There are four ways to pass a Constitutional amendment.
- Two-thirds of both Houses have to agree to propose an amendment, followed by ratification by three-fourths of the state legislatures.
- Two-thirds of both Houses have to agree to propose an amendment, followed by ratification by three-fourths of Conventions called by the states. (Critical point here. Congress can choose to use state legislatures for ratification or use state-called conventions, made up of delegates who are not part of their state legislatures created for the sole purpose of voting on the amendment, to vote on ratification.)
- Two-thirds of the state legislatures must agree to propose a Convention, after which Congress must call together a convention for the states to propose amendments–amendments that need no Congressional approval. The proposed amendments are then sent to the state legislatures for ratification by three-fourths of the state legislatures. (“…on the Application of two thirds of the Legislatures of the several States, [Congress] shall call a Convention for proposing amendments“.)
- Two-thirds of the state legislatures must agree to propose a Convention, after which Congress must call together a convention for the states to propose amendments–amendments that need no Congressional approval. The proposed amendments are then sent to the state legislatures for ratification by three-fourths of the Conventions called by the states.
So far, method three and four have never been used and method one has only been used twenty-six times over 246 years. It’s almost always been, Congress proposes and the state legislatures ratify. Only once has Congress required the ratification process to be done by state appointed Conventions rather than by the state legislatures–method two.
Guess which amendment carries this honor?
Yup, the Twenty-First Amendment.
The Twenty-First Amendment
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
The Twenty-First Amendment
Of all the amendments ratified over the course of 246 years, only one has been used to repeal a previous amendment and only one has used method two to do so.
Needless to say, this amendment is unique.
Congress believed that the amendment wouldn’t make it through state legislatures because of the power the temperance lobby still had over the state legislatures. So, they required that each state assign a group of convention delegates to represent the state and vote on ratification of the amendment.
The Twenty-First Amendment was officially ratified in 1933, fourteen years after the Eighteenth Amendment gave the federal government power to prohibit the “manufacture, sale, or transportation of intoxicating liquors”.
Historical Context
The Eighteenth Amendment has long been a topic of discussion, with some people arguing that it was a clear human rights violation with others contending that it was a failed, though just, attempt to deal with a very dangerous and serious issue the country was facing at the time.
In other words, the states and Congress, with popular support, wrote and ratified the amendment and thus, it was legal and just. OR the amendment was motivated out of racism and prejudice and was therefore unjust, no matter the Constitutionality and legality of it.
Just or unjust, history shows that giving the government so much power over certain issues of human morality was a poor idea. The amendment did slow alcohol consumption a bit, but it exacerbated, even created, other issues in its wake–specifically, the emergence of organized criminals and underground crime syndicates who funded themselves from illegal liquor. These funds were then used to buy off police and other government officials. The consequence of this was an ever-growing federal police force, slowly shifting strictly state level “police powers” to the federal government.
Ideas like the “War on Crime” or the “War on Drugs” become part of the federal government’s “job description”, strengthening federal police power and shifting citizen expectations from local to federal.
It’s an age old debate. How much power over “morality” should the government have? Should there be laws limiting polygamy, murder, theft, domestic violence, public disorder, drug addiction and other vices which can have negative effects on society as a whole? Which, of course, comes down to, what’s government’s job?
This is why it’s so critical that Americans have a clear and theoretically sound expectation of government, as well as a clear, and theoretically sound understanding of government’s job. Otherwise, we’ll fight and whine about government’s behavior while all sharing differing expectations and standards by which to judge its behavior. It’s one thing to share the same expectations while disagreeing on the applications of the expectations, it’s another thing entirely to share different expectations.
They key is, our expectations, right now, should start and stop with the U.S. Constitution. It gives clear guidelines to federal power, while leaving the door open for all other issues to be handled by the states. Meaning that, in this country, the question isn’t only “what’s government job?”, but “which governments’ job?”.
The Eighteenth Amendment gave a clear answer to the question of “morality” and the federal government’s power over it. If preventing murder isn’t even a Constitutionally enumerated federal power, why would anyone expect preventing drunkenness to work at the federal level?
But, that’s the beauty of this Constitutional Republic. We get to let our government try on new powers and revoke them if they fail.
The problem is, we’ve been allowing our federal government to try on new powers ever since the 1930s, but without going about it the Constitutional way.
And friends, that’s arbitrary and those powers can’t be “revoked”.
Time to take a look the Twenty-First Amendment again to remind us of what it looks like to legally, and justly bequeath the federal government with more power and then strip them of it.
The Liberty Belle
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