Assume an amendment to the US Constitution is contemplated. Those in favor have a sufficient majority in Congress and the Supreme Court and the support of the President, and want the new amendment to be applicable law as soon as possible. Those fighting its adoption want to put that off as long as possible in the hope that the political climate will swing in their favor first. How long will the process take?
The process for amending the United States Constitution is specified in Article V of the Constitution. Here are the key steps and timeframes:
- Congress must first propose the amendment with a two-thirds vote of both the House and Senate. This can happen relatively quickly if there is sufficient political will.
- The proposed amendment must then be ratified by three-fourths of the state legislatures (38 out of 50 states). This is usually the lengthiest part of the process. There is no time limit on ratification.
- The 27th Amendment took over 200 years to be ratified, while the 26th Amendment was ratified in just 3 months and 8 days. The political climate and public support for an amendment heavily influences the ratification timeframe.
- States can also call for a constitutional convention to propose amendments, though this method has never been used. It would likely take multiple years to organize such a convention.
- Legal challenges could also delay the ratification process if there are questions about the validity of state ratifications. Opponents of an amendment would likely pursue legal action.
Did these rules apply to previous amendments?
Yes, the same general process in Article V of the Constitution has governed all previous amendments to the US Constitution.
Here's a quick overview of how it has worked over time:
- The first 10 amendments were proposed by Congress and ratified by the states in 1789-1791, shortly after the Constitution was adopted. This is the Bill of Rights.
- The 11th Amendment was proposed and ratified in 1794-1795, a couple years later.
- Then there was a long gap until the 12th Amendment in 1803. This patchwork in the early years shows there was some uncertainty and experimentation around the amendment process.
- The 14th, 15th, and 16th Amendments were proposed and ratified from 1866 to 1870, in the aftermath of the Civil War.
- The 17th Amendment for direct election of senators came in 1912.
- The 18th and 21st Amendments on Prohibition bookended the 1920s.
- The 19th Amendment granting women's suffrage was ratified in 1920 after decades of activism.
- Most recently, the 26th Amendment lowering the voting age followed soon after the political upheaval of the 1960s.
So in summary, while the historical circumstances varied widely, the procedural rules in the Constitution have governed every amendment to date. There are no documented exceptions where the Article V process was not properly followed.
Did the ex-confederate states participate in the aftermath of the Civil War?
Yes, the former Confederate states did participate in the constitutional amendment process in the aftermath of the Civil War, but under unique circumstances.
Specifically:
- The 13th Amendment abolishing slavery was proposed by Congress in 1864 and ratified by the states in 1865. The Southern states had left Congress when they seceded, so they did not participate in proposing this amendment.
- However, the 13th Amendment was ratified by 27 of the 36 states, including several former Confederate states that had been reconstructed and readmitted to the Union by that time.
- The 14th Amendment granting citizenship and equal protection was proposed by Congress in 1866 and ratified in 1868. This time the Southern states were required to ratify the 14th Amendment as a condition of rejoining the Union after the war.
- Despite rejecting it at first, the Southern states ultimately ratified the 14th Amendment under pressure from the federal government. Congress also passed Reconstruction Acts to ensure its ratification.
- The 15th Amendment protecting voting rights followed a similar pattern - proposed by Congress and ratified by the states in 1869-1870. The Southern states ratified the 15th under continued oversight from Congress during Reconstruction.
Does ratification require a majority vote of both the state senate and the state representatives?
No, ratification of a constitutional amendment by a state does not require separate majority votes of both the state senate and state house/assembly. Instead, it requires whichever legislative process the state has determined for ratifying constitutional amendments.
There are a few key points on the ratification process:
- The US Constitution in Article V states that amendments must be ratified by the legislatures of 3/4ths of the states or by conventions in 3/4ths of the states. It does not specify joint action by both chambers.
- Most state legislatures only require a majority vote of the full legislature to ratify an amendment. This means the state senate and house combined.
- However, there are some state constitutions that require a supermajority vote (2/3rds or 3/4ths) or separate simple majority votes by each chamber. But this is determined individually by each state.
- Many states have also permitted the governor to veto a ratification act by the legislature. But ultimately the legislature can override this veto with the required majority vote.
- If a state does not ratify an amendment, the governor cannot independently approve it without the legislature's consent.
Are there any other circumstances in which a state senate and house vote as a single body?
