Article V - Amending the Constitution

In the more than two hundred years that have passed since the creation of the United States Constitution, it has been amended twenty-seven times. Some amendments provide important protections that stand between the people and the federal government, such as the First Amendment and the rest of the Bill of Rights. Others came at immensely important times in the nation's history. For example, after the Civil War Congress passed the Fourteenth Amendment, one of the equal rights amendments, which granted equal protection under the law for those who were formerly enslaved. Others made changes that we now take for granted as the norm, like the way the Twenty-Second Amendment added term limits for presidents.

The Constitutional amendment process comes from the Constitution itself. The Framers of the Constitution, who debated and wrote the document during the Constitutional Convention, included the amendment process in Article V.

Article V of the U.S. Constitution states:

The 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.

As Article V of the Constitution outlines, amendments may come from members of Congress or from a convention like the one that created the original document. Or, two-thirds of the state legislatures may come together to propose an amendment. However, they cannot fully take effect until state legislatures or state conventions approve them through a process known as ratification. Three-fourths of the states must ratify a constitutional amendment for it to become effective.

How the Constitution Is Amended

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

At the Constitutional Convention, much controversy surrounded the issue of the process by which the document then being drawn should be amended. At first, it was voted that "provision ought to be made for the amendment [of the Constitution] whensoever it shall seem necessary" without the agency of Congress being at all involved.¹ Acting upon this instruction, the Committee on Detail submitted a section providing that upon the application of the legislatures of two-thirds of the states Congress was to call a convention for purpose of amending the Constitution.² Once adopted,³ the section was soon reconsidered on the motion of Framers of quite different points of view. Some worried that the provision would allow two-thirds of the states to subvert the others,⁴ and some thought that Congress would be the first to perceive the need for amendment and that to leave the matter to the discretion of the states would mean that no alterations but those increasing the powers of the states would ever be proposed.⁵ Madison's proposal was adopted, empowering Congress to propose amendments either on its own initiative or upon application by the legislatures of two-thirds of the states.⁶ When this provision came back from the Committee on Style, however, Gouverneur Morris and Gerry succeeded in inserting the language providing for a convention upon the application of the legislatures of two-thirds of the states.⁷

Amendments Proposed by Congress

Few difficulties of a constitutional nature have arisen with regard to this method of initiating constitutional change, the only method, as we noted above, so far successfully resorted to. When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument.⁸ Instead, the House decided to propose them as supplementary articles, a method followed since.⁹ It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals.¹⁰ In the 1920 National Prohibition Cases,¹¹ the Court ruled that, in proposing an amendment, the two Houses of Congress thereby indicated that they deemed revision necessary. The same case also established the proposition that the vote required to propose an amendment was a vote of two-thirds of the Members present—assuming the presence of a quorum—and not a vote of two-thirds of the entire membership.¹² The approval of the President is not necessary for a proposed amendment.¹³

Amendments Proposed by Convention

Because it has never successfully been invoked, the convention method of amendment is surrounded by a lengthy list of questions.¹⁴

• When and how is a convention to be convened?
• Must the applications of the requisite number of states be identical or ask for substantially the same amendment, or merely deal with the same subject matter?
• Must the requisite number of petitions be contemporaneous with each other, substantially contemporaneous, or strung out over several years?
• Could a convention be limited to consideration of the amendment or the subject matter which it is called to consider?

These are only a few of the obvious questions, and others lurk to be revealed on deeper consideration.¹⁵This method has been close to being used several times. Only one state was lacking when the Senate finally permitted the passage of an amendment providing for the direct election of senators.¹⁶Two states were lacking in a petition drive for a constitutional limitation on income tax rates.¹⁷ The drive for an amendment to limit the Supreme Court's legislative apportionment decisions came within one state of the required number, and a proposal for a balanced budget amendment has been but two states short of the requisite number for some time.¹⁸Arguments existed in each instance against counting all the petitions, but the political realities no doubt are that if there is an authentic national movement underlying a petitioning by two-thirds of the states there will be a response by Congress.

Footnotes

1. 1 The Records of the Federal Convention of 1787, at 22, 202–03, 237 (Max Farrand ed., 1937); 2 id. at 85.
2. Id. at 188.
3. Id. at 467–68.
4. Id. at 557–58 (Gerry).
5. Id. at 558 (Hamilton).
6. Id. at 559.
7. Id. at 629–30. Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the state as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum etc. which in Constitutional regulations ought to be as much as possible avoided.
8. 1 Annals of Cong. 433–36 (1789).
9. Id. at 717.
10. Id. at 430.
11. 253 U.S. 350, 386 (1920).
12. 253 U.S. at 386.
13. In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Court rejected a challenge to the Eleventh Amendment based on the argument that it had not been submitted to the President for approval or veto. The Court' s brief opinion merely determined that the Eleventh Amendment was constitutionally adopted. Id. at 382. Apparently during oral argument, Justice Chase opined that [t]he negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution. Id. at 381. See Seth Barrett Tillman, A Textualist Defense of Art. I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 Tex. L. Rev. 1265 (2005), for extensive analysis of what Hollingsworth's delphic pronouncement could mean. Whatever the Court decided in Hollingsworth, it has since treated the issue as settled. See Hawke v. Smith (No. 1), 253 U.S. 221, 229 (1920) (in Hollingsworth, this court settled that the submission of a constitutional amendment did not require the action of the President); INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) (in Hollingsworth, the Court held Presidential approval was unnecessary for a proposed constitutional amendment . . .).
14. The matter is treated comprehensively in C. Brickfield, Problems Relating to a Federal Constitutional Convention, 85th Congress, 1st Sess. (Comm. Print; House Judiciary Committee) (1957). A thorough and critical study of activity under the petition method can be found in R. Caplan, Constitutional Brinkmanship: Amending the Constitution by National Convention (1988).
15. Id. See also Federal Constitutional Convention: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 90th Congress, 1st Sess. (1967).
16. C. Brickfield, Problems Relating to a Federal Constitutional Convention, 85th Congress, 1st sess. (Comm. Print; House Judiciary Committee) (1957), 7, 89.
17. Id. at 8–9, 89.
18. R. Caplan, Constitutional Brinkmanship: Amending the Constitution by National Convention 73–78, 78–89 (1988).