Amending the Constitution More depth...

Failed Amendments Flag Desecration Six votes in the House of Representatives since 1995 Passed all six times (albeit with steadily reducing numbers) Senate has then rejected the amendment 3/3 times But, it is getting closer each time (just 1 vote short in 2006) Tends to be a ‘Republican’ issue

Failed Amendments Balanced Budget 1995: Passed in the House / Failed in the Senate 1996: Failed in the Senate 1997: Failed in the Senate 2011: Failed in the House & Senate

Failed Amendments Vast majority of attempted amendments in the last 20 years come from a Republican-controlled Congress. For example, no proposals mid-2006 to late-2011. Republicans tend to feel more strongly about issues like ‘flag burning’ or gay marriage, so they are only worth pursuing in a Republican Congress. Need for a super-majority means that any amendment will almost certainly need bipartisan support.

Why so rare? 17 amendments in 220 years! Founding Fathers made the process deliberately difficult; not to be undertaken lightly. Americans are naturally cautious of meddling with their beloved Constitution. The experience of bringing in and then overturning Prohibition (Amendments 18 & 21) was, ironically, a sobering experience.

Why so rare? Because there are other ways of shifting the scope of the Constitution... The Founding Fathers were deliberately vague about a lot of things. This leaves scope for ‘evolution’ of the document’s meaning.

Why so rare? We call this ‘change through developing conventions’. For example, the massively powerful congressional committees are not mentioned in the Constitution, but they have evolved to fulfill a purpose over time. Neither are the Cabinet, EXOP (Executive Office of the President) or the federal bureaucracy. We call this ‘change through developing conventions’.

Why so rare? There is also the crucial matter of changes through Supreme Court (or ‘judicial’) interpretation... Plessy v. Ferguson (1896) upheld the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of ‘separate but equal’. The ruling stated that segregation did not contradict the 14th amendment which guaranteed all citizens ‘equal protection’ under the law.

Why so rare? But the Supreme Court’s interpretation of the 14th Amendment has since changed... Brown v. Board of Education (1954) declared state laws establishing separate public schools for black and white students unconstitutional. The Court's unanimous (9–0) decision stated that ‘separate educational facilities are inherently unequal’. Not just ‘words on paper’

Why so rare? Another example would be the interpretation of ‘cruel and unusual punishment’ from the 8th Amendment. (Even the Amendments are sometimes deliberately vague.) “We live under a Constitution, but the Constitution is what the judges say it is” (Chief Justice Hughes, 1909)

‘Far from being rigid, the US Constitution is remarkably flexible ‘Far from being rigid, the US Constitution is remarkably flexible.’ Discuss. (30 marks)