7 Constitutional Change

THE AMENDMENT PROCESS

Since ratification in 1789, the Constitution has been amended only twenty-seven times. The first ten amendments were added in 1791. Responding to charges by Anti-Federalists that the Constitution made the national government too powerful and provided no protections for the rights of individuals, the newly elected federal government tackled the issue of guaranteeing liberties for American citizens. James Madison, a member of Congress from Virginia, took the lead in drafting nineteen potential changes to the Constitution.

Madison followed the procedure outlined in Article V that says amendments can originate from one of two sources. First, they can be proposed by Congress. Then, they must be approved by a two-thirds majority in both the House and the Senate before being sent to the states for potential ratification. States have two ways to ratify or defeat a proposed amendment. First, if three-quarters of state legislatures vote to approve an amendment, it becomes part of the Constitution. Second, if three-quarters of state-ratifying conventions support the amendment, it is ratified. A second method of proposal of an amendment allows for the petitioning of Congress by the states: Upon receiving such petitions from two-thirds of the states, Congress must call a convention for the purpose of proposing amendments, which would then be forwarded to the states for ratification by the required three-quarters. All the current constitutional amendments were created using the first method of proposal (via Congress).

Having drafted nineteen proposed amendments, Madison submitted them to Congress. Only twelve were approved by two-thirds of both the Senate and the House of Representatives and sent to the states for ratification. Of these, only ten were accepted by three-quarters of the state legislatures. In 1791, these first ten amendments were added to the Constitution and became known as the Bill of Rights.

The ability to change the Constitution has made it a flexible, living document that can respond to the nation’s changing needs and has helped it remain in effect for more than 225 years. At the same time, the framers made amending the document sufficiently difficult that it has not been changed repeatedly; only seventeen amendments have been added since the ratification of the first ten (one of these, the Twenty-Seventh Amendment, was among Madison’s rejected nine proposals). Recent conversations about needed amendments have related to women’s rights, flag burning, and reforming the Electoral College. To date, none of these has advanced.

KEY CONSTITUTIONAL CHANGES

The Bill of Rights was intended to quiet the fears of Anti-Federalists that the Constitution did not adequately protect individual liberties and thus encourage their support of the new national government. Many of these first ten amendments were based on provisions of the English Bill of Rights and the Virginia Declaration of Rights. For example, the right to bear arms for protection (Second Amendment), the right not to have to provide shelter and provision for soldiers in peacetime (Third Amendment), the right to a trial by jury (Sixth and Seventh Amendments), and protection from excessive fines and from cruel and unusual punishment (Eighth Amendment) are taken from the English Bill of Rights. The Fifth Amendment, which requires among other things that people cannot be deprived of their life, liberty, or property except by a legal proceeding, was also greatly influenced by English law as well as the protections granted to Virginians in the Virginia Declaration of Rights.

Other liberties, however, do not derive from British precedents. The protections for religion, speech, the press, and assembly that are granted by the First Amendment did not exist under English law. (The right to petition the government did, however.) The prohibition in the First Amendment against the establishment of an official church by the federal government differed significantly from both English precedent and the practice of several states that had official churches. The Fourth Amendment, which protects Americans from unwarranted search and seizure of their property, was also new.

The Ninth and Tenth Amendments were intended to provide yet another assurance that people’s rights would be protected and that the federal government would not become too powerful. The Ninth Amendment guarantees that liberties extend beyond those described in the preceding documents. This was an important acknowledgment that the protected rights were extensive, and the government should not attempt to interfere with them. The Supreme Court, for example, has held that the Ninth Amendment protects the right to privacy even though none of the preceding amendments explicitly mentions this right. The Tenth Amendment, one of the first submitted to the states for ratification, ensures that states possess all powers not explicitly assigned to the federal government by the Constitution. This guarantee protects states’ reserved powers to regulate such things as marriage, divorce, and intrastate transportation and commerce, and to pass laws affecting education and public health and safety.

Of the later amendments only one, the Twenty-First, repealed another amendment, the Eighteenth, which had prohibited the manufacture, import, export, distribution, transportation, and sale of alcoholic beverages. Other amendments rectify problems that have arisen over the years or that reflect changing times. For example, the Seventeenth Amendment, ratified in 1913, gave voters the right to directly elect U.S. senators. The Twentieth Amendment, which was ratified in 1933 during the Great Depression, moved the date of the presidential inauguration from March to January. In a time of crisis, like a severe economic depression, the president needed to take office almost immediately after being elected, and modern transportation allowed the new president to travel to the nation’s capital quicker than before. The Twenty-Second Amendment, added in 1955, limits the president to two terms in office, and the Twenty-Seventh Amendment, first submitted for ratification in 1789, regulates the implementation of laws regarding salary increases or decreases for members of Congress.

Of the remaining amendments, four are of especially great significance. The Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments are the result of long-fought campaigns by supporters of abolition and the expansion of voting rights to all citizens regardless of gender or race. These campaigns gathered momentum during the Reconstruction Era, when prominent abolitionist Frederick Douglass argued that African American men had earned the right to vote by their service during the Civil War and women’s rights leaders such as Susan B. Anthony and Ida B. Wells organized to promote voting rights for women.

