Article Five of the United States Constitution
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Article Five of the United States Constitution describes the process whereby the Constitution may be altered. Altering the Constitution consists of proposing an amendment or amendments and subsequent ratification.
Amendments may be adopted and sent to the states for ratification by either:
- Two-thirds (supermajority) of both the Senate and the House of Representatives of the United States Congress;
- By a national convention assembled at the request of the legislatures of at least two-thirds (at present 34) of the states.
To become part of the Constitution, an amendment must be ratified by either (as determined by Congress):
- The request of legislatures of three-fourths (at present 38) of the states;
- State ratifying conventions in three-fourths (at present 38) of the 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.
Procedure for amending the Constitution
Thirty-three amendments to the United States Constitution have been approved by the United States Congress and sent to the states for ratification. Twenty-seven of these amendments have been ratified and are now part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states and are not part of the Constitution. Four of these amendments are still technically open and pending, one is closed and has failed by its own terms, and one is closed and has failed by the terms of the resolution proposing it (though this is in dispute). There have been many other proposals for amendments to the United States Constitution. Approximately 11,539 measures have been introduced in Congress since 1789, only to die in committee or on the floor of the House or Senate, and were therefore not sent to the states for ratification.
Whenever they "shall deem it necessary", two-thirds of both houses of Congress may "propose amendments". This means two-thirds of those members present—assuming that a quorum exists at the time that the vote is cast—and not necessarily a two-thirds vote of the entire membership elected and serving in the two houses of Congress. It was suggested that the two houses first adopt a resolution indicating that they deem an amendment necessary, but this procedure has never been used—the U.S. Senate and the U.S. House of Representatives instead directly proceed to the adoption of a joint resolution, thereby proposing the amendment with the implication that both bodies deem the amendment to be "necessary". Up to now, all amendments have been proposed and implemented as codicils appended to the main body of the Constitution.
If at least two-thirds of the legislatures of the states so request, Congress is required to call a convention for the purpose of proposing amendments. This provision, many scholars argue, checks the power of the Congress to limit potential constitutional amendments.
The state legislatures have, in times past, used their power to apply for a national convention in order to pressure Congress into proposing the desired amendment. For example, the movement to amend the Constitution to provide for the direct election of U.S. Senators began to see such proposals regularly pass the House of Representatives only to die in the Senate from the early 1890s onward. As time went by, more and more state legislatures adopted resolutions demanding that a convention be called, thus pressuring the Senate to finally relent and approve what later became the Seventeenth Amendment for fear that such a convention—if permitted to assemble—might stray to include issues above and beyond just the direct election of U.S. Senators.
The President has no formal role in the constitutional amendment process. Article One provides, "every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be re-passed by two thirds of the Senate and House of Representatives". As previously stated, the Constitution requires the concurrence of at least two-thirds of the members present of both the House of Representatives and the Senate to a joint resolution which proposes a constitutional amendment. In Hollingsworth v. Virginia (1798), the Supreme Court held that it is not necessary to place constitutional amendments before the President for signature and, by the same logic, the President is powerless to veto a proposed constitutional amendment.
Ratification of amendments
After being officially proposed, either by Congress or a national convention of the states, a constitutional amendment must then be ratified by the legislatures of, or by ratifying conventions, in at least three-fourths of the states. Of the 27 amendments to the Constitution that have been ratified, Congress has specified the state conventions ratification method for only one: the 21st Amendment, which became part of the Constitution in 1933. Most states hold elections specifically for the purpose of choosing delegates. New Mexico provides, by state law, that the members of its legislature be the delegates at such a state ratification convention.
Although a proposed amendment is effective after three-fourths of the states ratify it, states have, in many instances, ratified an amendment that has already become law, often for symbolic reasons. The states unanimously ratified the Bill of Rights; the Thirteenth Amendment, abolishing slavery; the Fourteenth Amendment, providing for equal protection and due process; the Fifteenth Amendment, prohibiting racial discrimination in voting; and the Nineteenth Amendment, granting women a federal constitutional right to vote. In several other amendment cases, the ratification process took over a century.
Deadline imposed on ratification process
The Constitution does not expressly provide for a deadline on the state legislatures' or state ratifying conventions' consideration of proposed amendments. In Dillon v. Gloss (1921), the Supreme Court affirmed that Congress—if it so desires—could provide a deadline for ratification, writing:
We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.
In the aforementioned Coleman v. Miller decision, the Supreme Court modified Dillon considerably, holding that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment. For example, the Twenty-seventh Amendment was proposed in 1789 and ratified more than 200 years later in 1992. On May 20, 1992, both houses of Congress adopted concurrent resolutions accepting the 27th Amendment's unorthodox ratification process as having been successful and valid.
Beginning in 1917, Congress has usually—but not always—imposed deadlines on proposed amendments. The limitation originally took the form of a clause in the text of the constitutional amendment itself, such as, "This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress." Such a clause may be found in the Eighteenth, Twentieth, Twenty-first and Twenty-second Amendments. However, with the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth amendments, Congress instead placed the ratification deadline in the resolving clause of the joint resolution proposing the amendment rather than in the amendment's actual text. And in the cases of the Nineteenth Amendment (proposed in 1919) and the still-pending Child Labor Amendment (proposed in 1924), Congress chose specifically not to establish any deadline at all.
