“Nothing is more likely than that [the] enumeration of powers is defective. This is the ordinary case of all human works. Let us then go on perfecting it by adding by way of amendment to the Constitution those powers which time and trial show are still wanting.”
—Thomas Jefferson to Wilson Nicholas, (1803)
Article V of US Constitution
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Advantages
- Super-majorities ensure against tyranny of the majority
- SCOTUS does often take note of the direction of the public opinion e.g. LGBTQ rights
- Ensure federal and state governments favour a proposal, ensures popular support for any amendment
Disadvantages
- Perpetuates what some see as outdated provisions (e.g. 2nd Amendment)
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Too much informal amendment takes place
- Judges are unelected and unaccountable (to the public)
Examples of amendments
Informal
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Obergefell v. Hodges (2016) – LGBTQ rights
- fundamental right to marry is guaranteed to same-sex couples by Fourteenth Amendment
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Carpenter v. United States (2018) – protection of cell site location information
- accessing historical cell phone location records without a warrant violates 4th amendment
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Dobbs v. Jackson Women’s Health Organisation (2022) – abortion
- Constitution does not confer a right to abortion