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AMENDING PROCESS

Article V, which stipulates the methods by which the Constitution may be amended, reflects the Framers' attempt to reconcile the principles of the Revolution with their desire for stable government in the future. Early in the constitutional convention of 1787, george mason, of Virginia suggested that inclusion in the Constitution of a specified mechanism for future amendments would help channel zeal for change into settled constitutional processes. "Amendments therefore will be necessary," he said, "and it will be better to provide for them, in an easy, regular and constitutional way than to trust to chance and violence." So viewed, the Article V amendment process is a somewhat conservative rendering of the revolutionary spirit that had claimed for the people an inalienable right to alter or abolish an inadequate government.

The Constitution sets out alternative methods both for proposing and for ratifying amendments. Amendments may be proposed by a two-thirds vote of both houses of Congress, or by a national constitutional convention. All of the amendments proposed thus far in our history have emanated from Congress. To become part of the Constitution, proposed amendments must gain the assent of three-fourths of the states. Article V gives Congress the power to choose whether proposed amendments (including any proposed by a constitutional convention) should be submitted to state legislatures or to state conventions for ratification. Congress has submitted every proposed amendment but one to the state legislatures.

Since 1789, over 5,000 bills proposing amendments to the Constitution have been introduced in Congress. Of these, only thirty-three received the necessary two-thirds vote of both houses of Congress and proceeded to the states for ratification. Twenty-six have been adopted; the remaining seven failed to be ratified. With only a few exceptions, the amendments proposed by Congress have come in clusters; virtually all of them arose during four brief periods.

The first of these periods ran from 1789 to 1804 and produced what may loosely be called the "Anti-Federalist amendments"—the bill of rights, the eleventh amendment, and the twelfth amendment—each of which was, in part, a concession to Anti-Federalist or Jeffersonian interests. More than half a century passed before the Constitution was again amended. In 1865, sixty-one years after adoption of the Twelfth Amendment, Congress proposed and the states ratified the thirteenth amendment, the first of the three reconstruction amendments. The adoption of the fourteenth amendment and the fifteenth amendment followed in 1868 and 1870. A gap of almost another half-century intervened between the Reconstruction amendments and the next four amendments. These last grew out of the Populist and Progressive movements and provided for federal income taxation (the sixteenth amendment, ratified in 1913), direct election of senators (the seventeenth amendment, ratified in 1913), prohibition (the eighteenth amendment, ratified in 1919), and woman suffrage (the nineteenth amendment, ratified in 1920). A fifth Progressive amendment, the child labor amendment, was proposed in 1924 but was not ratified.

Together, the first three periods accounted for all but three of the amendments adopted before 1960. (The only amendments that did not fall into one of these clusters were the twentieth amendment, which limits the lame-duck session of Congress and was adopted in 1933; the twentyfirst amendment, which repealed prohibition and was adopted in 1933; and the twenty-second amendment, which limits the President to two terms in office and was adopted in 1951). A fourth period of amendment activity lasted from 1961 to 1978. During these years, Congress proposed six amendments, four of which were adopted. The twenty-third amendment gave the district of columbia three electoral votes in presidential elections. The twenty-fourth amendment abolished the poll tax for federal elections. The twenty-fifth amendment provided rules for presidential disability and presidential succession. The twenty-sixth amendment lowered the voting age to eighteen for both state and federal elections.

The fights over adoption of these twenty-six amendments, as well as battles over the proposed amendments that failed to be ratified, have produced conflicts over the proper procedures to be followed under the amendment article. The spare language of Article V leaves a number of questions unanswered. Between 1791 and 1931 the Supreme Court had occasion to address some of these issues. Arguments that there are implicit limits on the kind of amendments that may be adopted have not been accepted. In the National Prohibition Cases (1920) the Court rejected the argument that the Eighteenth Amendment (prohibition) was improper because of its interference with the states' exercise of their police power. And in Leser v. Garnett (1922) the Court held that the Nineteenth Amendment's conferral of voting rights upon women was an appropriate exercise of the amendment power, rejecting the contention that "so great an addition to the electorate if made without the State's consent, destroys its autonomy as a political body."

