By Jaro Kole
Has anyone ever read 16 Am Jur Const law? It would appear many have not. I have, and I have broken it down to make each of the 106 sections easy to read. I will start here with the first 20 sections and post the next 30 or so in another post. READ IT!!! and get each point.
16 Am. Jur. 2d Constitutional Law – §§ 1-20/106
§ 1. Definition and nature of “constitution” and “constitutional law” As used herein, the word “constitution” means a declaration of fundamental laws or principles for the government of a nation or state.1 A constitution represents the supreme written will of the people regarding the framework for their government.2 Where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and it is the paramount authority for all that is done in pursuance of its provisions.3 A constitution thus embodies fundamental values and articulates the citizens’ common aspirations for constitutional governance and the rule of law.4 A state constitution is likewise the supreme written will of the people of a state regarding the framework for their government and is subject only to the limitations found in the Federal Constitution.5 Although a constitution may be either written (as in the case of the United States) or unwritten (as in the case of Great Britain), the word “constitution,” as applied to the organization of our federal and state governments, always implies a written document which is understood to have been enacted by the direct action of the people,6 providing for the form of their government and defining the powers of the several departments within it, thus creating a fundamental law which is absolute7 and unalterable except through amendment by the people from which it emanated.8 Constitutional law, which deals with the interpretation and construction of constitutions and the application of this fundamental law to statutes and other public acts because of the American governmental system, occupies an extremely important position in the jurisprudence of this country, because constitutions in this country, rather than stating inflexible specific rules of conduct, contain broad principles capable of accommodating societal changes.9 Thus, constitutional provisions gather meaning from the experience of the people, and courts should expect that modern society will mold and shape constitutional principles into new and useful forms.10 A Constitution is intended to endure for ages to come, and must adapt itself to a future that can only be seen dimly, if at all. N.L.R.B. v. Noel Canning, 134 S. Ct. 2550 (2014).11
§ 2. Distinction between constitutions and statutes A constitution differs from a statute in that a statute ordinarily provides some details of the subject of which it treats, whereas a constitution usually states broad general principles and builds the substantial foundation and general framework of the law and the government.1 The constitution is the framework of the government containing the general principles upon which the government must function,2 intended not merely to remedy existing conditions, but to govern future contingencies.3 It is a compilation of fundamental laws of the jurisdiction, and embodies principles upon which the jurisdiction’s government was founded.4 A constitution is made for the people and by the people,5 and is, above all, an embodiment of the will of the people,6 deriving its force directly from the people themselves.7 Statutes, by contrast, are enactments and rules for the government of civil conduct, promulgated by the legislative authority of a state.8 Instead of general principles, a statute provides details of the subject of the statute.9 Because constitutions constitute the supreme law, they preempt contrary statutes or rules,10 and stand above legislative law.11 Thus, where a constitution speaks plainly on a particular matter, it must be given force and effect as the paramount law,12 and where a statute or other rule and a constitutional provision are in conflict, the constitutional provision must prevail.13 Observation: It has been said that a constitution is but a higher form of statutory law, so that, for example, the state constitution is looked to where a court is searching for statutory law on a subject, and there is no relevant “statute” per se.14 In any event, both constitutional and statutory principles should be liberally construed to further the goal of allowing the people to express their will.15
CUMULATIVE SUPPLEMENT Cases: The people’s constitutional standards must always prevail over the legislature’s statutory standards, should the latter be lower. Gannon v. State, 319 P.3d 1196 (Kan. 2014). Statute exempting taxicab drivers from minimum wage requirements was repealed when minimum wage amendment to state constitution took effect, not when Supreme Court decided that the amendment impliedly repealed the statute; Supreme Court’s function was to declare what the law was, not to create the law. Nev. Const. art. 15, § 16; Nev. Rev. St. § 608.250(2)(e). Nevada Yellow Cab Corporation v. Eighth Judicial District Court in and for County of Clark, 383 P.3d 246, 132 Nev. Adv. Op. No. 77 (Nev. 2016). Statutes are construed to accord with constitutions, not vice versa. City of Fernley v. State, Dep’t of Tax, 366 P.3d 699, 132 Nev. Adv. Op. No. 4 (Nev. 2016).
