citizens, the colonists were virtually represented in Parliament. But the colonists held that there was no actual representation in Parliament and hence they denied that the British government had the authority, or sovereignty, to tax or legislate for them.

It went against their idea of freedom. This dispute over parliamentary authority was a primary cause of the American Revolution of 1776. The British tried to impose various taxes such as the Stamp Act, the Tea Act, the Townshend Duties, and the like. In the initial phase of the controversy, most inhabitants of America continued to insist that they were good English citizens, simply asking for the rights to which they were entitled.

The British king of the day, George III, was not at all sympathetic to colonial interests and as he rebuffed petition after petition of the so-called continental congresses that the colonists had convened, a permanent split occurred between the British government and the colonists. This split, it is generally agreed, was furthered by a book by English-born Thomas Paine, Common Sense, published in January 1776 (Vile, 1997). Pointing to all the disadvantages, including war, hereditary succession, and oppression that accompanied kingship, Paine proposed that the colonists declare their independence and proclaim that the law should be the only king in America.

Colony’s Assert Rights – days before the revolutionary war

Fighting between the colonists and the British had continued sporadically since the battles at Lexington and Concord in April 1775, and the colonists were coming closer and closer to Paine’s view that the only remedy for their complaints was a firm declaration of independence. Thus, on June 7, 1776, Virginia delegate Richard Henry Lee introduced three resolutions before the Second Continental Congress.

The first resolution proclaimed: That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved. Other resolutions called for forming military alliances and for creating “a plan of confederation.” Five men were appointed to the committee to write a Declaration of Independence: John Adams, Ben Franklin, Roger Sherman, Robert Livingston, and Thomas Jefferson. Of these, Jefferson turned out to be the most important.

It was he who authored the document, later revisions being made by Adams and Franklin and the Continental Congress itself. The opening words of the Declaration of Independence indicate its primary purpose was that of explaining to foreign nations why the colonies were declaring their independence (Vile, 1997). In this document, Jefferson further indicated that, whatever the former relations between Great Britain and America, the residents of the two areas were now distinct peoples.

Articles of Confederation – history, and weaknesses

Though the thirteen colonies united in their struggle for freedom, once they obtained their freedom, they no longer remained united. The states were very different from each other; however, they realized that to grow and prosper, they needed the other states. So, delegates from each state got together and a plan for unity was initially submitted to the Second Continental Congress on July 12, 1776 (Smith, 1987). After much debate, on November 15, 1777, the states finally established a “firm league of friendship” that became known as the Articles of Confederation. The Articles, however, did not go into effect until March 1, 1781 (Smith, 1987).

Under the Articles of Confederation, each state remained independent, with a single vote, and there was no real power behind the central government. Congress (the central government) was made up of delegates chosen by the states and could conduct foreign affairs, make treaties, declare war, maintain an army and a navy, coin money, and establish post offices (Smith, 1987). However, measures passed by Congress had to be approved by 9 of the 13 states.

Congress was severely limited in its powers. It could not raise money by collecting taxes; it had no control over foreign commerce; it could pass laws but could not force the states to comply with them. Thus, the government was dependent on the willingness of the various states to carry out its measures, and often the states refused to cooperate. The articles were virtually impossible to amend, so problems could not be corrected.

Although the Articles of Confederation served as a valuable trial government that was responsible for some important political achievements, including the passage of the Northwest Ordinance of 1787 specifying how the territories would be governed, the negative results of such a weak alliance were fairly predictable. Economic problems resulted as states began enacting tariffs and other trade restrictions on one another’s goods (Smith, 1987).

Currency was not uniform from one state to another. Congress was too weak. On the foreign policy front, the new government found it difficult to enforce or live up to treaties, and American diplomats found themselves treated with disrespect abroad. Politically, the new government lacked adequate power of taxation and defense, and when needed changes were proposed, they were stymied by the rigid requirements to adopt constitutional amendments.