In several decisions, the Court has given a broad reading to the power of Congress to propose amendments. In Hollingsworth v. Virginia (1798) the Court, sustaining the validity of the Eleventh Amendment, held that in spite of the veto clause of Article I, amendments proposed by Congress do not have to be submitted to the President for his signature. In the National Prohibition Cases (1920) the Court held that a two-thirds vote of a quorum of each house (rather than two-thirds of the entire membership) is sufficient to propose an amendment. In Dillon v. Gloss (1921) the Court held that Congress, when it proposes an amendment, has the power to set a reasonable time limit on ratification, and that seven years is a reasonable limit. The Court also rejected in United States v. Sprague (1931) the claim that amendments granting the federal government new, direct powers over the people may properly be ratified only by the people themselves acting through state conventions, and held that the mode of ratification is completely dependent upon congressional discretion. And when Congress does choose to submit an amendment to state legislatures, those legislatures are exercising a federal function under Article V and are not subject to the control of state law. Thus, in Hawke v. Smith (1919) the Court held that a state may not make the legislature's ratification of an amendment dependent upon subsequent approval by a voter referendum.

From 1798 to 1931 the Supreme Court assumed in decisions such as Hollingsworth, Hawke, and Dillon that issues of constitutional law arising under Article V were to be determined by the Court in the ordinary course of judicial review. In coleman v. miller (1939), however, the Court refused to address several challenges to Kansas's ratification of the proposed Child Labor Amendment. Issues such as the timeliness of a ratification and the effect of a state's prior rejection of the validity of its ratification were held to be nonjusticiable questions committed to "the ultimate authority in the Congress of its control over the promulgation of the amendment." The Coleman decision suggests that judicial review is precluded for all issues that might be considered and resolved by Congress when, at the end of the state ratification process, Congress decides whether or not to "promulgate" the amendment.

Critics of the Coleman decision have disputed the Court's conclusion that "congressional promulgation" should preclude the judiciary from resolving challenges to the constitutional validity of an amendment. Critics even question the very notion of "congressional promulgation" as final, necessary step in the amendment process. The text of Article V notes only two stages for the adoption of an amendment: proposal by Congress (or a convention) and ratification by the states. There is no mention of any further action for an amendment to become valid. The Court had expressly held in Dillon v. Gloss (1921) what the language of Article V implies: that a proposed amendment becomes part of the Constitution immediately upon ratification by the last necessary state legislature. No further "promulgation" by Congress (or anyone else) appears to be necessary under Article V.

The only occasion upon which Congress ever undertook, at the end of a ratification process, to "promulgate" the adoption of an amendment was during Reconstruction when Congress passed a resolution declaring the Fourteenth Amendment to have been validly adopted despite disputed ratifications from two states that had attempted to rescind. In deciding Coleman, the Supreme Court treated the isolated Reconstruction precedent as a settled feature of the amendment process and held that congressional promulgation of an amendment would be binding on the Courts. Coleman remains the Court's last word on how disputed amendment process issues are to be resolved. Unless Coleman is reconsidered, any challenges to the validity of the procedures used for amendment will be conclusively determined by the Congress sitting when the required number of ratifications are reported to have been received.

It is difficult to predict how unresolved questions concerning the amendment process might be answered. Among the more warmly disputed issues has been the question of whether a state that has ratified an amendment may validly rescind its ratification. The text of Article V is inconclusive; while it does not mention any right of rescission, such a right might be inferred from the right to ratify. However, most treatise writers and scholars of the nineteenth and twentieth centuries have assumed that ratification was final and rescission ineffective. obiter dictum in Coleman, moreover, suggests that the Court might have affirmatively approved the decision of the Reconstruction Congress to ignore purported rescissions.

Arguments that rescission by a subsequent legislature ought to nullify a state's earlier ratification, or that ratifications should be considered valid only if they are sufficiently close in time to reflect a "contemporaneous consensus" among ratifying states, may reflect, in part, an unstated assumption that it ought to be very difficult to amend the Constitution. But even without a requirement that ratifications must remain unrescinded or must come within a confined period of time, an amendment will not become part of the Constitution as long as one chamber in thirteen of the fifty state legislatures simply does nothing. An amendment proposed by a supermajority of the national Congress, and formally accepted at some time by the legislatures of three-fourths of the states (even if some state legislatures also pass resolutions of "rescission"), has passed the tests Article V expressly requires. As james madison noted in the federalist #43, the amendment article was designed to guard "equally against that extreme facility, which would render the constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults."

