How is federalism in the amendment process

The Constitution provides Congress not only enumerated powers, but also the ability to pass laws to make such powers effective. While such a power might have been implied of necessity even without an explicit textual basis in the Constitution, the Founding Fathers specifically included congressional authority to "make all Laws which shall be necessary and proper" 73 to effectuate its powers.

Although the extension of congressional power under this clause is not an independent basis for legislation, the provision has been integral to a broad interpretation of other congressional powers. For instance, as discussed below, the expansive nature of modern Commerce Clause doctrine may actually be a reflection of Necessary and Proper Clause jurisprudence. Sometimes, the Court's reliance on the Necessary and Proper Clause in a particular case is only briefly noted, or may even exist sub silentio.

For instance, the majority opinion in the case of Gonzales v. Raich discussed above emphasized that, in evaluating the scope of Congress's authority under the Commerce Clause to regulate medicinal marijuana, the Court need only find that Congress had a "rational basis" to find a link between the legislation and the Commerce Clause.

The Court then went on to note that in such cases "Congress was acting well within its authority to 'make all Laws which shall be necessary and proper' to 'regulate Commerce This passing reference to the Necessary and Proper Clause may obscure its historical significance to Commerce Clause litigation.

Writing in concurrence in Raich , Justice Scalia argued that it is more accurate to characterize the expansive "substantial effects" prong of Commerce Clause analysis as predominantly based on the Necessary and Proper Clause. He noted that the current description of the "substantial effects" prong is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone.

Rather, "as this Court has acknowledged Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce including activities that have a substantial effect on interstate commerce derives from the Necessary and Proper Clause. Another area where the Court has provided a similarly broad interpretation of an Article I congressional power based on the Necessary and Proper Clause is the Spending Clause.

The defendant, who was convicted of attempting to bribe a city councilman to facilitate the building of a hotel and retail structure in Minneapolis, argued that the statute in question had no federal nexus. The Court rejected this argument, holding that Congress's authority under the Spending Clause, when supplemented by the Necessary and Proper Clause, allowed Congress to ensure that federal dollars not be diverted or undermined by corruption.

The Court held that it was not important if the federal funds received by the governmental entity in question were not directly involved in a particular scheme, because "money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value.

An even more expansive interpretation of the Necessary and Proper Clause, in this case as applied to the entire federal criminal penal system which derives from a variety of congressional powers , is found in the Court's opinion in United States v.

The statute contained no requirement that the threatened future conduct would fall under federal jurisdiction, raising the question of what constitutional basis could be cited for the enforcement of the statute.

The majority opinion in Comstock upheld the statute after considering five factors: 1 the historic breadth of the Necessary and Proper Clause; 2 the history of federal involvement in this area; 3 the reason for the statute's enactment; 4 the statute's accommodation of state interests; and 5 whether the scope of the statute was too attenuated from Article I powers.

Maryland , 81 where the Chief Justice wrote: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

Previous federal involvement in the area included not only the civil commitment of defendants who were incompetent to stand trial or who became insane during the course of their imprisonment, but, starting in , the continued confinement of those adjudged incompetent or insane past the end of their prison term.

In upholding the sex offender statute, the Court found that protection of the public and the probability that such prisoners would not be committed by the state represented a rational basis for the passage of such legislation. The Court further found that the state interests were protected by the legislation, as the statute provided for transfer of the committed individuals to state authorities willing to accept them. Finally, the Court found that the statute was not too attenuated from the Article I powers underlying the criminal laws which had been the basis for incarceration, as it related to the responsible administration of the United States prison system.

Another significant source of congressional power is Section 5 of the Fourteenth Amendment. The Fourteenth Amendment provides that states shall not deprive citizens of "life, liberty or property" without due process of law nor deprive them of equal protection of the laws. Section 5 provides that Congress has the power to legislate to enforce the amendment. The Fourteenth Amendment represented a significant shift of power in the nation's federal system.

Until the passage of the Fourteenth Amendment, the Constitution was limited to establishing the powers and limitations of the federal government. However, the amendments passed immediately after the Civil War the Thirteenth, 82 Fourteenth, and Fifteenth 83 Amendments , dramatically altered this regime. Passage of these amendments subjected a state's control over its own citizens to oversight by either the federal judiciary or Congress.

The most significant impact of the Fourteenth Amendment has been its implementation by the federal courts, as state legislation came under scrutiny for having violated due process or equal protection. However, Congress has also seen fit to exercise its power under the Fourteenth Amendment to address issues such as voting rights and police brutality.

