What is meant with an ‘entrenched’ constitution?
A constitution that has special rules making it difficult
to change. This is done to protect it, as the constitution
is seen as more important than ordinary law – it is
fundamental law.
The founding fathers accepted that at some point the
constitution would need to be amended. They therefore
included a procedure for such amendments. But, they
made that process (very) hard, to protect the
constitution.
What is the amendment process?
1st stage
‘Proposal’
Passed by 2/3 majorities in both houses of Congress
2nd stage
‘Ratification’
Approved by the legislatures of ¾ of the states
Approved by state constitutional conventions
in ¾ of the states
US Bill of Rights
Protect individual citizens’ rights
Protect states’ rights and powers
27th Amendment
The 27th amendment establishes that changes to the
salaries of members of Congress can only take effect
after the next elections
This basically aims to ensure that Members of Congress
cannot set their own salary.
It is remarkable because:
It was proposed and passed by both houses of Congress
in 1789
It took until 1992 before it was ratified by enough states
(3/4), more than 200 years later!!!
Is the US constitution flexible or rigid?
There have been only 27 amendments
Only 17 in the last 220 years
Only 1 on the last 40 years
As we found out 27 amendments have been passed
and ratified.
Another 5 amendments have been passed by
Congress, but were never ratified.
In total 11,699 amendments have been proposed, but
never passed by Congress
failed amendments
Equal Rights Amendment + Federal
Marriage Amendment
ERA
Passed by 2/3 majorities in both Houses of
Congress in 1972
Ratified by 35 states (just 3 short of the required
38), including most of the most populous states
federal marriage amendment
Would define marriage as a union
between a man and a woman, and ban same-sex
marriages.
This amendment was supported by president Bush in 2004. In 2006 it got a majority in the House, but no 2/3 majority.
There already was a law, the Defense of Marriage Act (DOMA), defining marriage as between a man and woman, voted on by a Republican-controlled Congress in 1996 against the wishes of president Clinton.
In 2013 the Supreme Court declared DOMA unconstitutional. The Republicans immediately reintroduced the Federal Marriage Amendment in
2013, and again in 2015.
ways the US constitution can be flexible
the US constitution has quite a bit of flexibility
in practice – not through changes to the words, but
changes of their meaning.
A second way in which the constitution has a surprising
level of flexibility is because of the vagueness of some
sections, and the fact that the constitution does not provide rules for all situations.
The constitution is an incredibly impressive piece of work
with detailed clear rules covering many potential
situations. However, it is not perfect, and there are
sections that are vague, and gaps in the rules.
Evaluate the view that the US Constitution is too rigid.
- The procedure is too difficult
ERA; 2/3 majority in Congress + 35 states, still failed
.Amendments are possible
27 Amendments passed - Rigidity is on purpose to limit government power, so not
too rigid
- Bush supported the Federal Marriage Amendment, but was not able to push this through
Gridlock, too much focus on stopping change
Wasteful amounts of election campaign spending are hard to stop - Supreme Court interpretation gives flexibility
- Plessy v Ferguson 1896 🡪 Brown v. Board of Education 1954
The Supreme Court can only
change parts where there is
room for interpretation
The electoral college voting system is undemocratic, but clearly defined in the constitution, and cannot be changed by the courts - Vague sections and gaps in the rules give flexibility
Elastic clause
Merrick Garland
Pardon yourself?
Conventions and Acts of Congress have given stability and filled gaps
- Federal Election Campaign Act 1974 regulating campaign finance