§ 3. Characteristics of constitutions The term “constitution” implies an instrument of a permanent1 and abiding nature.2 However, a constitution is intended not merely to meet current conditions but also to govern future ones.3 The United States Constitution is said to be a law for the rulers and the people, equally in war and in peace, and to cover with its shield of protection all classes of persons at all times and under all circumstances.4 Although the permanent nature of a written constitution may at times seem to stand in the way of progress, its stability is intended to protect the people from frequent and violent fluctuations of public opinion5 since the state and federal constitutions are limitations on the power of the people as against the impulses of mere majorities.6 Since it is recognized that the framers of a constitution cannot anticipate conditions which may arise thereafter in the progress of the nation7 or establish all the law which from time to time may be necessary to conform to the changing conditions of a community,8 constitutions traditionally do not deal in details, but enunciate the general principles and general directions which are intended to apply to all new facts which may come into being and which may be brought within these general principles or directions.9 Such generality permits flexibility in construction to meet the changing conditions of society.10
§ 4. Functions or purposes of constitutions The most important purpose of a constitution is to furnish the basis for the government it establishes, that is, to prescribe the permanent framework of the system of government,1 assign to the different departments their respective powers and duties, and establish certain fixed first principles on which the government is founded.2 Thus, the United States Constitution is a primer of fundamental principles for the conduct of a developing federal system rather than a manual of technical rules.3 It has been said that the purpose of the United States Constitution was to take government “off the backs” of the people.4 One important function of a constitution is to safeguard and promote the public welfare.5 The Supreme Court has said that the people of the United States erected their constitutions or forms of government to establish justice, to promote the general welfare, and to secure the blessings of liberty.6 Another of the great purposes of a constitution is to preserve the rights of individual citizens by protecting their lives, liberty, and property.7 To this end, and in order that the constitutional system may be a government of laws and not of men,8 it is customary for constitutions to prescribe and limit the powers of the government9 and thereby to operate as bulwarks of liberty for the protection of private rights.10 Thus, one of the primary functions of a constitution is to protect the people against arbitrary actions by their own government11 or by the courts thereof.12 Indeed, public policy considerations cannot override constitutional mandates.13
CUMULATIVE SUPPLEMENT Cases: The idea of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The government has broad powers, but the means it uses to achieve its ends must be consistent with the letter and spirit of the constitution. Horne v. Department of Agriculture, 135 S. Ct. 2419 (2015). A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way. Horne v. Department of Agriculture, 135 S. Ct. 2419 (2015).
§ 5. Generally The United States is a constitutional democracy.1 The constitutional form of government as it exists in the United States is based on the fundamental conception of a supreme law, expressed in written form,2 in accordance with which all private rights must be determined and all public authority administered.3 Constitutional government by the people represents the greatest and grandest struggles of humanity for its betterment and in its accomplishment marks the uttermost political accomplishment of the human race.4 The limitations imposed by the American system of constitutional law on the action of the governments, both state and national, are deemed to be essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions.5 In the United States, the right of sovereignty is vested in the people6 and is exercised through the joint action of the federal and state governments.7 Upon entering the Federal Union, the states retained all the power and sovereignty of the original states except such as was surrendered to the federal government.8
§ 6. Effect of British constitutional law theory Although there can be no doubt that the United States Constitution is derived in many, if not most, respects from the British “unwritten” constitution, the English Declaration of Rights of 1689,1 and the English common law,2 those who pay great homage to the English common law and its constitutional system sometimes fail to recognize that the essential difference between the English and American Constitutions is not that the English Constitution is unwritten and the American Constitution is written but that the English system is founded on the concept of parliamentary supremacy,3 whereas the American constitutional theory is founded on the concept that sovereignty itself resides with the people.4 Where the people are sovereign, their conception of their constitution exists apart from and above any transient legislative enactments.5 According to the theory of the English Constitution, absolute despotic power must reside somewhere in all governments, and in Britain, this power is entrusted to Parliament.6 The power of the British Parliament is so transcendent that it cannot be confined either for causes or persons within any bounds.7 This principle of the omnipotence of Parliament, however, has not been applied to legislative bodies in America.8 Thus, it is recognized that the Congress of the United States as a legislative body is not vested with judicial powers, as is the British Parliament.9
Observation: The right of the United States Senate to try all federal impeachment cases is nonetheless somewhat reminiscent of the judicial power of the English House of Lords.10 In the United States, the Congress and all of its members, as well as the President of the United States,11 all state12 and federal officials, and all state and federal courts and judges13 are as bound by the United States Constitution as are ordinary citizens.
