Constitutional Amendment

Before the creation of the U.S. Constitution in 1787, constitutional amendments had already been instituted as part of several early state constitutions. The pioneering framers of these state constitutions recognized the need to incorporate an element of flexibility into CONSTITUTIONAL LAW, and they provided for constitutional amendment through the legislature or through special conventions. However, the first national CONSTITUTION OF THE UNITED STATES, the ARTICLES OF CONFEDERATION, did not have such flexibility. Amendment of that document required a unanimous vote of Congress, nearly impossible to achieve.

The Framers of the U.S. Constitution sought to avoid the inflexibility of the Articles of Confederation. JAMES MADISON, one of the principle architects of the Constitution, argued in The Federalist Papers that the new compact's amendment procedures, unlike those of the old Articles, protected "equally against that extreme facility, which would render the Constitution too mutable, and that extreme difficulty, which might perpetuate its discovered faults."

Proving the truth of Madison's contention, the first ten amendments to the Constitution were passed as a package by the first session of Congress in 1791. This group of amendments is called the BILL OF RIGHTS. The Bill of Rights fulfilled a promise that the backers of the Constitution, known as the Federalists, had made during the ratification procedure of the Constitution. It guarantees specific liberties relating to (1) rights of conscience, including the freedoms of speech, press, religion, and peaceable assembly (FIRST AMENDMENT); (2) rights of the accused, including freedom from "unreasonable searches and seizures" (FOURTH AMENDMENT), freedom from compulsory SELF-INCRIMINATION (FIFTH AMENDMENT), the "right to a speedy and public trial, by an impartial jury" and with legal counsel (SIXTH AMENDMENT), and freedom from "excessive bail" and "cruel and unusual punishments"(EIGHTH AMENDMENT); and (3) rights of property, including freedom from seizure of property without "due process of law" (Fifth Amendment).

Subsequent amendments have dealt with many different issues, including the extent of federal judicial jurisdiction (ELEVENTH AMENDMENT [1795]), the method of electing the president (TWELFTH AMENDMENT [1804]), the ABOLITION of SLAVERY (THIRTEENTH AMENDMENT [1865]), legalization of the INCOME TAX (SIXTEENTH AMENDMENT [1913]), granting women the right to vote (NINETEENTH AMENDMENT [1920]), presidential succession (TWENTY-FIFTH AMENDMENT [1967]), and the voting age (TWENTY-SIXTH AMENDMENT [1971]).

The FOURTEENTH AMENDMENT (1868), which holds that no state shall "deprive any person of life, liberty, or property, without DUE PROCESS OF LAW; nor deny to any person … the EQUAL PROTECTION of the laws," has arguably been the most important and far-reaching of all the amendments, particularly with regard to its Due Process and Equal Protection Clauses. Through the Fourteenth Amendment, most of the provisions of the Bill of Rights were eventually applied to the states.

In 1972, the EQUAL RIGHTS AMENDMENT (ERA) was formally proposed by Congress. The ERA, which would have forbidden discrimination on the basis of sex, failed to gain ratification within the seven-year deadline proposed by Congress, even after a 39-month extension through June 30, 1982.