The scope of Congress's power under Section 5 of the Fourteenth Amendment, however, has been in flux over the years. In Katzenbach v. Morgan , 84 the Court held that Section 5 of the Fourteenth Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment as defined by the courts, but to help define its scope.

In Katzenbach , the Court upheld a portion of the Voting Rights Act of that barred the application of English literacy requirements to persons who had reached 6 th grade in a Puerto Rican school taught in Spanish. In upholding the statute, the Court rejected the argument that Congress's power to legislate under the Fourteenth Amendment was limited to enforcing that which the Supreme Court found to be a violation of that amendment.

Rather, the Court held that Congress could enforce the Fourteenth Amendment by "appropriate" legislation consistent with the "letter and spirit of the constitution. The rationale for this holding appears to be that Congress has the ability to evaluate and address factual situations that it determines may lead to degradation of rights protected under the Fourteenth Amendment.

This is true even if a court would not find a constitutional violation to have occurred. In fact, what the Court appeared to have done was to require only that Congress establish a rational basis for why the legislation was necessary to protect a Fourteenth Amendment right.

Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. Mitchell , 85 the Court struck down a requirement that the voting age be lowered to 18 for state elections. In prohibiting Congress from dictating the voting age for state elections, a splintered Court appears to have supported Congress's power to pass laws that protect Fourteenth Amendment rights against state intrusions, but rejected the ability of Congress to extend the substantive content of those rights.

As year-olds are not a protected class under the Fourteenth Amendment, the Court found that Congress was attempting to create, rather than protect, Fourteenth Amendment rights.

More recently, in the case of Flores v. For many years prior to the passage of RFRA, a law of general applicability restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of the First Amendment, had to be justified by a compelling governmental interest.

However, in the case of Oregon v. Smith , 87 the Court had lowered this standard. The Smith case involved members of the Native American Church who were denied unemployment benefits when they lost their jobs for having used peyote during a religious ceremony. The Smith case held that neutral generally applicable laws may be applied to religious practices even if the law is not supported by a compelling governmental interest.

RFRA, in response, was an attempt by Congress to overturn the Smith case, and to require a compelling governmental interest when a state applied a generally applied law to religion. The City of Boerne case arose when the City of Boerne denied a church a building permit to expand, because the church was in a designated historical district. The church challenged the zoning decision under RFRA. The Supreme Court reiterated that Section 5 of the Fourteenth Amendment gave Congress the power to enforce existing constitutional protections, but found that this did not automatically include the power to pass any legislation to protect these rights.

Instead, the Court held that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end. For instance, the Court's decision in Katzenbach v. Morgan of allowing the banning of literacy tests was justified based on an extensive history of minorities being denied suffrage in this country. In contrast, the Court found no similar pattern of the use of neutral laws of general applicability disguising religious bigotry and animus against religion.

The law focused on no one area of alleged harm to religion, but rather just broadly inhibited state and local regulations of all types. The scope of the enforcement power under Section 5 of the Fourteenth Amendment also has become important in cases where the Court has found that Congress has overreached its power under other provision of the Constitution, or is limited by some provision thereof.

For instance, as discussed in detail below, the Supreme Court has held that the Eleventh Amendment and state sovereign immunity generally prohibit individuals from suing states for damages under federal law. For instance, a significant amount of federal legislation is clearly supported by the commerce clause, but it might not be supported under Section 5. Recently, the Court decided two cases that illustrate the difficulties of establishing Fourteenth Amendment authority for such legislation.

In College Savings Bank v. The New Jersey savings bank had developed a patented program where individuals could use a certificate of deposit contract to save for college. The state of Florida set up a similar program, and the College Savings Bank sued Florida for false and misleading advertising under a provision of the Trademark Act of Lanham Act , 91 alleging that Florida had made misleading representations about its own product.

The Court first noted that under Seminole Tribe of Florida v. Florida , Article I, powers such as the power to regulate commerce were insufficient to abrogate Eleventh Amendment immunity. Thus, the Court next considered whether the Lanham Act could be characterized as an exercise of Congress's power under Section 5 of the Fourteenth Amendment.

Although the Fourteenth Amendment provides that no state shall "deprive a person of As the Court found that Congress had not established an authority under the Fourteenth Amendment to abrogate the state's immunity, the College Savings Bank could not proceed against the state of Florida for unfair trade practices.