§ 7. Pre-Constitution national documents: Declaration of Independence; Northwest Ordinance; Articles of Confederation While statements of principles contained in the Declaration of Independence do not have the force of organic law1 and therefore cannot be made the basis of any judicial decision as to the limits of rights and duties, yet it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence,2 and the courts have sometimes referred to the Declaration in determining constitutional questions.3 On July 13, 1787—two years before the Constitution of the United States was adopted—Congress enacted the Northwest Ordinance.4 Captioned “An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio,” this landmark legislation—which was to have a profoundly important effect on the subsequent development of both state and national law—was the fundamental instrument of government for an area covering more than a quarter-million square miles.5 The territory to which the ordinance applied included all of present-day Michigan, Indiana, Illinois, Wisconsin, and Ohio and part of Minnesota.6 The federal courts have generally held that the Ordinance was superseded by the adoption of the Constitution of the United States7 on the ground that the Constitution places all the states of the Union on an equal basis which would not be the case if the Ordinance continued to be in force after the adoption of the organic law.8 Even after the adoption of the Constitution, however, some of the provisions of the Ordinance were continued in force by acts of Congress during the period of the territorial government of the Northwest Territory.9 In both the federal courts and those of the states created out of the Northwest Territory, the doctrine that the Ordinance has been superseded by the state constitution when a new state has been admitted to the Union is adhered to, and no effect is given to that Ordinance except insofar as its principles may have been embodied in the state constitution.10 Following the Revolutionary War, the Articles of Confederation were drafted in 1777 and submitted by the Continental Congress to the state legislatures for approval, but they were not approved by all the states until 1781.11 The newly independent states did not favor a centralized executive authority, and the government ultimately created by the Articles of Confederation amounted to little more than a loose confederation of states that derived its authority from acceptance of the principles of the confederation by the state legislatures through ratification.12 The articles created a government with a single branch of government—a Congress with members appointed by the state legislatures.13 Congress was given the sole and exclusive power to make war and peace, to enter into treaties and other alliances, to coin money, to establish a postal system, to send and receive ambassadors, and to control commerce with the Indian tribes.14 Congress was not given the power to levy direct taxes or to exercise any authority over interstate and foreign commerce.15 Experience with the Articles of Confederation indicated many of its defects, but nevertheless, the convention that convened in May 1787 was to amend the Articles of Confederation rather than to jettison them in favor of a new constitutional document although the convention resulted in a newly drafted (and current) constitution for the United States.16
§ 8. Purpose, application, and effect of United States Constitution The several states were in existence as separate sovereign ties under the Articles of Confederation prior to the adoption of the Constitution of the United States.1 The Constitution brought into being a nation and a closer union rather than a league of separate states.2 Although providing for the common defense is one of the purposes of the Federal Constitution,3 it was not formed merely to guard the states against danger from foreign nations but mainly to secure both union and harmony at home and safety against injustice.4 It was designed for the common and equal benefit of all the people of the United States,5 as well as to create a national economic union.6 The principal features of the American system of government established by the United States Constitution include representative government,7 dual government involving both state and federal aspects,8 the securing of individual rights and liberties through constitutional restrictions,9 and a separation of powers among the legislative, executive, and judicial branches of either government, as well as between the governments themselves.10 The Constitution of the United States was ordained and established not by the states in their sovereign capacities but, as the Preamble to the Constitution declares, by the people of the United States11 and was adopted as their voluntary act for their own protection.12 It was particularly intended to affect individuals rather than states.13 The provisions of the United States Constitution must be given full force and effect throughout the Union14 because it is the supreme law of the land.15 Thus, the Federal Constitution is in reality a part of the constitution of every state and may be so regarded in determining the validity of legislative acts.16 It operates alike on all the states17 and the District of Columbia,18 and, by statute, Congress has also extended specific provisions of the United States Constitution to Guam,19 the Virgin Islands,20 and Puerto Rico.21 Observation: Although Puerto Rico has attained status as a commonwealth, it is still considered a “state” or “territory” for the purpose of various federal statutes.22.
