Amending The Constitution

As the world now knows, Californians voted last week to amend their constitution to prevent same sex marriage. Some have wondered if the Pennsylvania constitution can be amended in the same way. Could Pennsylvanians vote to allow warrantless searches, for example?

Pennsylvania has a more complex approach to amending its constitution than does California. Proposed constitutional amendments have to start in the Pennsylvania General Assembly. The proposed amendment must past both the house and the senate by a majority vote. If it passes, the amendment is put aside until the next general election. After the next General Assembly has been elected, this new group of senators and house members must vote again on the proposed amendment. If two successive legislatures vote by majority to approve the proposed amendment, the amendment is listed for voter approval at the next election. If a majority of voters are in favor, the constitution is amended.

An important point here is to remember that states are allowed to offer more and greater protections to their citizens than does the federal government – but they cannot offer fewer. In other words, if Pennsylvania decided to legalize police searches without a warrant, the Constitution of the United States would still prevent those searches.

The process for amending our federal constitution is even more difficult than here in Pennsylvania. A super-majority of two-thirds of both the House of Representatives and the Senate would have to vote in favor of a proposed amendment. If that happened, then three-quarters of the states would need to ratify the proposed amendment (by majority vote) before it would take effect. Getting two-thirds of the Senate to agree on anything is near-impossible, which explains why the federal constitution is so rarely amended.

As a criminal defense attorney, let me offer a comment on all this. I think that it should be difficult – very difficult – to amend the constitution. One of the main functions of the constitution is to protect the rights of the minority from the “tyranny of the majority”. At one point or another, majorities of our population would have voted against many of the rights we now hold so dear – such as no forced confessions, or the right of folks of different races to intermarry.

Criminal defendants are unpopular figures. Many in our great country don’t realize that anyone can be misidentified and charged with a horrible crime. Protecting the rights of accused criminals, and having strong constitutional protections, makes sure that the system functions properly – it protects all of us. Shortsighted majorities may desire to ‘lock em up and throw away the key’ or dispense with many important rights. Thankfully, our law is not ruled by voter majority the way our politics is.

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