To insure that the full range of future constitutional changes would be a viable possibility, the Framers sought to provide some means of constitutional change free of the control of existing governmental institutions. The Framers therefore included alternative mechanisms both for proposing and for ratifying amendments. From the earliest days of the Constitutional Convention, the delegates sought to avoid giving Congress the sole authority to propose amendments. If the proposal of all amendments ultimately depended upon Congress, George Mason argued, "no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case." Other delegates, however, were apprehensive about the threat to national authority if state legislatures could effectively propose and ratify amendments without the involvement of some institution reflecting the national interest.

The solution to this dilemma was the "convention of the people." In addition to providing that amendments could be proposed by Congress, the final version of Article V provides that Congress must call "a Convention for proposing Amendments" whenever two-thirds of the state legislatures apply for one. Such a convention would be, like Congress, a deliberative body capable of assessing from a national perspective the need for constitutional change and capable of drafting proposed amendments for submission to the states for ratification. At the same time it would not be Congress itself, and therefore would not pose the threat of legislative self-interest's blocking needed reform of Congress.

No national convention for proposing amendments has ever been called. In recent years, however, a number of state legislatures have petitioned Congress to call a convention limited to proposing a particular amendment specified by the applying state legislatures. Some scholars consider these applications to be valid and argue that if similar applications are received from two-thirds of the state legislatures Congress should call the convention and seek to limit the convention to the particular amendment (or subject) specified in the state legislative applications. Others argue that such state applications are invalid because they erroneously assume that the agenda of the convention can properly be controlled by the applying state legislatures. These scholars argue that the only valid applications are those that recognize that a convention for proposing amendments is to be free to determine for itself what amendments should be proposed.

In addition to providing the alternative of a national convention for proposing amendments, Article V also provides an alternative method of ratifying amendments. For each amendment (whether proposed by Congress or by a national convention) Congress is free to choose whether to submit the amendment for ratification to state legislatures or to "conventions" in each state. By giving Congress this authority, Article V preserves the possibility of reforms restricting the power of state legislatures. The Constitution itself was submitted to ratifying conventions in each state, rather than to state legislatures. For thirty-two of the thirty-three proposed amendments Congress chose to submit its proposal to state legislatures. But the use of the convention method of ratification is not unprecedented: The Twenty-First Amendment repealing prohibition was submitted by Congress in 1933 to state conventions. Virtually every state chose to have delegates to its ratifying convention elected, and in every state the election of delegates was, for all practical purposes, a dispositive referendum on whether or not to ratify the amendment. In every state the voters' wishes were expeditiously carried out by the slate that had won election. In less than ten months from the time it was proposed by Congress, the amendment was ratified by elected conventions in three-fourths of the states.

The "convention of the people" was a familiar device in the eighteenth century. It now seems archaic, and the use of either a national convention for proposing amendments or state conventions for ratification are at present fraught with uncertainties. The convention device was nonetheless an imaginative effort to address a universal problem of constitution drafting: how to provide the means for future reform of governmental institutions when the only institutions readily available for proposing and approving changes are those already in existence, and possibly in need of reform themselves.

Walter Dellinger
(1986)

Bibliography

Dellinger, Walter 1984 The Legitimacy of Constitutional Change: Rethinking the Amendment Process. Harvard Law Review 97:386–432.

Grimes, Allen P. 1978 Democracy and the Amendments to the Constitution. Lexington, Mass.: Lexington Books.

Gunther, Gerald 1979 The Convention Method of Amending the United States Constitution. Georgia Law Review 14: 1–25.

Orfield, Lester Bernhardt 1942 The Amending of the Federal Constitution. Ann Arbor: University of Michigan Press; Chicago: Callaghan & Co.

Tribe, Laurence H. 1984 A Constitution We Are Amending: In Defense of a Restrained Judicial Role. Harvard Law Review 97:433–445.

Amending Process

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