There are a few circumstances where state senates and houses can vote as a single, combined legislative body, though it is relatively rare compared to their usual separate roles:
- Joint Meetings - Some state legislatures will hold occasional joint sessions where both chambers meet together in one room. These are largely ceremonial for things like hearing a governor's State of the State address. Joint voting generally doesn't occur.
- Electing Officers - In many states, the full legislature meets together to elect certain officers, like the Secretary or Treasurer of State. This involves joint voting across chambers.
- Overriding Vetoes - A few states require a joint session to override a governor's veto, rather than separate override votes by each chamber.
- Impeachment - Some states provide for joint legislative impeachment trials, with senators and representatives deliberating and voting together on impeachment charges.
- National Constitutional Conventions - If a federal constitutional convention were convened, states might vote as unified bodies to appoint delegates. But there is uncertainty around the rules.
- Committee of the Whole - Legislatures occasionally form a Committee of the Whole with both chambers to informally debate matters, but formal votes still occur separately.
Are delegates to a federal constitutional convention autonomous? Do they have the power to vote on the basis of the proceedings they attend?
There is considerable uncertainty around the rules and procedures for a hypothetical federal constitutional convention, since one has not been convened since the original Constitutional Convention of 1787. However, here are some key points about the potential autonomy and authority of convention delegates:
- Delegates would likely be bound in some way by the states appointing them, but the extent is unclear. States may allow discretion or require votes based on instructions.
- Scholars argue delegates should have freedom to deliberate and compromise at the convention itself, similar to the 1787 convention. Restrictive instructions could make this difficult.
- But others counter that delegates are agents of the states and should stay faithful to state instructions, at least on major issues. There are arguments on both sides.
- There is no judicial or other established way to settle disputes if delegates disregard their state instructions. Enforcement of instructions is uncertain.
- The convention may set its own voting rules, giving delegates leeway in how they determine state votes. This could circumvent certain state instructions.
- However, any proposed amendments would still need 38 states to ratify them afterwards. This gives states a check on the convention's final product.
- So delegates may have autonomy within the convention itself, but ultimate state control comes through ratification. The convention's votes do not directly amend the Constitution without ratification.
There seems very little point in debate at a federal constitutional convention if the voting pays no attention to what is said.
You raise a good point. There would be limited value in having a constitutional convention if the delegates completely disregarded the content of the debates and negotiations and just voted based on predetermined state instructions. Some considerations around your observation:
- The constitutional framers likely envisioned the convention as a deliberative process, with delegates open to persuasion and compromise based on the proceedings. Restrictive state instructions could undermine this.
- However, others argue the convention delegates are agents of the states, and should faithfully represent their states' interests as instructed, not just their own views. This is a matter of ongoing constitutional debate.
- In practice, convention delegates would probably fall along a spectrum. Some adhering closely to state instructions, others taking more discretion based on developments at the convention itself.
- Additionally, instructions from states may leave flexibility. General direction without rigidity allows input from the convention to shape votes while respecting the broader state mandate.
- You're right that overly rigid voting unrelated to the content of the convention essentially makes its deliberations moot theater. This argues against highly specific state instructions constraining delegates.
- But some state control is appropriate given ratification is required. The convention doesn't amend the Constitution alone. The deliberations should inform the delegates to propose wise amendments, not be irrelevant.
Do any emergency powers exist to expedite the passage of a constitutional amendment?
No, there are no special emergency powers that allow constitutional amendments to be proposed or ratified more quickly than the process outlined in Article V of the Constitution. The standard amendment procedures would need to be followed even during an emergency or crisis situation.
The key reasons why emergency powers don't apply to amending the Constitution:
- Article V does not provide any exceptions or expedited processes for emergency conditions. The procedures are defined unconditionally.
- Amending the Constitution is itself considered a very significant action that requires extensive deliberation and consensus, not a quick emergency action.
- The separation of amendment power between Congress and the states serves as a system of checks and balances against rash changes.
- Allowing emergency amendment powers could potentially be abused and undermine constitutional stability.
- Congress does have more general emergency powers to enact laws and take actions within constitutional bounds in crisis situations. But these don't extend to actually changing the Constitution itself.
- States of emergency also don't enable the President or Congress to override the amendment process or normal legislative procedures.
- Historical attempts to expedite amendments during wars or depressions have not succeeded. The usual lengthy process held firm.
Which legal framework changed the number of terms a President can serve?
The 22nd Amendment to the United States Constitution imposed a two-term limit on the Presidency. It was proposed by Congress in 1947 and ratified by the states in 1951.