Even if a property interest is established, it would still need to be determined that Congress had the authority to protect that property interest under the Fourteenth Amendment. College Savings Bank , 92 the Court, in a decision concerning the same parties as the case discussed above, considered whether the College Savings Bank could sue the state of Florida for patent infringement. Congress had passed a law specifically providing that states could be sued for patent violations, 93 citing three sources of constitutional authority: the Article I Patent Clause, 94 the Article I Interstate Commerce Clause, 95 and Section 5 of the Fourteenth Amendment.

As the Court had previously precluded abrogation of sovereign immunity through the exercise of Article I powers, the question became whether Congress had the authority to pass patent legislation under Section 5 of the Fourteenth Amendment. Unlike the previous case, the Court found that, under a long line of precedents, patents were considered property rights.

However, the Court had to further consider whether the protection of such a property right under Section 5 of the Fourteenth Amendment was "appropriate" under its ruling in City of Boerne. Consequently, the Court evaluated whether a federal right to enforce patents against states was appropriate remedial or preventive legislation aimed at securing the protections of the Fourteenth Amendment for patent owners.

Specifically, the Court sought to evaluate whether unremedied patent infringement by states rose to the level of a Fourteenth Amendment violation that Congress could redress. The Court noted that Congress had failed to identify a pattern of patent infringement by the states, and that only a handful of patent infringement cases had been brought against states in the last years.

The Court also noted that Congress had failed to establish that state remedies for patent infringement were inadequate for citizens to seek compensation for injury. In fact, the state of Florida argued that no constitutionally based violation had occurred, as it had procedures in place that would provide the necessary due process for patent infringement by the state to be challenged.

Consequently, the Court found that the exercise of Section 5 of the Fourteenth Amendment in this context would be out of proportion to the remedial objective. The Court engaged in a similar analysis, with like results, in evaluating the application of age discrimination laws to the states. In Kimel v. Florida Board of Regents , 96 the Court noted that the Age Discrimination in Employment Act of , while a valid exercise of Congress's commerce power, could not be applied to the states unless Congress also had the power to enact it under Section 5 of the Fourteenth Amendment.

The Kimel Court held, however, that age is not a suspect class, and that the provisions of the ADEA far surpassed the kind of protections that would be afforded such a class under the Fourteenth Amendment. Further, the Court found that an analysis of Congress's ability to legislate prophylactically under Section 5 required an examination of the legislative record to determine whether the remedies provided were proportional and congruent to the problem.

A review by the Court of the ADEA legislative record found no evidence of a pattern of state governments discriminating against employees on the basis of age. Garrett , 97 again with similar result. In Garrett, the Court evaluated whether two plaintiffs could bring claims for money damages against a state university for failing to make reasonable employment accommodations for their disabilities; one plaintiff was under treatment for cancer, the other for asthma and sleep apnea.

Although disability is not a suspect class and thus discrimination is evaluated under a rational basis test, the Court had previously shown a heightened sensitivity to arbitrary discrimination against the disabled. However, the Supreme Court declined to consider evidence of discrimination by either the private sector or local government, and dismissed the examples that did relate to the states as unlikely to rise to the level of constitutionally "irrational" discrimination.

Ultimately, the Court found that no pattern of unconstitutional state discrimination against the disabled had been established, and that the application of the ADA was not a proportionate response to any pattern that might exist. However, the Court reached a different conclusion in the case of Nevada Department of Human Resources v. The FMLA requires employers to provide employees up to 12 weeks of unpaid leave to care for a close relative with a "serious health condition. The Court found that Congress had established significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by the states, and that history was sufficient to justify the enactment of the legislation under Section 5.

The standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than the rational-basis test, such was at issue in Kimel and Garrett , so it was easier for Congress to show a pattern of state constitutional violations.

Even where the Eleventh Amendment and state sovereign immunity are not at issue, the Court may be asked to consider whether the Fourteenth Amendment establishes a sufficient basis for a federal law that does not appear to have a constitutional basis elsewhere in the Constitution. For instance, in United States v. Morrison , discussed previously, the Court found that Congress, in creating a federal private right of action for victims of gender-motivated violence, had exceeded its authority under the Commerce Clause.

Consequently, the plaintiff in that case made the alternate argument that the federal private right of action could be sustained under Section 5 of the Fourteenth Amendment. Indeed, it was not until the Supreme Court ruled in Gitlow v.

New York that the Court began a systematic application of the Bill of Rights to the states and other subnational governments through a judicially constructed due process understanding of rights protected by the Fourteenth Amendment, which was ratified after the Civil War in But states had constitutions, statutes, and common law practices that predated the First Amendment and provided a broad area in which states could address policy in areas prohibited to the national government and could protect individual liberties from government interference.