States had their problems as many had patterned their governments on a model similar to that of the Articles, with weak or practically nonexistent executive branches and unstable legislatures torn by factional battles. The result was a series of events that led to the Constitutional Convention of 1787.

An Assembly of Demigods – the giants of the Constitutional Convention

The states of Virginia and Maryland met George Washington’s home, Mount Vernon, to work out problems concerning the Potomac River, and subsequently, a convention was called where all the states could deal with such problems. Nationalistic delegates like James Madison and Alexander Hamilton decided, to use this convention to call for yet another to be held in Philadelphia and to deal with problems of state and national relations generally.

In the winter of 1786-1787, a debtors’ and taxpayers’ rebellion called Shay’s Rebellion in Massachusetts shocked many people. It was a demonstration of the importance of the Articles. Congress subsequently gave its blessing to the new convention that was to meet in Philadelphia to revise the Articles of Confederation, and twelve of thirteen states eventually sent around 55 delegates. These delegates represented the elite of the colonies, including state governors, men who had been active in writing state constitutions, and 39 present or former members of Congress.

Among the best-known and most influential delegates were George Washington, James Madison, James Wilson, Gouverneur Morris, and Alexander Hamilton. John Adams and Thomas Jefferson could not attend as they were serving abroad as diplomats. George Washington was elected President of the convention. As in the Articles of Confederation, voting was by states, with each state delegation having a single vote. Thus, votes were not recorded under individual names, and, when members of the convention desired to retake votes, they could do so. The hope was to encourage compromise and allow reason to change delegates’ minds. Finally, the convention voted that its proceedings would not be made public. James Madison of Virginia recorded the proceedings of the convention meticulously.

A Divided Convention – history of events at the convention

The Virginia Plan was discussed for the first two weeks. The plan called for a much strengthened national government, and, perhaps not surprisingly, its scheme of representation favored populous states like Virginia. An alternative to the Virginia Plan was proposed by the New Jersey delegation and introduced by William Paterson of that state. The essence of the New Jersey Plan was that it favored the interests of the small states.

It accepted the three branches concept and a unicameral legislature. Eventually, the convention decided to move ahead with the Virginia Plan, but many of the ideas of the New Jersey Plan were incorporated in the convention’s final product. The plan for representation of the Virginia Plan was used for one house of Congress and that of the New Jersey Plan for the second. Other compromises had to be worked out regarding the taxation, representation, and importation of the slaves; selection of the president; state and national relations; etc.

Compromise… and Success – more history of the convention

When the convention’s work was near an end, a Committee of Style was created and its most influential member was Gouverneur Morris, the large Pennsylvania delegate with a peg leg. After he and the committee reported the document back to the convention, it was signed on September 17, 1787. Benjamin Franklin, in a speech, argued that the document was the best distillation of collective wisdom that could be expected under the circumstances. Defenders of the Constitution also pointed out that the new document would be open to changes as and when it faced problems.

Almost as soon as the Constitutional Convention finished its work, the country was divided into two groups. Proponents of the new Constitution, soon to be designated the Federalists, naturally pushed for its quick adoption, pointing to the clear weaknesses of the Articles of Confederation and the need for change. They touted the new document as a way to maintain liberty while strengthening the national government so that it would be adequate to the crises it faced.

Opponents of the Constitution, the Antifederalists, in turn, raised a variety of objections to the new Constitution, some based on unfounded fears of any change and others of a more substantial nature. Many Antifederalists thought that the absence of a bill of rights in the new Constitution was confirmation either that its framers were unconcerned with civil liberties or that they did not know how to protect them. Generally, Antifederalists wanted the states to call for yet another convention to resolve such issues before the new Constitution was accepted.