Specifically, the 22nd Amendment states:
"No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once."
Prior to this amendment, there was no constitutional limit on the number of terms a President could serve. A two-term tradition was established by George Washington and followed for many years.
However, Franklin D. Roosevelt broke this tradition by being elected President four times, serving from 1933 until his death in 1945. The 22nd Amendment was passed not long after with the aim of formalizing the two-term limit in the Constitution.
So in summary, the two-term limit on the Presidency was established constitutionally by the ratification of the 22nd Amendment in 1951. This changed the previous unlimited eligibility for re-election.
Which states failed to ratify?
Every constitutional amendment that has been ratified was eventually approved by the required three-fourths of the states, which is currently 38 out of 50. However, there have been instances where some states initially rejected or resisted ratifying specific amendments:
- 13th Amendment (1865) - Delaware and Kentucky rejected this amendment abolishing slavery before later ratifying it.
- 14th Amendment (1868) - The Southern states of Virginia, North Carolina, South Carolina, Georgia, Louisiana, Florida, Alabama, Mississippi, Arkansas, and Texas initially rejected the 14th Amendment granting citizenship and equal rights. They eventually ratified it later under Reconstruction policies after the Civil War.
- 15th Amendment (1870) - New Jersey and Delaware voted to reject the 15th Amendment guaranteeing voting rights regardless of race or color. They both later changed their votes to ratify it.
- 19th Amendment (1920) - Twelve southern states refused to ratify the 19th Amendment giving women the right to vote. These included Alabama, Georgia, Louisiana, Maryland, Mississippi, North and South Carolina, Virginia, Florida, and Delaware. But with other state approvals, it still passed with the needed three-fourths.
- Child Labor Amendment - This proposed amendment was passed by Congress in 1924 but ultimately ratified by only 28 states, failing to reach three-fourths as resistance grew over time.
Which states failed to ratify the 22nd Amendment?
All states eventually ratified the 22nd Amendment, which limits presidents to two terms. However, there was some initial opposition:
- Congress proposed the amendment in 1947 and set a 7-year ratification deadline.
- By 1951, only 30 of the required 36 states had ratified it. Opposition came largely from the South.
- On February 27, 1951, Minnesota and Washington became the 37th and 38th states to ratify it, meeting the threshold as the deadline approached.
- The six states that had still not ratified were:
- South Carolina
- Alabama
- Mississippi
- Oklahoma
- Louisiana
- Massachusetts
- Even after the ratification threshold was met, five of these states went on to also ratify the amendment:
- South Carolina - March 13, 1951
- Alabama - March 16, 1951
- Massachusetts - March 22, 1951
- Mississippi - March 29, 1984
- Oklahoma - July 1, 2002
- Louisiana is the only state that has still not officially ratified the 22nd Amendment. But since the amendment achieved the needed 38 states back in 1951, Louisiana's lack of ratification is mainly just a historical footnote now.
Are there any amendments still requiring adequate ratification which have not passed their deadline and expired?
There are no pending constitutional amendments at the moment that have passed their ratification deadline without being fully ratified. However, there have been a few historical cases:
- The 18th Amendment, establishing Prohibition, was proposed in 1917 with a 7-year ratification deadline. It met the 3/4 state threshold in 1919 and was added to the Constitution before the deadline expired.
- The 20th Amendment, moving presidential inaugurations to January, passed Congress in 1932 with a 7-year deadline. It was ratified in 1933, well before the deadline.
- The 19th Amendment granting women's suffrage had no ratification deadline when proposed in 1919, but was ratified in 1920.
- The failed Child Labor Amendment passed Congress in 1924 with a 7-year deadline but only got 28 state ratifications out of the required 36, so it expired.
- The 23rd Amendment giving Washington DC electoral votes was proposed in 1960 with a 7-year deadline and ratified in 1961.
- The review deadline for the Equal Rights Amendment expired in 1982 with only 35 of needed 38 state ratifications. Attempts to revive it have not succeeded.
I suggest that there have been Americans who hold Lucius Quinctius Cincinnatus as a role model for a political actor who would arise should the survival of the Constitution be endangered by civil, military or foreign insurrection. Could you discuss the history of potential dictatorship in the USA, bearing in mind our discussion so far.
There is a tension in American political thought between upholding constitutional principles and processes, and dealing with crises that seem to require extraordinary measures.
