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  • - [Kim] Hey this is Kim from Khan Academy,

  • 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