On Amending the Constitution

On Amending the Constitution

This column originally appeared in the Williston Observer on October 28, 2010.

You'll notice an unusual item on your ballot on November 2 - a vote on an amendment to the Vermont Constitution. Its appearance gives me a chance to discuss the long road that an amendment to the Vermont Constitution has to travel, and how widely the procedure varies from amending the United States Constitution.

The process for amending any constitution should not be an easy one - a constitution is the basic law of a political unit, and provides a stable foundation that can be relied on for years, decades, even centuries.

The process of amending the U.S. Constitution has a few different paths, not all of which have been taken.

The most common path is for the Congress to vote, by two-thirds concurrence in both houses, to recommend an amendment. It has never been an easy thing to get a two-thirds vote in Congress, and this high bar reflects the framers' thoughts that changes should only come with broad consensus.

After those votes, however, there is a final stage that can be just as hard to overcome. The amendment is then sent to the states, where three-quarters of them must ratify the amendment.

The states can ratify in one of two ways - by majority votes of each state's legislature (which is most often another two-part hurdle) or, if directed by the amendment itself, by a special ratifying convention called in each state.

This second option may seem like a bit of an end-run around the legislatures, and to some degree it is. However, depending on state law, it is the executive or legislature that must convene the convention, and a determined governor or legislature could refuse to do so or at least drag its heels.

In the case of Vermont, heel-dragging is not an option. The responsibility to convene a convention is given to the governor, who has only 60 days following an amendment proposal to call the convention. The process then involves the voters, who choose 14 people from a list of 28 compiled by the governor, lieutenant governor, and speaker of the house.

The election must take place between three and 12 months after the governor's call, and the convention itself must take place 20 to 30 days after the election. The convention is free to conduct itself in any way it decides, and a majority vote on the proposed amendment, either way, decides the issue.

The convention route for a constitutional amendment has only been used once - to ratify the 21st Amendment, which repealed the 18th Amendment and made liquor again legal in the United States.

The second, unused method for proposing amendments is by a convention of all the states. Many fear what amendments could come out of such a convention, and that fear has, in my opinion, been the main reason that many resist any call for an amendment convention.

Amending the Vermont Constitution is a longer process, by design.

First, amendments may only be proposed every four years, beginning in 1975. The Senate must initiate the process, and must approve the amendment by two-thirds vote. The House must then approve the amendment by a majority vote. The last year an amendment could be proposed was 2007 and the next is 2011.

Once this first hurdle is crossed, the amendment must lay dormant until the next two-year legislative session. The amendment is then taken up again and must be approved by a majority of both houses of the legislature. If those votes are successful, the amendment has one final hurdle - the people.

That is the stage the voting age amendment has reached this year. If a majority of Vermonters approve the amendment, it will become a part of our Constitution; if not, it will have to wait until 2011 for another go.

Both methods have pros and cons. The method used by Vermont would probably be unworkable for an electorate on the scale of the United States, so even though there is value in getting the direct voice of the people, the methods already in place work well enough. The nation needs a way to rapidly change its constitution in a time of crisis, so the built-in speed bumps in the Vermont amendment process could actually be dangerous for the federal constitution.

When you go to the polls next week, be sure not to miss the question on the constitutional amendment presented to you. It is a rare opportunity for you to voice how our constitution should be constructed.