Constitutional change
Rigid and Flexible constitutions
1) Although often described as rigid, the US condition is more flexible as it was designed to protect against=ill thought-out change through a difficult amendment process, at the same time as allowing for change to occur through interpretation of its deliberately vague language and changing customs. 2) This allows the constitution to stay the same, while allowing for the flexibility need for changing conditions.
How can the US constitution be changed? Change through the formal amendment process
1) Formal constitutional amendment is a tortuous process, requires supermajorities of at least two-thirds of the vote in both houses of Congress, followed by ratification by three quarters of the state legislatures (meaning 13 states could block any constitutional change) 2)Process entails long period of debate and demands clear consensus in favour of change 3) only 27 Amendments to constitution since it was written. This number includes the first ten amendments, the bill of rights, ratified in 1791
Change through Supreme Court Interpretation
1) Founding Fathers made constitution deliberately vague- general rather than specific language: e.g.. 14th Amendments 'equal protection of the laws' and the 8th Amendment's banning of 'cruel and unusual' punishment. 2) Judicial interpretation- The words themselves do not change but their meaning can 3) Interpreted differently at different times and in different circumstances; for example, the phrase 'equal protection of laws' in the 14th Amendment was interested one way in Plessy V Ferguson case on 1896 but differently in Brown V board of Education of Topeka case in 1954. 4) Growth of presidential powers from the 1930s and shift of authority from state to federal government can be seen as result of Supreme Court interpretation of constitution 5) US government has been able to evolve and adapt in response to new challenges and demands such as ivil war, great depression, foreign wars, Watergate and presidential impeachment
Change through developing conventions
1) Many of the ways government in USA work today are not in the consituion e.g. -The existence and workings of cabinet, the executive Office of the President and the federal bureaucracy -Huge power of congressional committees and the Supreme Court's power of judicial review
Examples of successful constitutional amendments include:
1) Te civil rights amendments following the Civil War (13th, 14th and 15th Amendments) 2) Direct election for the senate (17th amendment 1913) 3) Amendments to extend voting rights- to women (19th Amendment, 1921) and to age 18 (26th Amendment, 1971) 4) Two-term presidency (22nd Amendment, 1951) 5) Other ways of getting formal change- calling of a constitutional convention by two-thirds of the states. This method has never been used
Changing the constitution
1) There are arguments about whether constitutions are rigid or flexible, easy or difficult to change. 2) All constitutions have some degree of rigidity and flexibility 3) Founding father recognised need to safeguard constitutional rules from 'temporary' government. 4) Although 'ordinary law' is made in congress (subject to judicial review by the Supreme Court since 1803) the constitution itself was deliberately made difficult to change.
Most proposed amendments fail to attract the required support. Examples include:
1) a balanced budget amendment- this would never pass in Congress 2) an equal rights amendment- this failed to get the required states' vote 3) Making abortion, same sex marriage or flag burning unconstitutional
Quote by Chief of Justice Hughes 1909 about Supreme Court interpretation
1)- 'we are under a Constitution, but the Constitution is what the judges say it is'