§ 9. State constitutions Under the American system, each state was left free to establish a constitution for itself, and in that constitution to provide such limitations and restrictions on the powers of its particular government as its judgment might dictate.1 A state constitution and the statutes of the state are to be taken together as making one body of law.2 However, a state’s statutory law is subordinate to the state’s constitution,3 inasmuch as the state’s constitution is the supreme or fundamental law of the state4 and is second in that state only to the United States Constitution in importance and precedence.5
§ 10. United States Constitution Adoption of the Constitution of the United States is traceable to the people’s disappointment with the confederation of states which they had formed in the warmth of mutual confidence after the Revolutionary War.1 Experience had made it clear that a national government was required for national purposes.2 Because of this, they determined to establish a federal or national union of states, for the purposes set forth in the Preamble to the Constitution which recites: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”3 The Federal Convention met in 1787 to write the present Constitution of the United States.4 Several drafts of it were presented for the consideration of the Convention.5 In September, 1787, the Convention completed the great work in which it had been engaged and resolved that the Constitution should be laid before the Congress of the United States to be submitted by that body to conventions of the several states to be convened by their respective legislatures.6 The Convention expressed the opinion that as soon as the Constitution should be ratified by the conventions of nine states, Congress should fix a day on which electors should be appointed by the states, a day on which the electors should assemble to vote for President and Vice President, “and the time and place for commencing proceedings under this Constitution.”7 When the conventions of more than nine states adopted the Constitution, Congress, on September 13, 1788, passed a resolution in conformity with the opinions expressed by the Constitutional Convention and appointed the first Wednesday in March of the ensuing year as the day, and the then seat of Congress as the place, “for commencing proceedings under the Constitution.”8 The Constitution went into effect in March of 1789.9 The original version of the United States Constitution sent to the states for ratification in 1787 did not contain a Bill of Rights and did not otherwise address the issue of religious freedom.10 The public demand for protection of their rights was reflected in the various states’ ratifying conventions.11 Most of these conventions called for the inclusion of a Bill of Rights in the United States Constitution and patterned their recommendations after their own constitutions and declarations of rights.12 It is within the power of the people who made the Federal Constitution to unmake it, as it is the creature of their own will and exists only by their will.13
§ 11. State constitutions The various states in the United States have from time to time adopted state constitutions which declare and guarantee the rights and liberties of the individual.1 Governmental authority in each state is vested by the state constitutions in the three great divisions of government: the executive, legislative, and judicial authorities.2 The agencies or departments so created are the agents of the people.3 They are, in general, separate and distinct departments or agencies independent of each other except to the extent that the action of one is made to constitute a restraint upon the others to keep them within proper bounds and prevent hasty and improvident actions.4 Some state constitutions contain a mandatory provision for periodic opportunity for revision by convention.5 Observation: While a state constitution is the basic and supreme law of a state,6 state constitutions cannot subtract from the rights guaranteed by the Federal Constitution, but they can provide additional rights to their citizens.7
§ 12. Generally The exclusive means by which the Federal Constitution may be amended is found in Article V thereof, the adoption of which reflects both the framers’ realization that the Constitution might, in the progress of time and the development of new conditions, require changes, and their intention to provide an orderly manner in which these changes could be accomplished.1 Article V alone confers the power to amend and determines the manner in which the power can be exercised.2 Insofar as it speaks on that subject, it is supreme, and any provision of a state constitution in conflict therewith must be held at naught.3 Article V insures that deliberation and consideration must precede any proposed change in the Constitution4 by specifying that amendments may be proposed by Congress, whenever two-thirds of both houses deem it necessary,5 or by a constitutional convention called by Congress on the application of the legislatures of two-thirds of the states.6 The Article further specifies that an amendment becomes effective as part of the Constitution when ratified by the legislatures of three-fourths of the states or by conventions in three-fourths of the states “as the one or the other Mode of Ratification may be proposed by the Congress.”7 Thus, it can be seen that the