American Democracy in Context. Joseph A. PikaЧитать онлайн книгу.
Amending the Constitution
The Articles of Confederation had all but precluded amendments by requiring that they receive unanimous support from all the states. The framers now made the process easier, but not so easy that amendments would overwhelm the Constitution. Indeed, the U.S. Constitution stands out not only for its longevity but also for its relatively few amendments as compared with the constitutions of the states and many other countries. Plenty of amendments have been suggested (well over 10,000), but only 33 have been formally proposed to the states and only 27 of those have been ratified. The first 10 of these make up the Bill of Rights.47 (See Table 2.3 for descriptions of the six formally proposed amendments that were never ratified.)
Table 2.3
Source: Mount, Steve. “Constitutional Topic: The Census.” (http://www.usconstitution.net/constamfail.html).
As a stark contrast, consider France, which has had 15 different constitutions since 1789 and has existed under monarchy and dictatorship as well as under various republics. France’s current constitution was introduced in 1958 and, as of 2018, had already been amended 18 times. Or take an example from within the United States: The state of Alabama has had six constitutions since becoming the twenty-second state in 1819, and its current one—adopted in 1901—has been amended 928 times48 as of 2018. The stability of the U.S. Constitution is partly attributable to its ambiguity. That ambiguity has allowed flexibility in interpreting the Constitution, and flexibility of interpretation has helped to ward off frequent amendments.
Picture Yourself …
Amidst Constitutional Change in Hungary
How can a democracy handle a democratically elected government that intends to change the constitution in ways that make the country a less viable democracy? After the fall of Communism in 1989, Hungary embraced democracy and capitalism. But in the country’s April 2018 parliamentary election, the right-wing coalition government led by Prime Minister Viktor Orbán won its third consecutive two-thirds legislative majority since 2010. That two-thirds majority is significant, because that is what it takes to amend the constitution in Hungary. Orbán, who in 2016 had been the first global leader to endorse Donald Trump’s candidacy for president of the United States, ran on a vigorously anti-immigration platform in 2018. In 2015, Orbán had built a wall along the border between Hungary and Serbia in the name of border security and to prevent asylum seekers from entering Hungary. Once reelected, he secured legislation in 2018 that criminalized any attempts by individuals or groups to help illegal immigrants claim asylum, as well as a controversial constitutional amendment that prohibited foreign nationals from outside Europe (any “alien population”) from settling in Hungary.
That 2018 amendment was the seventh to Hungary’s 2011 constitution (itself written by Orbán and his coalition), and Orbán promised more would come. Each had been secured by a two-thirds party-line vote of parliament. Earlier (equally controversial) amendments had weakened the power of Hungary’s Constitutional Court (the equivalent of our Supreme Court) by limiting judicial independence and the Court’s power to interpret laws; curtailed religious liberty by declaring that the government has a fundamental duty to protect Christian culture and granting Parliament the sole power to decide which religious organizations count as churches; and helped to solidify Orbán’s ruling coalition by banning political advertising in any venue except the state media (which happened to be controlled by Orbán’s Fidesz party)—an action the Constitutional Court had previously declared unconstitutional when passed by ordinary legislation.
Such amendments were condemned by the opposition party within Hungary, and led to protests in the streets of Budapest, but—unlike amendments to the U.S. Constitution—Hungary’s amendments did not require ratification beyond passage in parliament. Critics claimed the amendments were a threat to democracy and human rights, yet they were passed by super-majorities of Parliament whose ruling coalition had won resounding victories in three democratic elections.
Questions to Consider
1 How important is the balance between majority rule and minority rights? Does Hungary’s method of constitutional amendment achieve that balance?
2 What would be the consequences if the U.S. Constitution could be amended by a two-thirds vote of Congress without the need for ratification by the states?
3 What impact might Hungary’s mode of constitutional amendment have on separation of powers? The rule of law?
4 Hungary’s constitution has no separation of church and state. Is that good or bad? Why?
The Formal Amendment Process
As specified by Article V, the process of amending the Constitution consists of two stages: proposal and ratification. As shown in Figure 2.7, proposals can be made in either of two ways:
by a two-thirds vote of both houses of Congress or
by a request to Congress from two-thirds of the state legislatures to call a convention to propose amendments.
To date, all 33 amendments were proposed by Congress. The alternative route—a convention convened by a vote of the state legislatures—poses several problems. The Constitution does not specify how delegates to the convention should be chosen, how many delegates there should be, or what rules such delegates should follow. In addition, such a convention could presumably introduce as many amendments as it wanted. The last time we had a convention, in 1787, we ended up with an entirely new constitution. Fears that another convention could lead to similarly radical change, together with uncertainty about the mechanics of such a convention, make amendment proposals by Congress a safer and easier option.
Figure 2.7 The Constitutional Amendment Process
Whether proposed by Congress or a convention, amendments must then be ratified by the states. Like proposals, ratification can come about in either of two ways (with Congress specifying the method for each amendment proposed):
by a vote of three-fourths of the state legislatures or
by a vote of three-fourths of specially convened state ratifying conventions.
As of 2019, only one of the 27 amendments ratified—the Twenty-First Amendment, repealing prohibition—was ratified by state conventions. In that case, Congress predicted that passage by state conventions was more likely than passage by conservative state legislatures.
Only one constitutional amendment has been passed to repeal another: the Twenty-First Amendment, which ended Prohibition. It was also the only amendment to be ratified by state conventions rather than state legislatures.
George Pimentel / Getty Images
Informal Methods of Constitutional Change
In addition to changes to the Constitution through formal amendment, changes—subtle and not so subtle—have come about as a result of interpretation by the other branches of government. We usually think that such interpretation is done by federal courts, particularly the Supreme Court, but Congress and the president also share a role in interpreting the Constitution. The ambiguity of so much important constitutional language makes interpretation essential.
Judicial Interpretation
The Supreme Court engages in judicial interpretation in the course of exercising its power of judicial