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Current time:0:00Total duration:17:12
CON‑1.C.2 (EK)

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hey this is Kim from Khan Academy and today I'm learning about Article five of the US Constitution which describes the Constitution's amendment process to learn more about Article five I talked to two experts professor Michael Rapaport who is the darling foundation professor at the University of San Diego School of Law where he also serves as the director of the Center for the Study of constitutional originalism and David Straus who's the Gerald Ratner Distinguished Service professor of law at the University of Chicago Law School and author of the living Constitution professor Straus article 5 provides this process for amending the Constitution can you take us through that process a little bit how does it work the quick description of the process is it's really hard it's really hard to amend the Constitution there are actually a couple of different processes that are laid out in article 5 but only one has ever been used amendment starts in Congress and 2/3 of each house of Congress 2/3 and House of Representatives and 2/3 of the Senate has to approve the amendment and then it goes to the states and three-quarters of the states have to approve the amendment so you have to have a really strong consensus in order to get the Constitution changed that way so professor robert poort take us through this process of amending the Constitution why did the framers set it up this way the framers gave a good bit of thought to bring up with an amendment process because they recognized that the Constitution might need to be changed over time either because there were problems with it that weren't anticipated or because circumstances or values changed so there are two steps to the amendment process for an amendment to go into the Constitution to become part of the Constitution as the people proposed and ratified on the proposal side the Congress can propose alternatively a proposal can come from the action of the state legislatures so two-thirds of the state legislators say we'd like to have a constitutional convention proposed and amendment so there's two parts of that obviously the state legislatures have got to want it and then you get at the calling of a constitutional convention okay that's the proposal side there's also the ratification side which is a little bit simpler you need three-quarters of the states to ratify a constitutional amendment and they can ratify it either through the actions of the state legislatures or the actions of state conventions which are special bodies which would be elected in order to decide it's one question whether or not to ratify that proposed constitutional amendment this is fascinating so I actually had no idea about the the 2/3 of the state legislatures being able to propose a constitutional amendment how often does that happen it has never occurred throughout our history although a couple of times there were actions taken to sort of move in that direction but we've never actually had a constitutional convention that has proposed any any amendments it's important to go into why the framers would have set up the system the way they did the most usual situation is for the Congress to propose the amendments and that's happened on all of the 27 amendments which have been ratified for the some part of our Constitution but what happens if the Congress is the problem what happens if the Congress is doing is usurping the power or they're standing in the way of changes that are important or they need to be reformed you can't count on the Congress to want to reform itself so what they did was to have this alternative mechanism which would bypass the Congress and that alternative mechanism was the the Constitutional Convention so the state legislatures proposed apply for it and then the separate entity the Constitutional Convention makes a proposal so they were quite explicit in discussing this that they wanted this as an alternative to the Congress so was this on purpose that they made it very difficult to amend the Constitution well sure seems like it now of course we don't know back then what they had in mind whether they thought well the House the Senate the states they'll sort of be all I'll be run by the same kind of people and they'll kind of agree on things maybe they thought that we just don't know but whatever they were thinking what they gave us was a very difficult process to get through so how long was it from the period when the Constitution was first ratified to the First Amendment to the Constitution beyond the Bill of Rights okay so the the first ten amendments were were ratified in 1791 and then just a mere three years later we had the 11th amendment there was an 11th amendment in 1798 to correct really kind of a technical problem that the Supreme Court did something that the framers really didn't anticipate it would do didn't want it to do and that the lement amendment was adopted to correct that the 12th amendment was adopted in 1804 after the really kind of disaster in the election of 1800 when there was a tie in the electoral college the framers had not foreseen the rise of political parties and political parties made a system for electing the president they had given us very difficult to work with but then there was nothing that was 1804 then there was nothing until after the Civil War and after the Civil War there were three amendments then nothing again really until the Progressive Era in the early 20th century when they were again a bunch of amendments and then after then things that sort of paled off so we really see these kind of sites that these kind of waves in our history what do you think brings those waves on why there why are there some eras when there are lots of constitutional amendments and other eras when there's nothing welcomed here I'm gonna say something I think some people will disagree with but you know but I think it's right and that is that I don't think the process of amending the Constitution has really been the way we actually change it I think what happens is just because the amendment process is so difficult we've worked out other ways of changing things and so amendments come along sometimes because it changes already happened and people decide well it's let's put it in the Constitution just so we can kind of have official recognition of it but a lot of times changes happen and there are a little bit too controversial to get into the Constitution but they seem pretty solid and pretty secure so we just don't know I guess it's fair to say don't bother to amend the Constitution err or don't want to go through the process of amending the Constitution very often people's values may change or they may differ from from what's in the Constitution and it may take a time or circumstances may may may finally occur that that crystallised is this desire to change the Constitution and all of a sudden the opportunity is there and people can suddenly pass a constitutional amendment it's only going to occur during certain circumstances especially when there's strong support for it very interesting yes so it's unlikely that we're going to have a constitutional amendment anytime in the near future when was the last constitutional amendment so the simple answer to that was in 1971 we got the twenty sixth amendment that was both proposed and then remarkably its all-time record proposed and ratified in three months and eight days and that was the the amendment that guaranteed the right to vote of 18-year old ah right so sort of as a response to the Vietnam War yes yes but there actually has been one additional amendment the 27th amendment right so why isn't that the most recent one well there's the funny thing about it the 27th amendment was proposed as part of the original Bill of Rights in 1789 so this amendment