Lucius Quinctius Cincinnatus was a Roman consul who was granted emergency dictatorial powers to defend Rome against invasion. After succeeding, he relinquished power and returned to his farm, seen as an example of civic virtue and service.
In American history, some leaders have admired Cincinnatus as a model of reluctantly and temporarily assuming unchecked power for the greater good:
- George Washington was occasionally compared to Cincinnatus as commander of the Continental Army, then resigning his commission after the Revolutionary War to return to civilian life. This set a lasting example.
- Some saw Lincoln's suspension of habeas corpus during the Civil War as a necessary, Cincinnatus-like assumption of emergency authority to preserve the Union.
- Fictional depictions in literature and film have imagined American dictators arising to restore order from calamity, then relinquishing power back to democratic governance.
The Constitution does not have clear emergency provisions for suspension of its normal requirements, besides Congress's power to suspend habeas corpus.
Overall, the Cincinnatus model does not align cleanly with America's constitutional rule of law and checked executive power. Emergency dictatorship has not been an accepted recourse during national crises. Reverence for the Constitution itself has remained more enduring in American political culture.
Please provide me with a reading list of fictional depictions in literature, and equivalent films to consider.
Here are some notable fictional works that have imagined scenarios of emergency dictatorships or figures with absolute power in the United States:
Literature:
- "The Man Without a Country" (1863 short story) - An American officer exiled for treason looks back on his life.
- "A Dictator for the Republic" (1904 short story) - Business leaders install a chemical magnate as dictator to suppress populist unrest.
- "It Can't Happen Here" (1935 novel) - A demagogue becomes President and imposes fascist rule.
- "The Man in the High Castle" (1962 novel) - Depicts America ruled by Germany and Japan after winning World War II.
- Gabriel Over the White House (1933) - A President becomes a benevolent dictator during the Great Depression.
- Seven Days in May (1964) - Military leaders plot a coup to take over from a dovish President.
- The Parallax View (1974) - A corporate/political cabal recruits political assassins and seeks unchecked power.
- V for Vendetta (2005) - A fascist regime rules a dystopian United Kingdom. Echoes American parallels.
Have any depictions cast a dictator in a sympathetic light?
Yes, some fictional depictions have portrayed imaginary American dictators in a relatively sympathetic or even heroic light:
- Gabriel Over the White House (1933 film) - The President becomes an "benevolent dictator" who eliminates crime and solves the Great Depression through absolute power.
- "The Man on Horseback" (1955 novel) - A military officer seizes power but uses it to reform society before returning the country to democracy.
- The Controller in Kurt Vonnegut's "Harrison Bergeron" (1961 story) - Though authoritarian, he argues absolute power is necessary to force equality on a resistant society.
- President Jed Bartlet on The West Wing (1999-2006 TV series) - While not a dictator, Bartlet is shown at times justifying extra-constitutional actions for the greater good.
- "The Last Article" (1988 short story) - Mahatma Gandhi collaborates with Hitler to peacefully grant India independence from Britain. A sympathetic dictator.
- Captain America: The Winter Soldier (2014 film) - S.H.I.E.L.D. is revealed to be secretly planning to use advanced technology to identify and eliminate threats before they happen. They position this as necessary to ensure order and security.
Dictators of the Cincinnatus mold would also conclude constitutional democracy is preferable, which is why they would invariably retire to private life once their task was complete.
You make a fair point. The defining trait of a "Cincinnatus-style" dictator is that they do not seek power for its own sake or personal ambition, but reluctantly take it on temporarily out of a sense of duty in crisis. Once the emergency situation is resolved, they immediately relinquish power back to democratic governance.
So in theory, a benevolent Cincinnatus-inspired dictator would be aligned in the goal of restoring constitutional order and processes as soon as reasonably possible. Power is only a means to address the crisis, not an end in itself.
However, critics would counter that:
- Even well-meaning dictators can fall prey to corruption and refusal to give up power. "Power tends to corrupt."
- It is difficult for outsiders to judge when a crisis truly warrants suspension of democracy versus patient perseverance through constitutional means. Emergencies can be manufactured or exaggerated.
- It creates a dangerous precedent that may be exploited by less scrupulous leaders down the road. Constraints on power should be consistent.
- Democratic processes like public debate, transparency and separation of powers may arrive at better solutions than a sole unchecked ruler, even if slower.
This has been an interesting exploration, your knowledge base was essential and your analysis has been impressive. Thank you for your help.