The Ratification Process – more history of the difficulties

While many Federalists appear to have considered a bill of rights unnecessary and possibly even counterproductive or dangerous they also did not want another convention (Edling, 2003). Hence key Federalists indicated that they would work for a bill of rights if such a bill were to be introduced after the new Constitution went into effect. Federalists also launched a very successful series of newspaper articles written by Alexander Hamilton, James Madison, and John Jay under the pen name Publius, eventually collected in The Federalist Papers, arguing for the new Constitution (Edling, 2003).

In the most famous of these essays, Federalist No. 10, James Madison pointed out that the new government was not a pure democracy like classic examples of the past, but rather a republic, or indirect democracy. Such a republic would refine the public view through a system of representation and, by its very size and the varied interests it would uphold the public interest against private interest.. The Great Compromise saved the Constitutional Convention, and, probably, the Union. Authored by Connecticut delegate Roger Sherman, it called for proportional representation in the House, and one representative per state in the Senate (this was later changed to two.)

The compromise passed 5-to-4, with one state, Massachusetts, “divided.” The first state to ratify the Constitution was Delaware, in December 1787, three months after the framers had adjourned the convention in Philadelphia. When New Hampshire was ratified on June 21, 1788, it was the ninth state to do so. By the ratification requirements outlined in Article VII, the Constitution was now officially established.

The acceptance of the necessary number of states, set by the convention at nine, was soon reached, and George Washington was elected president in 1789, the year that the Constitution went into effect. All 13 states had joined the new union by the end of Washington’s first term.

US Constitution, its Articles and Amendments

The U.S. Constitution is the central instrument of government and the “supreme law of the land”. It outlines the structure and powers of the 3 branches of government -executive, legislative, judicial- and the 3 levels of government – federal, state, local. Thirty-nine men signed the Constitution. James Madison came to be known as

“the father of the Constitution”. The U.S. Constitution has 4,400 words. It is the oldest and the shortest written constitution of any government in the world. The basic principles of the Constitution are the same today as when it was written:

• the 3 branches of government are separate and each is checked and balanced off by the power of the other two
• the US Constitution is supreme
• All persons are equal before the law, as are all states and each state must be democratic and respect the law of others,
• The people can change the US Constitution by the methods outlined within it.

The Amendment Process

There are two ways of amendment of which only one method has been used. The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit, typically seven years, for the bill to be approved as an amendment as in the case of the 21st and 22nd amendments.

The second method of amendment is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken. In either case, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too.

The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by a simple majority. The Constitution, then, spells out four paths for an amendment: Proposal by convention of states, ratification by state conventions (never used); Proposal by convention of states, ratification by state legislatures (never used); Proposal by Congress, ratification by state conventions (used once); Proposal by Congress, ratification by state legislatures (used all other times)

The President cannot veto an amendment proposal, nor ratification according to Article 5

“Informal Amendment”: The meaning of the Constitution, or the interpretation, can change over time. When the Constitution has been interpreted alternately, it is referred to as “informal amendment.” There are two main ways that the interpretation of the Constitution changes, and hence the meaning. The first is simply when circumstances change. For example, the political process that has evolved in the United States: political parties and their trappings such as primaries and conventions are not mentioned or contemplated in the Constitution, but they have become fundamental to our political system.

The second major way the meaning of the Constitution changes is through the judiciary. For example, before the Privacy Cases, it was perfectly constitutional for a state to forbid married couples from using contraception; for a state to forbid blacks and whites to marry; to abolish abortion. In neither of these cases was the Constitution changed. Rather, the way we looked at the Constitution changed. This is known as “informal amendment”.

Popular Amendment: The Constitution can be changed by the people in any way the people wish

Until the Seventeenth Amendment was ratified in 1913, Senators were chosen by a state’s legislators. Hence only people with political patronage could be part of the government (Levinson, 1995). Finally, under threat of a Constitutional Convention on the matter, Congress proposed this amendment. The Constitution does not set forth requirements for the right to vote and in the beginning, only male property-owners could vote.

