Constitutional Amending Process

Constitutional Amending Process Article V of the Constitution provides for a two‐step amending process with two alternatives. Amendments may be proposed by two‐thirds majorities in both houses of Congress or by a special convention called at the request of two‐thirds of the state legislatures. Amendments are then ratified by three‐fourths of the state legislatures or by special state conventions, depending on congressional specification. Despite thousands of proposals in the nation's history, only thirty‐three have been approved by Congress, and only twenty‐seven have been ratified. To date, no convention for proposing amendments has been called. Only one amendment—the Twenty‐first, repealing national alcoholic prohibition as established by the Eighteenth—has been ratified by state conventions. The amending process has been used in four instances—the Eleventh, Fourteenth, Sixteenth, and Twenty‐sixth—to overturn or modify judicial decisions (see Reversals of Court Decisions by Amendment).

A formal amending mechanism is a New World invention and logical complement to a written Constitution where constitutional reforms cannot simply be enacted by the legislative branch. Having just been through a revolution, the former colonists were aware of the need for peaceful alternatives that provided for necessary changes. Hence, a number of early state constitutions provided for amending mechanisms, some entrusting such power to the legislature and others to special conventions. Under the Articles of Confederation, however, state unanimity was required, and this wooden provision was subsequently bypassed by the Constitutional Convention that met in 1787.

Delegates to the Constitutional Convention generally agreed on the need for an amending mechanism, but they differed over who should institute changes and by what majorities. The result was a mechanism that entrusted Congress with the role of proposing amendments and the states with the task of ratifying them. The alternate convention mechanism was included in case Congress proved unresponsive to perceived needs. James Madison defended the amending process in The Federalist as a federal mechanism that guarded “equally against that extreme facility, which would render the Constitution too mutable, and that extreme difficulty, which might perpetuate its discovered faults” (Rossiter, ed., 1961, p. 278).

Article V contained two entrenchment clauses. One, designed to safeguard the provision permitting the importation of slaves for twenty years, is no longer in force (see Slavery). The second proviso, prohibiting states from being deprived of their equality in the Senate without their consent, is presumably still valid. Questions about whether there were additional unstated limits on the substance of amendments surfaced in connection with Amendments Fifteen through Twenty‐one, but the Court rejected the state sovereignty arguments in such cases as the National Prohibition Cases (1920) and United States v. Sprague (1931). More recently, some scholars have argued that courts might have power to void amendments that would take away certain fundamental guarantees of rights, but since no such amendments have been adopted, this theory, which critics believe could set the judicial branch above the people, remains untested.

Most amendments have been ratified relatively quickly—excluding the Twenty‐seventh Amendment, the average is about two and a half years—but the Constitution specifies no time limits. In Dillon v. Gloss (1921), the Court ruled that ratification should be soon enough to express a contemporary consensus of the states. Although the Court had settled this and other issues (such as the determination in Hollingsworth v. Virginia, 1798, that the president's signature was not needed for amendments and in Hawke v. Smith, 1920, that a state could not predicate ratification on approval by a popular referendum), the much criticized opinion in Coleman v. Miller (1939) subsequently stated that issues surrounding amendments were “political questions,” appropriate for legislative resolution only. Amendments Twenty through Twenty‐two contained seven‐year limits within their texts. The proposed Equal Rights Amendment, by contrast, contained the same limits in its authorizing resolution. In a highly debated move, proponents subsequently extended the ratification deadline by thirty‐nine additional months, although Congress still failed to ratify the amendment. By contrast, in 1992 the requisite number of states putatively ratified a proposal affecting the timing of congressional pay raises that had been proposed in 1789 as part of the original Bill of Rights, and Congress approved it by overwhelming majorities. The notion of contemporary consensus, in contrast to more formal models that would limit scrutiny to the simple words of the Constitution, suggests that states might rescind ratification of pending amendments, just as they currently can approve amendments they previously rejected. In Idaho v. Freeman (1981), a U.S. district court sanctioned a state's attempt to rescind ratification of the Equal Rights Amendment after its deadline was extended by Congress. A similar controversy arose during ratification of the Fourteenth Amendment. Although Congress counted the rescinding states, their votes were unnecessary for ratification. Allowing states to rescind would make rescinding amendments parallel to ratifying them and would better guarantee a contemporary consensus. Such a procedure would also introduce greater uncertainty into an already arduous process.

Many questions about the amending process have centered on the unused convention mechanism. Most nineteenth‐century petitions called for general conventions, whereas most twentieth‐century calls have been for single issue concerns like income tax limitation in the 1950s, reapportionment in the 1960s (see Fair Representation), prayer in school (see School Prayer and Bible Reading), busing, federal deficit limitations, or abortion in the 1970s and 1980s. The proposal for a convention to reverse the Court's stance on apportionment fell but one state short, and the balanced budget convention also came quite close. Congressional legislation has been proposed on the convention issue but never passed, thus leaving numerous unanswered questions.

Two prominent issues, presumably left to congressional judgment, are how long petitions for amendments should remain in force and how similar in content they should be to constitute a valid call for a convention. These issues are complicated by controversy over whether a convention can or cannot be limited to a single issue, with proponents of conventions generally arguing that they can and opponents that they cannot. Those who believe a convention can be limited tend to rely on legislative and/or judicial control or on oaths to be taken by members of a convention, whereas those thinking a convention cannot be limited generally agree that a convention would set its own agenda. Despite widespread fears of a “runaway” convention, a convincing case can be made that there are adequate legal and political safeguards—including the requirement for subsequent state ratification—against such a contingency.

Recently, it has been argued that the provisions in Article V are not exclusive and that amendments might also be proposed and/or adopted by referendum or other means. There is little evidence, however, that the framers intended for there to be unstated means of formal constitutional change. In Cook v. Gralike (531 U.S. 510 [2001]), the Supreme Court ruled that states, in this case Missouri, had no right to instruct its representatives to vote for a congressional term limit amendment or note on the ballot when its representatives failed to do so.

Alterations have been proposed that would make the amending process easier and/or more democratic. The adoption of only twenty‐seven amendments in more than two hundred years underscores the difficulty of the current process, although periods of reform during which clusters of amendments have been ratified also demonstrate that such changes often spring from strong currents of social, economic, and political change.

See also Constitutional Amendments.

Bibliography

Kris E. Palmer, ed., Constitutional Amendments: 1789 to the Present (2000).
John R. Vile , Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002, 2d ed. (2003).
John R. Vile , Proposed Amendments to the U.S. Constitution, 1787–2001, 3 vols. (2003).

John R. Vile