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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: Change Requires Action, Not Social Media Posts

By Donald Scarinci, August 08 2022 12:18 pm

OPINION

For many teenagers growing up in the shadow of the Vietnam War, government service was a calling.  They viewed it as noble and patriotic.  Social activism was much more than a sedentary entertainment.

Unfortunately, that was in the late 1960’s/early 1970’s.

Today, people post something on social media and then proudly proclaim that they have weighed in and taken a stand.   Many are satisfied with virtual participation in our Democratic Republic rather than active, in-person, door-to-door canvasing and direct dialog with their neighbors.

The U.S. Supreme Court’s recent decisions on controversial issues such as abortion, religion, and gun rights have generated calls for amending the U.S. Constitution. This may be the only way to thwart the Court’s actions and finally resolve these divisive issues. Indeed, four of the 27 amendments to the Constitution, including the 14th Amendment, overturned a U.S. Supreme Court decision.

However, changing our country’s governing document will not be accomplished on social media. It is a lengthy process that could require years of grassroots organization.

Amending the Constitution

Article V of the Constitution provides two paths for amendment. Congress can propose an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, the legislatures in two-thirds of the states can agree to petition Congress to call a constitutional convention.

In either case, a successful proposal must also be ratified by three-fourths of the states (38 of 50 states), either by the state legislature or a special convention. In our current, deeply divided country, this is a daunting task.

The Framers intentionally made the process of amending the Constitution long and difficult, with the goal of ensuring stability. As a result, the Constitution has been amended only 27 times since it was ratified in 1789. All of the amendments have gone through Congress and there has never been a constitutional convention.

The first ten amendments were set forth in the Bill of Rights and approved in 1791, just two years after the original document. The remaining 17 amendments were added over time, some to address issues that the Founders failed to resolve and others to reflect changes in society.

For example, in 1870, in the wake of the Civil War, the 15th Amendment prohibited U.S. citizens from being excluded from the voting process because of race. Later, the 25th Amendment addressed succession questions that arose after the assassination of President John F. Kennedy.

Sometimes, a Constitutional amendment is the only way to definitively undo the actions of the Supreme Court. The 16th Amendment authorized Congress to levy a federal income tax, which was necessary after the Court held in Pollock v. Farmers Loan & Trust Co., 157 U.S. 429 (1895), that a federal tax on dividends and rents violated Article 1 of the U.S. Constitution.

The last two amendments were ratified more recently. In 1971, the 26th Amendment lowered the voting age to 18. In 1992, the 27th Amendment prohibited members of Congress from awarding themselves a pay raise in the current session.

Constitutional Amendments Require Broad Support

Amending the Constitution takes hard work and lots of time, and most efforts fail. In total, more than 11,000 amendments have been proposed since 1789, but only 27 have become part of the Constitution.

It can take a very long time before it is successful. The 27th Amendment was submitted to the states more than two centuries before it was ratified. But the 19th Amendment provides one of the best examples of how long and arduous the process can be.

omen’s suffrage movement began in the 1840s and it took decades of petitions, lobbying, and protests before women finally secured the right to vote. The 19th Amendment was first introduced in 1878, but it took until 1919 for Congress to approve it and send it to the states. Voting in the states was close. On August 18, 1920, the State of Tennessee provided the final approval.

Since a majority of states or members of Congress must all agree to a change in the Constitution, amendments need broad public support that spans political parties and regions of the country. Still, even broad support doesn’t guarantee success. The Equal Rights Amendment, which protects rights for all citizens regardless of sex, was first introduced in 1923 and passed by Congress in 1972. It fell short by three states and recent efforts to resurrect the amendment have failed to gain traction.

While the Constitution doesn’t give citizens a direct role in the amendment process, we still play a vital role. By engaging in petition drives and contacting your Senator or Representative, you can participate by encouraging those with the power to take action. Simply voicing your support on Facebook or Twitter, however, doesn’t get the job done.

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