Constitution provides two methods of proposing amendments: by the Congress and by convention,8 as well as two methods of ratifying proposed amendments by the states: by their legislatures and by conventions9 but not by referendum or initiative,10 resolution,11 or judicial fiat.12 Observation: While the procedure for amending the Federal Constitution is restricted, there is no restraint on the kind of amendment that may be offered.13 Any question as to whether the amendment procedure stated in Article V has been properly followed is a federal question which necessarily must ultimately be decided by the United States Supreme Court, and state and federal courts are bound by decisions of the Supreme Court as to the validity of amendments to the Constitution.14 An amendment to the Federal Constitution which is duly ratified by three-fourths of the states is effective as against all of the states even as against a state which refused to ratify it.15
§ 13. Proposal of amendments Amendments to the United States Constitution may be proposed by Congress or by a constitutional convention.1 In proposing an amendment to the Constitution, Congress is not acting strictly in the exercise of ordinary legislative power,2 and a congressional resolution proposing an amendment does not require the approval of the President,3 nor is it affected by a presidential veto.4 The U.S. Constitution contains no limit to what Congress can propose in the way of an amendment to the Constitution, except that no state can be stripped of equal suffrage in the Senate without its consent.5 The Supreme Court has thus remarked that an examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments.6 Various amendments have been attacked before the Supreme Court as beyond the power of Congress to propose, but such attacks have always failed.7 In proposing an amendment, Congress need not include an express declaration that the houses both regard it as essential since the joint resolution is sufficient to show that the proposed amendment was deemed necessary.8 Article V also provides that Congress, on the application of the legislatures of two-thirds of the several states, “shall” call a convention for proposing amendments.9 The Supreme Court has interpreted “shall” to mean “must”10 so that the words of this article are peremptory, and nothing in this particular is left to the discretion of Congress.11 However, Congress must of necessity decide whether the conditions exist which give rise to this duty, and it must decide whether the applications for a constitutional convention are valid and when a sufficient number of states have petitioned for a convention.12 A resolution by a state legislature calling for a national constitutional convention to consider a particular amendment to the Constitution has been held to constitute a sufficient “application” to Congress within the requirement of Article V, without the signature of the governor of the state.13
§ 14. Conclusion of amendatory process; notice and proclamation Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States is required to cause the amendment to be published with his or her certificate specifying the states by which the same may have been adopted and that the same has become valid to all intents and purposes as a part of the Constitution of the United States.1 The principle that if a legislative document is authenticated in regular form by the appropriate officials, a court will treat the document as properly adopted is equally applicable to constitutional amendments.2 Thus, a duly authenticated official notice to the archivist that a state legislature or a state convention, having the authority to adopt a resolution ratifying a proposed amendment, has done so is conclusive upon the archivist and, when certified by his or her proclamation, is conclusive upon the courts.3 This rule holds true even where the states have adopted slightly different versions of the amendment.4 The United States Supreme Court will not interfere with the performance by a state of its duty to notify the archivist of its ratification,5 and once a state has officially forwarded its certificate of ratification to the archivist of the United States, there is no longer a controversy susceptible of judicial determination.6 Thus, a private citizen may not maintain a suit in equity to prevent the proclamation and enforcement of a pending and about to be ratified amendment on the ground that it will be void.7 Additionally, after certification, a state court will not, on certiorari, review the validity of the action of a convention called to consider an amendment, the court taking judicial notice of certification by the archivist.8
