00:00:17 Hello and welcome back to the Civic Flame, a podcast where we discuss how the Constitution does, and doesnÕt, shape whatÕs going on in the federal government today. I am Amber Vayo, your host and a Professor of law and policy at Worcester State University. I am back to teaching this week, so the to-do list is about to pile up fast in my world. DonÕt worry, though, IÕll still take time out to bring you into my constitutional radical world! This week, weÕre looking Article V, the process by which we amend, or change, the Constitution. Ever wonder whatÕs up with that and why we need a special big change instead of the kinds of statutory or legislative change than other laws? Well grab a seat by the civic fire because weÕre going to get into it! LetÕs go. 00:00 (transition) 00:01:17 First four articles of the Constitution Unlike Articles 1-3 which establish the branches and structures of government, or Article 4 that talks about what the states owe each other and what the government owes the states, Article V talks about the Constitution itself. It tells us how to change it. 00:01:34 Founders did not think the Constitution would last Remember that the Founders did not believe that the Constitution would last in its original form forever. And of course they didnÕt, right? They were born Englishmen, and even Ben Franklin originally considered himself an Englishman from Pennsylvania but then the whole thing blew up in a Revolution. So, they had the Articles of Confederation and a new government. Then the Articles of Confederation failed, and they wrote a Constitution. Knowing this isnÕt to say Òha ha you guys kept messing it up.Ó It is to say that these were people who knew that governments and legal regimes did not last forever. They also knew, in a way we tend to forget today, that the Constitution was made as a compromise. If you check out the National Constitution CenterÕs Drafting table (thatÕs at constitutioncenter.org) it will actually show you the different historical documents that shaped the sections of the Constitution we have. 00:02:24 McCulloch v Maryland and Constitutional Interpretation YouÕll be able to read about the compromises, the fights, the (as Dr Bailey said in out episode on judicial interpretation) famous disagreements about what the Constitution could and should do. Even those enumerated and implied powers that we talked about back in Article 1 werenÕt clear. In 1819, while many of the people who drafted the Constitution were still alive, a case called McCulloch v MD had to go to the Supreme Court to determine what the limits of CongressÕ powers were. So, there have been lots of disagreements and discussions about the Constitution, and the Founders knew that, just as they knew we might want to change it. 00:03:35 Why did the articles of confederation fail? The Articles of Confederation failed for several reasons, one of which is that the document was almost un-amendable. The threshold for Amendments to too high to be practically accessibleÉthe founders learned the cost of pride by seeing their document fail. They learned a lesson in hubris that many lawmakers could stand to learn: if you want your constitution to last, you have to leave room for people to fix what they think you did wrong. 00:04:10 Thomas Jefferson argued for Constitutional Change: he said the Constitution ÒNot and ill-fitting coatÓ In fact, in 1816 Thomas Jefferson wrote to a friend that ÒSome men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendmentÉBut I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change in circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.Ó 00:05:14 Article 5 of the US Constitution Article 5 says: ÒThe 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.Ó 00:06:20 How we Amend the Constitution The first part lays out the basics: to get an Amendment into the Constitution you need 2/3 of both houses to propose the Amendment and then send it to the state legislatures for ? of them to ratify it. This is the only way any of our 27? Maybe 28? WeÕll talk about that in a minute, have been passed. The other way that we havenÕt done is that 2/3 of the state call a Constitutional Convention. Because weÕve never done this, weÕre not sure how it actually would work. The last time we did anything amounting to a Constitutional Convention was when we threw out the entire Articles of Confederation and then created the current Constitution. The thing we do know is that once an Amendment is added to the Constitution however that happens, it become part of it. Òin 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.