In their constitutions, Virginia, Pennsylvania, Maryland, Delaware, and North Carolina all provided for enumerations of rights such as those found in the Bill of Rights.

These rights-based protections were later included in the constitutional preambles of Vermont, Massachusetts, and New Hampshire, and in the constitutional provisions of New York, New Jersey, South Carolina, and Georgia. As the Union grew during the two centuries after the founding, state constitutions increasingly included enumerations of rights. Even today, some states are more active than the national government in protecting individual rights. For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments.

By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.

Daniel J. Elazar and other federalism scholars have observed that the states serve as laboratories for policy experimentation and for addressing the often unique needs arising from local and regional diversity. Even after a century of nationalizing policy authority, the states play a significant, meaningful, and constitutionally guaranteed role in the intergovernmental policy process that both affirms and extends the rights and limitations in the First Amendment and Bill of Rights.

Today, 38 State legislatures must approve an amendment for it to become a part of the Constitution. Informal amendments, unlike formal amendments which change the written word of the Constitution, are changes not affecting the written document. This vital process of constitutional change by means other than formal amendment has taken place—and con- tinues to occur—in five basic ways: through 1 the passage of basic legislation by Congress; 2 actions taken by the President; 3 key decisions of the Supreme Court; 4 the activities of polit- ical parties; ….

A formal change is called an amendment, or addition. To amend the Constitution, it has to be voted on by both houses of Congress by a two-thirds majority.

If approved, it becomes a formal proposal, and is sent to the state legislatures to be ratified. Begin typing your search term above and press enter to search.

Press ESC to cancel. A case can be made that the earliest constitutional amendments did matter. That would include the Bill of Rights, for example, and the Twelfth Amendment , which fixed a problem in the way the President and Vice President were originally chosen. And several amendments have been useful housekeeping measures, like the Twenty-Fifth Amendment , which says what happens if the President is disabled.

But if you really want to understand how the United States Constitution changes—in practice, not just on paper—constitutional amendments are a small part of the story. The real action—in many ways, our real Constitution—is elsewhere, in the way the courts, Congress, the President, and the people in their daily lives have brought us the Constitution we have today. The amendment process, however, has been criticized for having two defects.

One is that it is too strict and therefore makes it too difficult to enact amendments. The other is that it is biased in favor of the federal government and therefore does not allow amendments that would limit the national government.

If the original meaning were consistently followed, both of the defects would be eliminated. Some critics of originalism argue that the amendment process is too strict because it is difficult to secure approval by two-thirds of both Houses of Congress and three-quarters of the states. Therefore, these critics contend the Supreme Court should engage in nonoriginalist judicial interpretation to allow for modern circumstances and values to be incorporated into the Constitution.

The amendment process, however, is not too strict to allow for constitutional change. It is true that the process does require amendments to be supported by a consensus. See John O. Rappaport, Originalism and the Good Constitution The problem is not that the constitutional amendment process requires a consensus but that the Supreme Court often intervenes before a consensus can emerge.

A consensus often takes a long time to develop. As a result, no amendment will be enacted, since the Court has already made a change. By contrast, if the original meaning were followed, the amendment process would have the opportunity to enact changes in the Constitution that are supported by a consensus. This analysis helps to explain why so much constitutional change has occurred in the last three generations through judicial interpretation rather than the amendment process.

For example, during the New Deal, the Roosevelt Administration did not attempt to pass constitutional amendments to give the federal government more regulatory power. Instead, it attempted to pack the Supreme Court. There seems little doubt that the nation would have supported an amendment that conferred additional regulatory powers, but there is a good chance that the consensus requirement would have meant the federal government would have received less power than the Court eventually granted it.

A second problem with the amendment system is that its current operation is biased in favor of the federal government. The Constitution provides two methods for proposing amendments. While all of the existing amendments have been enacted through the congressional proposal method, in which two-thirds of each House of Congress proposes an amendment, no amendment has ever passed through the convention method. Under that method, two-thirds of the state legislatures can apply for Congress to call a convention that would then decide whether to propose an amendment.

The convention method was an essential part of the original Constitution. The drafters of the Constitution recognized that the congressional proposal method was controlled by the federal government. Consequently, it could not be relied upon to reform federal governmental abuses. The drafters therefore placed the convention method into the Constitution, since this method largely bypasses the federal government.

Michael B. Commentary 53