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Tuesday, 10 February 2009

How the US "constitution" gets amended.

“Barack” asks:
“So how does the USA Constitution get changed, Dominic?”

This is what I have found in the US Constitution and its Amendments up to 1995.

For a start, neither in the actual “constitution” nor in its “amendments” is there any reference to the words “referendum” or “plebiscite”. Even the word “people” occurs only twice in the “constitution” itself and four times in the “amendments”. The first of those occurrences in the “constitution” is in that stirring opening sentence: “We, the People of the United States…” Yet it is purely abstract, since “the People” are not assigned any direct legislative power.

In the “constitution” itself, this is the original, as yet unchanged, amendment procedure:

Article V [Amendment Proceedings]The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Note that Section 9 in Article 1 is titled: “Limits on Legislative Power”. Neither Clause 1 nor Clause 4 in any way affect the Amendment procedure as defined above in Article V.

The Tenth Amendment, that I reproduce below, simply dots the “i”s and crosses the “t”s regarding what the States can and can’t do. But note those intriguing last four words: “or to the people” – what “powers” do “the people” actually have? Where are they defined in the “constitution”?

Amendment X [1791 - Rights Reserved to States]The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

However, a number of Amendments have themselves included Sections titled “Amendment Procedure”, of which the one I reproduce below, the infamous 1919 Prohibition Amendment is a typical example.

Amendment XVIII [1919 - Prohibition]
Section 1 [Prohibition]After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2 [Congressional and State Power]The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3 [Amendment Procedure]This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

And that is all. The “constitution” of the United States has absolutely no provision for its amendment by the democratic procedure of a binding referendum. That is why it cannot be considered to be a legitimate constitution since it lacks that essential democratic foundation.

1 comment:

Steve Baron said...

Here is the link to Dominic previous post
link text