Ó So, once it meets the mark of ratification, it becomes Constitutional law. 00:008:23 What about the 28th Amendment? History of the ERA Where this gets to be an interesting question concerns the potential 28th Amendment. Right now, we have, for sure, 27 Amendments to the Constitution. But the 28th has a question mark. The League of Women Voters has a really good web page on this to check out if youÕre interested in specifics. But the basics: In 1972, Congress passed the vote threshold to send the Equal Rights Amendment to the states. But, it put a time limit on it. It said that if it wasnÕt ratified in 7 years, then it would basically be discarded. In 1978, the Congress added 3 years to the time limit. But when that time was up in 1982, only 35 of the 38 states had ratified it. There are and were some questions about whether that timeline was Constitutional, so states just kept on working on it. In 2020, 37 of the 38 states had ratified it, so the Trump AdminÕs Office of Legal Counsel issued a memo saying that the Amendment was no longer valid and states should stop trying to ratify it. If they wanted to ratify it, theyÕd have to go through the whole process again. 00:10:14 Did Biden support the ERA? Not really. However, states kept at it anyway. And in 2020, Virginia Became the final state to ratify the ERA (Equal Rights Amendment). But, the National Archivist did not certify it. And thatÕs basically the last we heard aboutÉfor a minute. In 2022, the Biden AdministrationÕs Office of Legal Counsel sent out a memo saying Congress or the judiciary should consider the status of the ERA. Now, 2022 was when the far right Supreme Court overturned the constitutional right to abortion in Dobbs v Jackson WomenÕs Health. Now, youÕd think that if Biden were serious about the ERA being a part of the Constitution, we would have heard a lot more about it during Dobbs. But we basically heard crickets. Then Biden appoints a new archivist who has a dubious history with whitewashing exhibits that made conservatives uncomfortable, and she said she wasnÕt going to publish the ERA. 00:11:26 There are a lot of non-constitutional people in the ERA debate So, there it went. Now it is important to notice that the Office of Legal Counsel and the Archivist have no place in the Constitution. The states ratified the ERA, so the only question is whether or not the timeline matters. If Biden had been serious about the ERA, he would have made a stink about it when it was useful, but his silence, especially during the Dobbs moment is basically tacit (that is unstated) consent that the ERA wasnÕt something to be used. So, at this point, itÕs gone through the constitutional processes that it needs to. And the only question we should be askingÑwhether that original timeline mattersÑis one weÕre not asking because no one in power wants to get into it. So, thatÕs fun. 00:12:25 The end of Article 5 and equal state suffrage in the Senate and slavery And of course, at the end of Article 5 we get the prohibition on banning slavery: ÒProvided 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;Ó And then saying Òand that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.Ó So another moment where we see a small article with a whole bunch of argument and history behind it. (transition) 00:13:01 The Declaration of Independence says we can overthrow the government At the end of the day, Article 5 speaks back to the Declaration of Independence and the point that the government is meant to serve the people and that the people have the power to get rid of the government itÕs not doing its job. 00:13:57 Government exists to secure rights, says the Declaration of Independence Remember that famous line: ÒWe hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.Ó But then comes the next part of the thought that we somehow keep forgetting: ÒThat to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.Ó The government exists to secure the rights of and serve the people. ThatÕs why they have any power at all, itÕs a tradeoff. We give them the power to do some stuff as long as they uphold the social contract of securing our rights and making things work. Then the Declaration tells us what to do if they donÕt uphold their part of the bargain. ÒThat whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. 00:15:33 The Declaration of Independence warns us about complacency and settling But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.Ó 00:16:19 Change is the basis for the American political system What does this all mean? To me, it means that we need to remember that our system is one where change is not frowned upon. Change is and must be part of our nature. Jefferson says the Constitution is not an ill-fitting coat. I say it is also not a suicide pact. We can make changes to any part of the government, as long as the will of the people are willing to support it. Until we meet again, follow me on Instagram, BlueSky, and Substack at Dr Fun Sponge. Keep the civic flame burning bright and take care out there! Thanks for listening. (outro) 00:17:19 Thank you! The civic flame is a Dr Fun Sponge Media project in collaboration with writer Amber Vayo and sound producer Matt Munyon. Thanks for listening.