African Americans were not considered citizens, and women were excluded from the electoral process. The 14th and 15th Amendments were passed in 1868 and 1870, respectively. Initially meant to preserve the personal freedoms of African Americans, they now stand, for certain fundamental rights for all citizens (Levinson, 1995). Thus, to amend the Constitution, a proposal must gain the support of two-thirds of the House and Senate, and three-fourths of the states. As a result, of the thousands of proposed amendments, only 27 have passed (Levinson, 1995).

The States ratified the Constitution in the following order: Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, Virginia, and New York. After Washington had been inaugurated, North Carolina and Rhode Island were ratified. The greatest contests occurred in Massachusetts, Virginia, and New York. New York ratified the Constitution by a majority of three votes 30 to 27; Massachusetts by 187 to 168; and Virginia by 89 to 79.

In the course of ratification, there were 78 amendments offered by the State conventions exclusive of Rhode Island’s twenty-one, and those demanded by the first convention in North Carolina.

The Constitution became binding upon nine States by the ratification of the ninth State, New Hampshire, June 21, 1788. Notice of this ratification was received by Congress on July 2, 1788. On September 13, 1788, Congress adopted a resolution declaring that electors should be appointed in the ratifying States on the first Wednesday in January 1789; that the electors vote for President on the first Wednesday in February 1789; and that “the first Wednesday in March next [March 4, 1789] be the time and the present seat of Congress the place for commencing proceedings under the said constitution.” The Convention had also suggested, “that after such Publication the Electors should be appointed, and the Senators and Representatives elected.”

On April 30, 1789, George Washington was inaugurated as President of the United States, but it was not until February 2, 1790, that the Supreme Court held its first session; so that is the date when the government under the Constitution became fully operative.

The US Constitution has had 27 amendments. The Bill of Rights, the first 10 amendments to the Constitution, was adopted in 1791 to meet demands for the signature of Massachusetts and other states to the Constitution (Barlow and Levy, 1988). The Bill of Rights consists of the first ten amendments to the Constitution of the United States. Congress submitted those amendments to the states for ratification on September 25, 1789, and the requisite number of state legislatures ratified them by December 15, 1791 (Barlow and Levy, 1988). The first 27 amendments to the U.S. Constitution may be listed as under (Vile, 1991):

• Amendment 1 – Freedom of Religion, Press, Expression – Enacted on 15 December 1791
• Amendment 2 – Right to Bear Arms – Enacted on 15 December 1791
• Amendment 3 – Quartering of Soldiers – Enacted on 15 December 1791
• Amendment 4 – Search and Seizure – Enacted on 15 December 1791
• Amendment 5 – Trial and Punishment, Compensation for Takings – Enacted on 15 December 1791
• Amendment 6 – Right to Speedy Trial, Confrontation of Witnesses – Enacted on 15 December 1791
• Amendment 7 – Trial by Jury in Civil Cases – Enacted on 15 December 1791
• Amendment 8 – Cruel and Unusual Punishment – Enacted on 15 December 1791
• Amendment 9 – Construction of Constitution – Enacted on 15 December 1791
• Amendment 10 – Powers of the States and People – Enacted on 15 December 1791
• Amendment 11 – Judicial Limits – Enacted on 7 February 1795
• Amendment 12 – Choosing the President, Vice President – Enacted on 15 June 1804
• Amendment 13 – Slavery Abolished – Enacted on 6 December 1865
• Amendment 14 – Citizenship Rights – Enacted on 9 July 1868
• Amendment 15 – Race No Bar to Vote – Enacted on 3 February 1870
• Amendment 16 – Status of Income Tax Clarified – Enacted on 3 February 1913
• Amendment 17 – Senators Elected by Popular Vote – Enacted on 8 April 1913
• Amendment 18 – Liquor Abolished – Enacted on 16 January 1919
• Amendment 19 – Women’s Suffrage – Enacted on 18 August 1920
• Amendment 20 – Presidential, Congressional Terms – Enacted on 23 January 1933
• Amendment 21 – Amendment 18 Repealed – Enacted on 5 December 1933
• Amendment 22 – Presidential Term Limits – Enacted on 27 February 1951
• Amendment 23 – Presidential Vote for District of Columbia – Enacted on 29 March 1961
• Amendment 24 – Poll Taxes Barred – Enacted on 23 January 1964
• Amendment 25 – Presidential Disability and Succession – Enacted on 23 February 1967
• Amendment 26 – Voting Age Set to 18 Years – Enacted on 1 July 1971
• Amendment 27 – Limiting Congressional Pay Increases – Enacted on 7 May 1992