As noted in Dillon, the Supreme Court has upheld the power of Congress to set such deadlines on ratification. The power of Congress to extend an already-agreed-upon deadline, however, has not been settled. In 1978 Congress extended the previously agreed-upon seven-year limit on the ratification of the Equal Rights Amendment by more than three years from a March 22, 1979, original deadline to a June 30, 1982, revised deadline. It was accepted that if the deadline had been contained within the actual text of the amendment itself, Congress could not have extended it, as doing so would involve changing the text of an amendment already ratified by some of the states. In the case of the Equal Rights Amendment, however, it was argued that since the original March 22, 1979, deadline was contained in only the resolving clause of the joint resolution proposing the amendment—rather than in the actual text of the amendment itself—that the deadline could be altered. In 1981, the United States District Court for the District of Idaho, however, found that Congress did not have the authority to extend the deadline, even when only contained within the proposing joint resolution's resolving clause. The Supreme Court had decided to take up the case, bypassing the Court of Appeals, but before they could hear the case, the extended period granted by Congress had been exhausted without the necessary number of states, thus rendering the case moot. In order to avoid this controversy with the 1978 constitutional amendment proposed to grant congressional representation to the residents of Washington, D.C., Congress returned to the habit of placing the deadline within the actual text of the amendment itself. The District of Columbia Voting Rights Amendment expired unratified in 1985.
Exclusive means for amending the Constitution
According to law professor Lawrence G. Sager, some commentators believe that there are other methods of constitutional amendment, outside of Article V. For example, law professor Akhil Amar believes that Article V is merely the exclusive way for the government to amend the Constitution, whereas (he says) the people themselves have a separate amendment power. Bruce Ackerman of Yale Law School argues that the Constitution can be amended by something he calls a "structural amendment" whereby the people alter their Constitutional order via succeeding elections. Similarly, Sanford Levinson believes that Constitutional amendments have been made outside of Article V and as such it is not exclusive. Other scholars disagree with Amar, Ackerman, and Levinson. Some argue that the Constitution itself provides no mechanism for the American people to adopt constitutional amendments independently of Article V. Darren Patrick Guerra has argued that Article V is a vital part of the American Constitutional tradition and he defends Article V against modern critiques that Article V is either too difficult, too undemocratic, or too formal. Instead he argues that Article V provides a clear and stable way of amending the document that is explicit, authentic, and the exclusive means of amendment; it promotes wisdom and justice through enhancing deliberation and prudence; and its process complements federalism and separation of powers that are key features of the Constitution. He argues that Article V remains the most clear and powerful way to register the sovereign desires of the American public with regard to alterations of their fundamental law. In the end, Article V is an essential bulwark to maintaining a written Constitution that secures the rights of the people against both elites and themselves.
If in the opinion of the People the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.
This statement by Washington has become controversial, and scholars disagree about whether it still describes the proper constitutional order in the United States. Scholars who dismiss Washington's position often argue that the Constitution itself was adopted without following the procedures in the Articles of Confederation.
James Madison, known as the "Father of the Constitution", was instrumental in devising its system of checks and balances. In Federalist No. 43, Madison made clear that the state-led amendment option was intended to be just as valid as the Congress-led option, saying: "[The Constitution] equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other."
Writing extensively about the amendment process in Federalist No. 85, Alexander Hamilton makes clear that Article V allows the States to hold the federal government accountable by allowing them to call an amending convention and propose specific amendments:
But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly...There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution. ... We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.
- List of proposed amendments to the United States Constitution
- List of amendments to the United States Constitution
- Convention to propose amendments to the United States Constitution
- Second Constitutional Convention of the United States
- List of state applications for an Article V Convention
- List of Rescissions of Article V Convention Applications
- National Archives and Records Administration. "The Constitutional Amendment Process". archives.gov.
- National Archives and Records Administration. "The Constitution of the United states Article V". archives.gov.
- "Measures Proposed to Amend the Constitution". Statistics & Lists. United States Senate.
- Johnny H. Killian, George A. Costello, Kenneth R. Thomas, ed. (2004), "Article V. Mode of Amendment" (PDF), The Constitution of the United States of America: Analysis and interpretation, U.S. Government Printing Office, p. 941, 108th Congress, 2d session, Senate, no. 108–17, citing the National Prohibition Cases, 253 U.S. 350, 386 (1920).
- Chin, Gabriel J. & Anjali Abraham (2007), "Beyond the Super-Majority: Post-Adoption Ratification of the Equality Amendments", Arizona Legal Studies Working Paper No. 32-07.
- Cornell University Law School. "COLEMAN et al. v. MILLER, Secretary of the Senate of State of Kansas, et al.". law.cornell.edu.
- Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981).
- Certiorari before judgment granted, NOW v. Idaho, 455 U.S. 918 (1982).
- Judgments of the District Court of Idaho vacated; cases remanded with instructions to dismiss as moot. NOW v. Idaho, 459 U.S. 809 (1982).
- Sager, Lawrence. Justice in Plainclothes: A Theory of American Constitutional Practice, p. 82 (Yale U. Press 2006).
- Bowman, Scott. "Wild Political Dreaming: Constitutional Reformation of the United States Senate", Fordham Law Review (2004).
- Manheim, Karl and Howard, Edward. A Structural Theory of the Initiative Power in California, Loyola Los Angeles Law Review, p. 1167 (1998).
- Washington, George. "Farewell Address" (1796).
- Strauss, David. "The Irrelevance of Constitutional Amendments," 114 Harvard Law Review 1457 (2001).
- Fritz, Christian. "Fallacies of American Constitutionalism", Rutgers Law Journal, p. 1343 (2004).
- Sen. David Long "Amending the U.S. Constitution by State-Led Convention"
- Kilman, Johnny and George Costello (Eds). (2000). The Constitution of the United States of America: Analyis and Interpretation.
- CRS Annotated Constitution: Article 5
- Unamendments, by Jason Mazzone, Iowa Law Review, Vol. 90, p. 1747–1855, 2005.
- Friends of an Article V Convention
- Scanned documents relating to a convention