The "Living Constitution"

Out of curiosity, what's required for a change to the American constitution? Here in the Netherlands, changes to the constitution require a two-thirds majority in both the "House of Representatives" and the "Senate", on two different occasions with elections in between. There was a major overhaul in 1983, and minor changes are made every few years.

I've got the impression that the requirements for a change to the American constitution are heavier, seeing as the document seems to have remained very close to the original 18th-century version.

I believe it is:

"An amendment to the United States Constitution must be ratified by three-quarters of the states before it can come into effect."

Which means it's impossible.

Google fu tells me basically it has to pass both houses of Congress, as well as being proposed by it. There apparently was one instance where it was proposed by Congress and approved by state legislature instead.

There's also two paths never used; proposal by state legislatures and then approval by state legislature or convention. And quite frankly I can see why those were never used; doing it this way means you have to get a shitload more of people agreeing with each other rather than just going through federal means.

The President has no formal role in making an amendment; he can merely make his opinion known. Granted, that itself is probably hugely influential.

BZZZZZZZZZZZT WRONG! We have over twenty of the damn things, Breadloaf.

http://www.usconstitution.net/constam.html

edited 20th Jun '12 2:12:28 PM by AceofSpades

Damn, it took from 1789 to 1992 to pass the 27th Amendment. Didn't realize the things could hang around for that long.

@Midnight

1) Either 2/3 of each house of Congress agrees on a proposed amendment, or 2/3 of the state legislatures requests that Congress open a constitutional convention (in which the participants come up and vote on what to propose).

2) Either Congress gives the amendment(s) to the state legislatures to approve/disapprove, or tells the states to open state conventions where participants can approve/disapprove. 3/4 of the states must approve.

It should be done a bit more often than it's been done, but not too much, so that we can avoid the "abuse" of living interpretation in the first place.

There's one amendment where Congress decided to use state conventions instead of state houses, while all others are given directly to legislatures. National congress can't pass an amendment by itself; it has to go through states somehow.

It confused me, too, when I first learned about US government in school, as to what all this meant. Turns out that Congress and states are different.

edited 20th Jun '12 2:30:16 PM by abstractematics

"The arc of the universe is long" and all that. Sometimes it just takes a loooong time to get something done.

edited 20th Jun '12 2:25:58 PM by AceofSpades

If enough people got angry enough at Congress they could petition the various State legislatures to call a national Convention. I can't imagine something like that happening any time soon.

Now remember, it takes the agreement of 3/4 of the state legislatures to ratify a constitutional amendment, or 38 out of the 50 state legislatures. And since all but one of the state legislatures is bicameral (Nebraska has one house), that means getting the agreement of the majority of members in 75 or 76 bodies.

The reason that one particular amendment took so long to pass is because there is no time limit for proposed amendments, unlike passing laws which can only happen while the legislature is in session. Once a state's legislature has agreed to ratify an amendment, it sticks unless they change their mind. I've never heard of a legislature doing that, though.

Also, in order to pass a state's legislature, a ratifying resolution must pass both houses while that legislature is in session. If the Senate says yes, but the House of Representatives says no, then it fails to pass.

Another interesting bit of trivia: Amending the Constitution is the exclusive purview of the legislatures. You'll notice that there is no mention of any executive or judicial role in passing Constitutional amendments. If the legislatures wanted to abolish the office of the President and switch to a Westminster system, they could do so and there's nothing the President could do about it.

edited 20th Jun '12 2:45:40 PM by Lawyerdude

@ Ace of Spades

We're not talking about amendments that have already been passed though. We're talking about new ones with respect to the "living constitution". We couldn't even get equality treatment between the genders from the 1970s to pass :(

Amendments are hardly impossible to get passed, even now, breadloaf. Hard, but not impossible. I fucking hate when people say something is impossible when that's a factual lie.

Okay well I'll be happy for America to prove me wrong when they can get one through.

In a weird way, what Britain's got is a living constitution, just without a single constitutional document underpinning it. So, it's not something you need to revise as you go. Without such a document, things shift as needed, when needed, taking principles from core documents as guides rather than sentinels. It seems to work. I'd never really look at it that way before.

Here's the Other Wiki about it. Hmmm: historical accident. I love it.

edited 20th Jun '12 4:20:00 PM by Euodiachloris

Thing is, most issues right now important enough that to warrant a constitutional amendment are too controversial to get the broad consensus needed for one. Requiring a decent sized super-majority before changing the constiution is a good thing, in my opinion; it's just that lately we have a very divided electorate.

Well, to me it's really sort of doesn't matter either way. If your government is sound and the electorate wants good changes, they happen regardless of the constitution. If you have an evil oppressive government, it's going to ignore the constitution anyway (or like Egypt, the military just rewrote the damn thing). So I think in a sense that all constitutions are "living" and that it's up to the electorate to make sure the government acts properly and if they get apathetic or brainwashed or whatever, then that's when everything goes downhill.

