and today I'm learning about Article Five

of the U.S. Constitution,

which describes the Constitution's amendment process.

To learn more about Article Five,

I talked to two experts, Professor Michael Rappaport,

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 Davis Strauss,

who's the Gerald Ratner Distinguished Service Professor

of Law at the University of Chicago Law School,

and author of The Living Constitution.

Professor Strauss, Article Five provides this process

for amending the Constitution.

Can you take us through that process a little bit?

How does it work?

- [Strauss] A quick description, 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 Five,

but only one has ever been used.

An amendment starts in Congress,

and two thirds of each House of Congress,

two thirds of the House of Representatives

and two thirds 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 really strong consensus

in order to get the constitution changed that way.

- [Kim] So Professor Rappaport,

take us through this process of amending the Constitution.

Why did the Framers set it up this way?

- [Rappaport] The Framers gave a good bit

of thought to coming 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,

it has to be both 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 legislatures say,

we'd like to have a Constitutional Convention

propose an amendment.

So there's two parts of that obviously.

The state legislatures have got to want it,

and then you get 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 decides one question,

whether or not to ratify

that proposed Constitutional amendment.

- [Kim] This is fascinating.

So I actually had no idea about the two thirds

of the state legislatures being able

to propose a Constitutional amendment.

How often does that happen?

- [Rappaport] 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 amendments.

It's important to go into why the Framers

would've set up the system the way they did.

The most usual situation is for the Congress

to propose the Amendments

and that's happened in all of the 27 amendments

which have been ratified to become part of our Constitution.

But what happens if the Congress is the problem?

What happens if the Congress is doing,

is usurping 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 wanna reform itself.

So what they did was to have this alternative mechanism

which would bypass the Congress.

And that alternative mechanism

was the Constitutional Convention.

So the state legislatures propose, 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.

- [Kim] So was this on purpose,

that they made it very difficult to amend the Constitution?

- [Strauss] Well it 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 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.

- [Kim] 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?

- [Rappaport] Okay, so the first 10 amendments

were ratified in 1791.

And then just a mere three years later,

we had the Eleventh Amendment.

- [Strauss] It was the Eleventh 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 the Eleventh Amendment was adopted to correct that.

The Twelfth Amendment was adopted in 1804

after the really kind of a 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 the 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 there were again a bunch of amendments.

And then after then, things had sort of tailed off.

So we really see these kind of, as I said,

these kind of waves in our history.

- [Kim] What do you think brings those waves on?

Why are there some eras when there are lots

of Constitutional amendments and other eras

when there's nothing?

- [Strauss] Well Kim, here I'm gonna say something

that I think some people will disagree with

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 a change has already happened

and the people decide, well let's put it in the Constitution

just so we can kinda have official recognition of it.

But a lot of times changes happen

and they are a little bit too controversial

to get into the Constitution,

but they seem pretty solid and pretty secure

so we just don't, I guess it's fair to say,

don't bother to amend the Constitution

or don't wanna go through the process

of amending the Constitution.

- [Rappaport] Very often people's values may change

or they may differ from what's in the Constitution

and it may take a time or circumstances may finally

occur that crystallize 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 gonna occur during certain circumstances,

especially when there's strong support for it.

- [Kim] Very interesting, yeah.

So it's unlikely that we're gonna have

a Constitutional amendment any time in the near future.

When was the last Constitutional amendment?

- [Rappaport] So the simple answer to that was in 1971,

we got the 26th Amendment,

that was both proposed and then remarkably,

it's an all time record,

proposed and ratified in three months and eight days.

And that was the amendment that guaranteed

the right to vote of 18 year olds.

- [Kim] Ah, right.

So it's sort of as a response to the Vietnam War.

- [Rappaport] Yes, yes.

But there actually has been one additional amendment,

the 27th Amendment, right?

So why isn't that the most recent one?

Well here'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.

- [Kim] Interesting.

And what's the 27th Amendment about?

- [Strauss] That has to do

with Congressional salary 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 say,

hey, we don't like what you did.

We're gonna vote you out of office

for increasing your salary.

- [Kim] So one thing that strikes me about Article Five

and just the fact that the Founders included

an amendment process altogether,

it seems very humble and farsighted

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?

- [Strauss] They had before them

and were acutely aware of the history

in which efforts to establish governments had failed

and they were really trying to work with that

and make sure they didn't do the same thing.

So they knew what a hard job they were embarking on.

And they made it clear,

there's a famous passage in which James Madison said,

look, we know a lot of these provisions

that we're 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.

Some of them enacted, voted for and got into,

got enacted laws that restricted speech

in ways that we would find 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.

- [Kim] So near the end of Article Five,

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 they're really saying here is,

you can't make any amendments about slavery.