INSIDER PERSPECTIVE

Abolitionist and Suffragist Charlotte Forten Grimké

More than a century before Amanda Gorman wowed the country with her inspirational poem at the 2021 inauguration of President Joe Biden and Vice President Kamala Harris, another African American woman poet was making a difference in Washington, DC.

Figure 2.15 This undated photograph of Charlotte Forten Grimké is thought to have been taken c. 1860. (a). Amanda Gorman prepares to recite her inaugural poem, “The Hill We Climb,” at the presidential inauguration ceremony on January 20, 2021 (b). (credit a: modification of “Charlotte Forten Grimké full” by Unknown/Wikimedia Commons, Public Domain; credit b: modification of “Amanda Gorman” by Navy Petty Officer 1st Class Carlos M. Vazquez II and Chairman of the Joint Chiefs of Staff/Wikimedia Commons, Public Domain)

Charlotte Forten was born in Philadelphia in 1837 to a prominent family of abolitionists. She later became a teacher and writer, and, in her work, advanced the causes of women’s suffrage and the abolition of slavery. During the Civil War, she taught newly freed enslaved people in South Carolina and later moved to Washington, DC, where she taught secondary school, wrote poetry, and participated in social movements related to race and gender, including helping establish the National Association of Colored Women and fighting for a woman’s right to vote. In 1878, she married Francis J. Grimké, the nephew of famed abolitionists Sarah and Angelina Grimké. Today, her longtime home in the Dupont Circle neighborhood of Washington is on the National Register of Historic Places.¹⁹

Among her many publications is the inspirational poem “Wordsworth,” written in honor of Romantic poet William Wordsworth, one of her favorite authors.

Poet of the serene and thoughtful lay!
In youth’s fair dawn, when the soul, still untried,
Longs for life’s conflict, and seeks restlessly
Food for its cravings in the stirring songs,
The thrilling strains of more impassioned bards;
Or, eager for fresh joys, culls with delight
The flowers that bloom in fancy’s fairy realm —
We may not prize the mild and steadfast ray
That streams from thy pure soul in tranquil song
But, in our riper years, when through the heat
And burden of the day we struggle on,
Breasting the stream upon whose shores we dreamed,
Weary of all the turmoil and the din
Which drowns the finer voices of the soul;
We turn to thee, true priest of Nature’s fane,
And find the rest our fainting spirits need, —
The calm, more ardent singers cannot give;
As in the glare intense of tropic days,
Gladly we turn from the sun’s radiant beams,
And grateful hail fair Luna’s tender light.²⁰

Both Charlotte Forten Grimké and Amanda Gorman used their voices through poetry to give hope to a nation during challenging times. What other challenging times has the U.S. faced and who were the voices of hope that lifted us up?

The Thirteenth, Fourteenth, and Fifteenth Amendments, ratified at the end of the Civil War, changed the lives of African Americans who had been held in slavery. The Thirteenth Amendment abolished slavery in the United States. The Fourteenth Amendment granted citizenship to African Americans and equal protection under the law regardless of race or color. It also prohibited states from depriving their residents of life, liberty, or property without a legal proceeding. Over the years, the Fourteenth Amendment has been used to require states to protect most of the same federal freedoms granted by the Bill of Rights.

The Fifteenth and Nineteenth Amendments extended the right to vote. The Constitution had given states the power to set voting requirements, but the states had used this authority to deny women the right to vote. Most states before the 1830s had also used this authority to deny suffrage to property-less men and often to African American men as well. When states began to change property requirements for voters in the 1830s, many that had allowed free, property-owning African American men to vote restricted the suffrage to White men. The Fifteenth Amendment gave men the right to vote regardless of race or color, but women were still prohibited from voting in most states. After many years of campaigns for suffrage, as shown in Figure 2.16, the Nineteenth Amendment finally gave women the right to vote in 1920.

Subsequent amendments further extended the suffrage. The Twenty-Third Amendment (1961) allowed residents of Washington, DC to vote for the president. The Twenty-Fourth Amendment (1964) abolished the use of poll taxes. Many southern states had used a poll tax, a tax placed on voting, to prevent poor African Americans from voting. Thus, the states could circumvent the Fifteenth Amendment; they argued that they were denying African American men and women the right to vote not because of their race but because of their inability to pay the tax. The last great extension of the suffrage occurred in 1971 in the midst of the Vietnam War. The Twenty-Sixth Amendment reduced the voting age from twenty-one to eighteen. Many people had complained that the young men who were fighting in Vietnam should have the right to vote for or against those making decisions that might literally mean life or death for them. Many other amendments have been proposed over the years, including an amendment to guarantee equal rights to women, but all have failed.

Figure 2.16 Suffragists encourage Ohio men to support votes for women. Before the Nineteenth Amendment was added to the Constitution in 1920, there were only a few western states such as Wyoming in which women had the right to vote. These women seem to be attracting a primarily female audience to hear their cause.