was proposed in 1789 ratified in 1992 so it took 202 years interesting and what's the 27th amendment about that has to do with congressional Sal increases it basically says if Congress wants to raise its own salary the increase can't take effect until the next election so it basically gives the voters a chance to to say hey we don't like what you did we're gonna vote you out of office for increasing your salary so one thing that strikes me about article five and just the fact that the the founders included an amendment process altogether it seems very humble and far-sighted to include a way for the document itself to evolve in a way do you think that the framers approached the Constitution with the idea that there were things in the future that they just wouldn't be able to anticipate they had before them and we're acutely aware of a history in which efforts to establish governments had failed and they were really they were really trying to work with that and make sure they didn't do the same thing so that they knew what a hard job they were embarking on and there they made it clear there's a famous passage in which James Madison said look we know a lot of these provisions that were writing in the Constitution their meaning is unclear and their meaning will have to be his phrase was liquidated which is to say people have to figure out what this means because we know what we're giving you is unclear in some ways so yes absolutely they knew there were things that they could not anticipate the framers themselves weren't in agreement on what freedom of speech means you know some of them enacted voted for and got into enacted laws that restricted speech in ways that we would find on tolerate intolerable today we'd say they violate the First Amendment but here you had some of the guys who drafted the First Amendment voting for those laws so near the end of article 5 there's this kind of long-winded clause that says no amendment which may be made prior to the Year 1808 shall in any manner affect the first and fourth clauses in the ninth section of the first article now if I'm cross referencing this correctly what the saying here is you can't make any amendments about slavery so why is this here and why are they talking around it so obliquely the interesting thing about this is what did they do they basically said for 20 years there's not going to be any amendments that are going to speak to the slave trade and the Constitution is is very let's let us say shy about using the term slavery or referring to slavery it actually never actually refers to the term slave there's a variety of thoughts about what was going on but but but one very common view about this is that the Constitution was sort of a little bit embarrassed that the framers were a little bit embarrassed or at least some of the framers were embarrassed about it and so they didn't want to make reference to it to explicitly they might have been a little bit worried about what the verdict of history would be so so they they knew on some level the sort of the morality of slavery but but there it is right there in Article five and there other places in the Constitution to where they don't use the word but what they're doing is protecting slavery and they did add these amendments to the Constitution about slavery and a bad as you say google citizenship and voting but you know the the 14th amendment providing equal citizenship that was pretty much nullified in most respects for a large part of our history states found a way to get around that the 15th amendment was also something that was just not very effective in in preventing african-americans from being denied the vote and yes there's there provisions in the Constitution that are there and you can invoke them and you can rely on them but if you just look at the text of the Constitution I think you get a misleading impression about how the Constitution in our history has actually worked yeah this is a very good point because I think one of the hardest things for students of US history to understand is how is it possible that after the 14th amendment was passed things like Jim Crow happened and I guess the answer is the Constitution is only enforce if it's in four they can that's exactly right it's words on a page do you know that the text is fine and can say all the right things but the institutions and the popular popular will have to be in place to make something of those fine words interesting so how do you think our government might be different if the Constitution didn't include this amendment process I don't think it would have been that different just because article 5 gives us such a hard process to go through just because it's so hard to amend the Constitution we figured out other ways to change the Constitution in practice even if the words on the page are the same and I think if there were no article 5 we would have found a way to get to where we wanted to get to as a country by those means by legislation by presidential action by Supreme Court decision and just by the people in their lives saying you know we need to we need to go in this direction we need to go say in the direction of women's equality and by the way there's no amendment giving women equal rights either but that's where we've gotten to and I think that would have been the pattern if there were no formal amendment process there's a second way in which you could have constitutional change which is you could simply say alright this constitution was pretty good for a while it's now outlived its usefulness let's have a new constitution that would seem like a very radical big thing to do no one virtually no one proposes that at the federal level but in the States lots of states have changed their constitutions not simply passed the constitutional amendment but just gotten rid of the whole old Constitution and adopted it a new one that's happened many times and so if we didn't have a constitutional amendment process it's quite possible that that's exactly what we would have seen at the federal level have this is really fascinating because we really think a lot about what the framers intended you know for certain amendments for example you know freedom of speech freedom of religion what did they really mean by those things but if we had just kind of every now and again said okay we're done with that let's do a new constitution we wouldn't necessarily have that debate we just say okay this is what we meant at the time famously promised Jefferson said oh you know it's really not right to have a constitution that's going to continue overtime and bind future generations and so we ought to have a new constitution every 19 years when there's a new generation and his close friend James Madison has to disagree with him and basically said look I understand why you're saying that but you also have to realize the incredible disruption that would cause every 20 years people wouldn't be able to rely on the existing rights that are in the Constitution because they would know in a certain period of time new ones would be enacted we had that debate Madison won in the sense that the US Constitution is is supposed to last for a long term period there's no no 20 year limit on it and one of the things that's been beneficial for the United States as a result of that is that we've inherited these constitutional rights that people have a lot of reverence for so we've learned that there are two ways to amend the Constitution through Congress or through a special constitutional convention called by the states either way adding an amendment to the Constitution is really difficult to do so much so that the American people have only in special circumstances used a constitutional amendment to effect social or political change to learn more about article 5 visit the National Constitution Center's interactive Constitution and Khan Academy's resources on US government and politics