The United States Constitution is unusually difficult to amend. As spelled out in Article V, the Constitution can be amended in one of two basic ways. First, amendment can take place by a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures or conventions in three-fourths of the states (ratification by thirty-eight states would be required to ratify an amendment today). This first method of amendment is the only one used to date, and in all but the case of the 21st Amendment, state ratification took place in legislatures rather than state conventions. Second, the Constitution might be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention's proposed amendments are later ratified by three-fourths of the state legislatures (or conventions in three-fourths of the states).
Because any amendment can be blocked by a mere thirteen states withholding approval (in either of their two houses), amendments don't come easy. In fact, only 27 amendments have been ratified since the Constitution became effective, and ten of those ratifications occurred almost immediately--as the Bill of Rights. The very difficulty of amending the Constitution greatly increases the importance of Supreme Court decisions interpreting the Constitution, because reversal of the Court's decision by amendment is unlikely except in cases when the public's disagreement is intense and close to unanimous. Even unpopular Court decisions (such as the Court's protection of flagburning) are likely to stand unless the Court itself changes its collective mind.
The Court has at various times considered the validity of constitutional amendments. Importantly, the Court has considered the method of proposal and ratification, as well as the constitutionality of the subject matter of the amendment, to be a justiciable--and, therefore, not a "political"--question. In the Hawke v Smith (1920), for example, the Court upheld Ohio's ratification of the Eighteenth Amendment over objections that the Ohio Constitution provided for a referendum on the issue by voters that might have overridden the Ohio legislature's ratification of the amendment. The Court concluded that the federal law set for in Article V providing specifically for ratification by state legislatures preempted conflicting state procedures for ratification. Also, in the National Prohibition Cases (1920), the Court generally upheld the validity of the Eighteenth Amendment, rejecting arguments that a prohibition on the distribution and possession of alcohol was a constitutionally impermissible subject matter for a constitutional amendment.
included in our readings consider the effect of
repealing the Eighteenth Amendment. In the
first case, LaRue
California (1972), the Court concludes that
qualifies the First Amendment, thus allowing
states to regulate
in establishments that serve alcohol, even when
such restrictions might
violate the First Amendment if applied
elsewhere. In 1996,
in the 44 Liquormart, Inc. v Rhode Island,
the Court disavows
earlier conclusion and makes clear that the
it may allow restrictions on alcohol that would
otherwise violate the
Clause, in no way qualifies the reach of the First
Court therefore concludes that Rhode Island's
the price of alcohol violate the First Amendment.
2005, in Granholm
v Heald, the Court held
that Section 2 of the 21st Amendment did not give
states the power to
discriminate against out-of-state wine sellers in
ways that would
otherwise violate the Commerce Clause.
Ruling 5 to 4, the Court
struck down a Michigan law banning out-of-state
wineries from selling
wine to Michigan residents over the
Internet. Michigan allowed
Michigan wineries to directly ship to consumers,
non-Michigan wineries from doing the same.
The Court noted,
however, that the 21st Amendment clearly gave the
state the power to
ban ALL direct shipments of wine (or other
alcoholic beverages) to
consumers if it chose to do so. Four
dissenters argued that the
history of the 21st Amendment proved that it was meant to
exclude regulation of
alcoholic beverages from the normal prohibitions
discrimination under the Commerce Clause--however
misguided that policy
might seem today.
2. Don't the amendment procedures doom many potentially good changes, because one or the other political parties will see itself as adversely affected by a proposed change? For example, won't Republicans forever block Washington D.C. from gaining representation in Congress because any representative elected by D. C. citizens is likely to be a Democrat? Isn't it equally unlikely that the electoral college method of choosing a president will ever be changed?
3. May a state rescind its prior ratification if an amendment has yet to be ratified by three-fourths of the states?
4. Many proposed amendments, such as the Equal Rights Amendment, have limited the period for ratification to seven years? Are such limits a good idea? What if a state ratifies an amendment after the specified period? What if a proposed amendment contained no time limit and was ratified two centuries later (see the 27th Amendment)?
5. The Court has recognized the constitutionality of ratification procedures as a justiciable question. Should the Court consider these issues, or should it leave them to the other branches to work out?
6. Only two provisions in the Constitution have been made unamendable--and the unamendability of one of those, the provision barring restrictions on the importation of slaves, expired in 1808. The only provision now unamendable is the guarantee that each state will have equal suffrage in the Senate. Why do you suppose the framers attached such importance to that provision? What if--despite the provision against changing suffrage in the Senate--, we first repealed the provision prohibiting amendment and that ratified an amendment giving larger states more Senate representation? Are there other impliedly unamendable provisions? Could we abolish the Executive Branch by amendment?
7. What if an amendment (say, an amendment prohibiting abortions) included language prohibiting the amendment from ever being repealed? Should the courts enforce the provision and invalidate an amendment that sought to again permit abortions?
8. The Court, in LaRue and 44 Liquormart, wrestled with the question of whether the Twenty-First Amendment qualified the First Amendment. What do you think is the best answer to that question?
9. Consider the various proposed, but unratified, amendments listed on the U. S. Constitution Online link (below). Which of these proposed amendments do you think should have been adopted?