At least seven constitutional amendments were passed to reverse a Supreme Court decision. For example, the Fifteenth Amendment (1868), protecting the citizenship of African Americans, effectively overturned the Dred Scott v. Sandford decision of 1857 and The Sixteenth Amendment (1913) gave Congress the power to levy an income tax, thereby overturning Pollock v. Farmers’ Loan and Trust Co. (1895). Several amendments have been proposed over time but failed to get acceptance by the states (Vile, 1991). Some, because of the language of the bill that passed the Congress, have no expiration date and are still pending ratification. Others have built-in expiration dates:

Article 1 of the original Bill of Rights (1789): This deals with the number of persons represented by each member of the House, and the number of members of the House.

The Anti-Title Amendment: This amendment, submitted to the States in the 11th Congress (in 1810), said that any citizen who accepted or received any title of nobility from a foreign power, or who accepted without the consent of Congress any gift from a foreign power, by would no longer be a citizen.

The Child Labor Amendment: In 1926, an amendment was proposed which granted Congress the power to regulate the labor of children under the age of 18.

The Washington DC Voting Rights Amendment sought to grant the citizens of Washington DC the same full representation in Congress as any state and repealed the 23rd Amendment granting the District votes in the Electoral College. Proposed in 1978, it expired unratified in 1985 (Vile, 1991).

During every session of Congress, hundreds of constitutional amendments are proposed. Seldom do any of them become actual Amendments? They are the proposed amendments. According to a study by C-SPAN, the number of amendments proposed in each of the sessions of Congress in the 1990’s is as follows: 106th (1999 only): 60; 105th (1997-98): 103; 104th (1995-96): 158; 103rd (1993-94): 156; 102nd (1991-92): 165; 101st (1989-90): 214;

In the 109th Congress (2005-2006) some of the proposed amendments are: To ensure reproductive rights of women; To force the Congress and President to agree to a balanced budget, with overspending allowed only in the case of a three-fifths vote of Congress; To ensure that all children who are citizens have a right to a “free and adequate education”; To specifically permit prayer at school meetings and ceremonies; etc.

The Constitution of the United States is a document that was called by Chief Justice John Marshall “the greatest improvement on political institutions – a written constitution”. This written constitution is the “fundamental and paramount law of the nation”. The central aspiration of American constitutionalism is the attempt to bind power by words, to govern government with text, to prevent tyranny, and ensure liberty through a written document. The U.S. Constitution is the framework for all rules that govern the administration of the United States of America. In so doing, the Constitution has provided stability and safety to the American People for over 200 years. Thus, it is a document that is to be studied and treasured by all Americans.

Bibliography

Barlow, J. Jackson and Levy, W. Leonard (1988). The American Founding: Essays on the Formation of the Constitution. Greenwood Press. New York.

Edling, M. Max (2003). Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State. Oxford University Press. New York.

Levinson, Sanford (1995). Responding to Imperfection: The Theory and Practice of Constitutional Amendment. Princeton University Press. Princeton, NJ.

Smith, Joseph (1987). The American Constitution: The First Two Hundred Years, 1787-1987. University of Exeter Press. Exeter, England.

Vile, R. John (1991). Rewriting the United States Constitution: An Examination of Proposals from Reconstruction to the Present. Praeger Publishers. New York.

Vile, R. John (1997). A Companion to the United States Constitution and Its Amendments. Praeger Publishers. Westport, CT.