They forgot to ratify it, and Congress never set a time limit on it. It was found again for the last time by a student writing a paper and ratified via legal loophole (and yes, some Congressmen did try to challenge it in court and claim that it should have expired, thus establishing the rule that if no time limit is set, an amendment is in play forever, in theory). I think there are other amendments floating out there with no time limit and no ratification, but I don't remember what.

As to amending the US Constitution, it is obscenely difficult and, thus, doesn't happen particularly often. Especially not in today's political climate.

BZZZZZZZZZZZT WRONG! We have over twenty of the damn things, Breadloaf.

BZZZZZZZZZZZZT, we have seventeen of them, the other ten came with the original.

Technically, no, the Constitution did not come with the Bill of Rights. It came with a promise to write a Bill of Rights, which was added all at once as the first ten amendments. So yes, we do have more than twenty amendments. Otherwise, we wouldn't have counted the first ten as amendments to begin with, because they'd be part of the body of the document.

@breadloaf

While effectiveness and current scope of applicability is important, I don't think that's what Living Constitution means. It means that the interpretation and strength of the document should be adaptable by different people at different times.

That's why I'm skeptical about it. It's one thing to correctly interpret the document; it's another thing to say "That's correct back then, and this is correct now."

You know, it's sorta problematic because it depends how your court system is set up. For instance let's say we were ruling on women's rights 200 years ago. Nobody would have given them the right to vote and what happens if it went up to supreme court and then the judges ruled against women?

Then you flash forward to the 1920s and then if you went with a strict "it never changes", now you're screwed. You need a specific constitutional amendment. But then, we've seen how difficult it has been to get those amendments.

Comments above going "BZZZT YOU ARE WRONG" about that by indicating over twenty amendments ignores how ten of those were the Bill of Rights, which happened right after the constitution in a short time frame, and many of the others are heavily technical. Only very few of those amendments meant true changes to the way the country is governed and what rights are granted people.

In fact, of the amendments that are no part of the Bill of Rights, which have really expanded civil liberties or social rights? The list is super small and all took super long to ratify.

It's always dangerous to amend or to "refresh" a constitution but we're in this situation where the USA wrote its constitution in the 18th century and it sucks ass compared to the ones written in the 1980s like the Canadian one. For instance, it doesn't even protect your right to vote (ie. you're allowed to have banned voter lists).

edited 21st Jun '12 4:39:28 PM by breadloaf

That's why there should be judicial recommendations, to allow the judiciary to rule within a given scope while deferring to another body (such as the Congress) that there should be changes.

If there's enough of an outcry, amendments are indeed possible - look at 19th, 26th. The situation's not as bad as it seems.

Side note, I would prefer that we make an amendment explicitly extending amendments like 1 through 8 applicable to states, so that we don't need to rely on incorporation.

Amendment 24 banned the poll tax some states had implemented. The seventeenth called for the election of state senators by the people instead of being nominated by legislature. The fifteenth, nineteenth, twenty third and twenty six all expanded voting rights. (To blacks, to women, to the citizens residing in DC, and lowering the voting age to eighteen.) (Obviously the bigotry took longer to root out, but the legal precedent is always an important thing to establish.)

Amendment thirteen was the abolition of slavery, and you can't say that wasn't important. Amendment fourteen is about protecting civil rights, but I don't exactly understand the language. The rest seems to be about technical things; limiting presidential terms, establishing the right to sue a state.

One presumes that other things were taken care of through less drastic measures than a constitutional amendment.

It's true... save for prohibition and its repeal, all amendments are either to give citizens more rights or to deal with technical issues that have occurred while running the government.

edited 21st Jun '12 7:06:48 PM by GameGuruGG

I guess it was just that from my perspective, we didn't need a constitutional amendment for all of those things.

Well, Canada's had a different system than America from the start. It was a matter of the Federal Government (or judiciary, I'm having a brain fart moment right now) deciding that these particular matters as regards voting required a federal, all reaching, amendment to the law. Because otherwise the states could have prevented this from happening AT ALL within their borders. Which, regarding giving the women and the blacks the vote, would have been disastrous.

We've been more federalist from the start, basically we didn't allow provinces to make up their own systems like that. And it's strange how we accomplished that despite having provinces which were so different they didn't speak the same language or have the same religion.

I'm just very jaded by the American congress locked down in partisanship when they could be accomplishing so much right now. It's this time period where America can really fix itself if it just recognised its problems. There's no war, there's no big thing happening, but there's this huge revealed face of massive debt, a class separation in a country that bases itself around social mobility, and it's just trying to stick to how things used to be as if it still worked.

Some things I'd like the American constitution to take in right now:

• gender/sexual equality
• enshrine the right to vote for everyone so long as they are a citizen

Does that include children?