§ 15. Generally The United States Constitution provides for two methods for ratifying constitutional amendments, namely, by the legislatures of three-fourths of the several states or by constitutional conventions in three-fourths of the states.1 In either case, the Constitution calls for action by deliberate assemblages representative of the people, which action, it is assumed, will voice the will of the people.2 Ratification by a state legislature of a proposed amendment to the U.S. Constitution is not an act of legislation within the proper sense of the word as it is only the expression of the assent of the state to a proposed amendment.3 A state legislature’s function in ratifying a proposed amendment is a federal one4 and transcends any limitations sought to be imposed by the people of the states in the constitutions of those states.5 Thus, a state constitutional provision that no convention or general assembly of the state shall act upon any amendment of the Constitution of the United States proposed by Congress to the several states unless such convention or general assembly shall have been elected after such amendment is submitted has been held invalid as a limitation upon the general assembly in the exercise of its federally derived power.6 Observation: Notification by a state that it has ratified a federal constitutional amendment is binding upon the Secretary of State (now the archivist), and his or her official certification of ratification is conclusive upon the courts.7 Thus, the question of the efficacy of ratifications by state legislatures, in the light of previous rejections or attempted withdrawals, should be regarded as a political question pertaining to the political departments with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment.8 The U.S. Constitution is silent on how ratifying conventions should be called or constituted, and since there is also no governing federal statute, these matters are left to the states.9 In one state, the justices were of the opinion that delegates must be elected from various localities within the state and not at large and not by a group system or party system by which the voter would indicate his or her choice by a cross mark opposite a given group.10 In another state, it was held to be proper to require that electors should vote for groups of delegates who are pledged to vote at the convention as dictated by a referendum.11 Also, under one state constitution, submission of the question of convention or no convention to the voters and the election of delegates in case a majority of votes favor a convention would be valid, but the calling of a convention to pass on a proposed amendment without submitting the question of convention or no convention to a vote would be invalid.12
CUMULATIVE SUPPLEMENT Cases: The power to legislate in the enactment of the laws of a state is derived from the people of the state; ratification of constitutional amendments, however, has its source in the Federal Constitution and is not an act of legislation within the proper sense of the word. U.S.C.A. Const. Art. 5, § 1 et seq. Arizona State Legislature v. Arizona Independent Redistricting Com’n, 135 S. Ct. 2652 (2015).” The legislature” comprises a referendum and a governor’s veto in the context of regulating congressional elections; in the context of ratifying constitutional amendments, in contrast, the legislature has a different identity, one that excludes the referendum and the governor’s veto. Arizona State Legislature v. Arizona Independent Redistricting Com’n, 135 S. Ct. 2652 (2015).
§ 16. By referendum If Congress directs that the ratification of a constitutional amendment proposed by it shall be by state conventions, this confers, by implication, authority on state legislatures to provide for the assembling of such conventions.1 Provision by a state legislature for a convention to pass upon a proposed amendment to the Federal Constitution is not a legislative act.2 Therefore, provisions of state constitutions and statutes requiring a referendum to approve any particular act of the legislature cannot be applied in the process of ratifying or rejecting amendments to the Federal Constitution.3 In other words, voters of the several states are excluded by the terms of Article V from direct participation in the process of amending the Constitution.4 Their participation is restricted to voting for delegates to a ratifying convention.5 Article V of the Constitution was not changed by the 14th Amendment so as to require ratification of amendments by popular vote.6 Some of the state courts have, however, taken the position that an act calling a convention to pass upon an amendment to the United States Constitution is subject to a referendum by the voters of the states as provided by their state constitutions.7 However, a state may not, by initiative or otherwise, compel its legislators to apply for a federal constitutional convention or to refrain from such action.8 Observation: With regard to a proposed amendment to the Federal Constitution which, as provided by Congress and by Article V of the Constitution, is to be ratified by votes of the states’ legislatures, Article V does not rule out communication between the members of a state legislature and their constituents by nonbinding referendum. Since each member of the state legislature is free to obtain the views of constituents in the legislative district which he or she represents, there is no constitutional obstacle to a state statute providing for a referendum on the proposed amendment, so long as it is nonbinding and only advisory on the members of the legislature.9
§ 17. Time In the absence of some stipulated requirement that a proposed amendment to the United States Constitution be ratified by the required number of states within a specified period of time, it would seem that a proposed amendment may be ratified at any time until it is withdrawn from the ratification process.1 Observation: The 27th Amendment to the United States Constitution, for instance, was originally proposed in 1789 but did not obtain the required approval of three-fourths of the states until 1992, 203 years later; yet it was declared ratified in that year by the Secretary of State.2 However, Congress, in proposing an amendment to the Federal Constitution, may, keeping within reasonable limits, fix a definite period for ratification by the states.3 The 18th Amendment, which was proposed in 1917, and all amendments proposed after 1917 have contained seven-year time limits for ratification by the states.4 A state court once held that an attempted ratification of the Child Labor Amendment by the legislature of that state was ineffective because more than a reasonable time had elapsed since it was proposed by Congress.5 Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether by lapse of time its proposal of the amendment has lost its vitality prior to the required ratification, and such determination is not subject to review by the courts.6
§ 18. Rescission or retraction It has been said that, as a historical fact demonstrating the attitude of the federal government, according to their admitted and accepted practice, if a state legislature has once ratified a federal amendment, a subsequent legislature has no power to rescind such ratification.1 Such rescission was attempted by Ohio and New Jersey with reference to the 14th Amendment, and by New York with reference to the 15th; but the proclamation of the Secretary of State for the United States was issued, announcing the final adoption of the amendments as a part of the Federal Constitution, notwithstanding the attempted rescission by subsequent legislatures.2 The attempted rescission was ignored.3 Another state court has held that where a proposed amendment to the Federal Constitution has been rejected by more than one-fourth of the states, and those rejections have been duly certified to the Secretary of State, the proposed amendment must be viewed as having failed of ratification and a state which rejected the proposed amendment may not thereafter change its position and vote in favor of it even if it might have changed its position while the amendment was still before the people.4
§ 19. Generally Constitutional amendment is the legal process by which the people may exercise their inalienable and indefeasible right to alter their government, a right which may be protected by the constitution itself.1 Because it is a power inherent in the people,2 the existence of the power to amend and change state constitutions appears never to have been doubted.3 Observation: An amendment is such a change or addition within the lines of the original instrument as will effect an improvement or better carry out the purpose for which the instrument was framed.4 The word “amendment” is employed to show its relationship to some particular article or some section of a constitution, and it is then used to indicate an addition to the striking out of or some change in that particular section.5 A constitution cannot be changed by any legislative definition or other provision in a mere statute,6 nor may it be amended by either case law or rules of court7 because only the people of the state are vested with the power to amend their constitution, and that power is plenary.8 Constitutions may not be amended by violence.9 Any attempt to revise a constitution or adopt a new one in any manner other than that provided in the existing instrument is almost invariably treated as extraconstitutional and revolutionary.1016 Am. Jur. 2d Constitutional Law § 20
§ 20. Subject matter and permissible scope of amendments Generally speaking, the people of a state may amend their constitution in any way they see fit.1 The paramount act in amending a state constitution is the expression of the popular voice of the people,2 and by the adoption of constitutional amendments, the people may establish laws that the legislature is inhibited to enact.3 Every part of a state constitution, including the preamble,4 may be amended, including the provisions authorizing the making of amendments.5 Further, even a principle that is deeply rooted in the state constitution can be abrogated by constitutional amendment.6 Provisions may be repealed,7 and new articles may be added.8 A proposed amendment may encompass enough to accomplish its purpose even though it affects other provisions of the constitution to that extent, for otherwise, it would not be possible to amend any provision of the constitution if it could not limit, restrict, or modify other provisions of any other article.9 Permissible amendments cover a wide (if not limitless) range of subjects, as, for example, there may, by amendment, be inserted in a state constitution self-operating provisions of a legislative nature;10 an amendment providing that relevant evidence shall not be excluded in any criminal proceeding may be added to a state constitution;11 a provision consolidating a city and county government and authorizing the people to make and thereafter amend a charter for their government may be passed;12 a state constitutional exemption from ad valorem taxes for certain utilities operated by municipal corporations may be repealed by constitutional amendment;13 or the principle of initiative and referendum may be changed.14 A constitutional provision that any amendment may be proposed in either branch of the legislative assembly and referred to the people for approval or rejection permits the proposal of amendments withdrawing privileges conferred upon the people by the state bill of rights.15