Article Five of the United States Constitution
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Article Five of the United States Constitution describes the process whereby the Constitution, the nation's frame of government, may be altered. Altering the Constitution consists of proposing an amendment or amendments and subsequent ratification. Amendments may be proposed either by the Congress with a two-thirds vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the state legislatures. To become part of the Constitution, an amendment must be ratified by either—as determined by Congress—the legislatures of three-fourths of the states or State ratifying conventions in three-fourths states.
Additionally, Article V temporarily shielded certain clauses in Article I from being amended. The first clause in Section 9, which prevented Congress from passing any law that would restrict the importation of slaves prior to 1808, and the fourth clause in that same section, a declaration that direct taxes must be apportioned according state populations, were explicitly shielded from Constitutional amendment prior to 1808. It also shields the first clause of Article I, Section 3, which provides for equal representation of the states in the United States Senate, from being amended, though not absolutely.
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. All totaled, approximately 11,539 measures to amend the Constitution have been proposed in Congress since 1789 (through December 16, 2014).
Article V provides two methods for amending the nation’s frame of government. The first method authorizes Congress, "whenever two-thirds of both houses shall deem it necessary" (a two-thirds of those members present—assuming that as 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), to propose Constitutional amendments. The second method requires Congress, " on the application of the legislatures of two-thirds of the several states" (presently 34), to "call a convention for proposing amendments".
When the 1st Congress considered a series of constitutional amendments, it was suggested that the two houses first adopt a resolution indicating that they deemed amendments necessary. This procedure wasn't used. Instead, both the House and Senate proceeded directly to consideration of a joint resolution, thereby implying that both bodies deemed amendments to be necessary. Also, when initially proposed by James Madison, the amendments were designed to be interwoven into the relevant sections of the original document. Instead, they were approved by Congress and sent to the states for ratification as supplemental additions (codicils) appended to it. Both these precedents have been followed ever since.
Regarding the amendment process crafted during the 1787 Constitutional Convention, Madison, in The Federalist No. 43, wrote:
It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover 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.
Each time the amendment process has been initiated since 1789, the first method has been used. All 33 amendments submitted to the states for ratification originated in The Congress. The second method, the convention option, which Alexander Hamilton (writing in The Federalist No. 85) believed would serve as a barrier "against the encroachments of the national authority", has yet to be successfully invoked, although not for lack of activity in the states.
Three times in the 20th century, concerted efforts were undertaken by proponents of particular amendments to secure the number of applications necessary to summon an Article V Convention. These included conventions to consider amendments to (1) provide for popular election of U.S. Senators; (2) permit the states to include factors other than equality of population in drawing state legislative district boundaries; and (3) to propose an amendment requiring the U.S. budget to be balanced under most circumstances. The campaign for a popularly elected Senate is frequently credited with “prodding” the Senate to join the House of Representatives in proposing what became the Seventeenth Amendment to the states in 1912, while the latter two campaigns came very close to meeting the two-thirds threshold in the 1960s and 1980s, respectively.
Once approved by Congress, the joint resolution proposing a constitutional amendment does not require Presidential approval before it goes out to the states. While Article I Section 7 provides that all federal legislation must, before becoming Law, be presented to the President for his or her signature or veto, Article V provides no such requirement for constitutional amendments approved by Congress, or by a federal convention. Thus the president has no official function in the process.[a][b] In Hollingsworth v. Virginia (1798), the Supreme Court affirmed that it is not necessary to place constitutional amendments before the President for approval or veto.
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 three-fourths of the states. Congress is authorized to choose whether a proposed amendment will be sent to the state legislatures or to state ratifying conventions for ratification. Amendments ratified by the states under either procedure are indistinguishable and have equal force as part of the Constitution. Of the 33 amendments submitted to the states for ratification, the state convention method has been used for only one, the Twenty-first Amendment, which became part of the Constitution in 1933. In United States v. Sprague (1931) the Supreme Court affirmed the authority of Congress to decide how each individual constitutional amendment will be ratified in accordance with the options provided in Article V and the equal validity of amendments properly ratified in either fashion. The Court had earlier, in Hawke v. Smith (1920), ruled the ratification of the proposed Nineteenth Amendment (which Congress had sent to the state legislatures for ratification) by the Legislature of Ohio could not be referred to the electors (voters) of the state, and that the Ohio Constitution, in requiring such a referendum, was inconsistent with the U.S. Constitution.
An amendment becomes an operative part of the Constitution when it is ratified by the necessary number of states; no further action by Congress or anyone is required. On three occasions Congress has, after being informed that an amendment has reached the ratification threshold, adopted a resolution declaring the process successfully completed.[c] Such actions, while perhaps important for political reasons, are constitutionally speaking, unnecessary. In Dillon v. Gloss (1921) the Supreme Court ruled that an amendment becomes operative on the date of its ratification by three-fourths of the States, rather than on the later date when its ratification was certified.
Presently, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code § 106b. The Archivist submits a proposed amendment to the states for their consideration by sending a letter of notification to each Governor. Each Governor then formally submits the amendment to their state's legislature (or ratifying convention). When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. Upon receiving the necessary number of state ratifications, it is the duty of the Archivist to issue a certificate proclaiming a particular amendment duly ratified and part of the Constitution.[d] The Amendment and its certificate of ratification are then published in the Federal Register and United States Statutes at Large. This serves as official notice to Congress and to the nation that the ratification process has been successfully completed.
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.
- List of amendments to the United States Constitution
- List of proposed amendments to the United States Constitution
- List of state applications for an Article V Convention
- List of Rescissions of Article V Convention Applications
- On March 2, 1861 the 36th Congress gave final approval to proposed constitutional amendment designed to shield "domestic institutions" (which at the time included slavery) from the constitutional amendment process and from abolition or interference by Congress. The following day, on his last full day in office, President Buchanan, took the unprecedented step of signing it. Submitted to the to the state legislatures for ratification without a time limit for ratification attached, the proposal, commonly known as the Corwin Amendment, is still technically pending before the states.
- On January 31, 1865, the 38th Congress gave final approval to what would become the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as punishment for a crime. The following day, the amendment was presented to the President Lincoln pursuant to the constitution’s Presentment Clause, and signed. On February 7, Congress passed a resolution affirming that the Presidential signature was unnecessary.
- 1868 regarding the Fourteenth Amendment, 1870 regarding the Fifteenth Amendment, and 1992 regarding the Twenty-seventh Amendment
- In recent history, the signing of the certificate of ratification has become a ceremonial function attended by various dignitaries. President Johnson signed the certifications for the Twenty-fourth Amendment and Twenty-fifth Amendment as a witness. When the Administrator of General Services, Robert Kunzig, certiﬁed the adoption of the Twenty-sixth Amendment on July 5, 1971, President Nixon along with Julianne Jones, Joseph W. Loyd, Jr., and Paul Larimer of the "Young Americans in Concert" signed as witnesses. On May 18, 1992, the Archivist of the United States, Don W. Wilson, certified that the Twenty-seventh Amendment had been ratified, and the Director of the Federal Register, Martha Girard, signed the certification as a witness. 
- "The Constitutional Amendment Process". The U.S. National Archives and Records Administration. Retrieved November 17, 2015.
- "The Constitution of the United States: Article V". The U.S. National Archives and Records Administration. Retrieved July 27, 2014.
- "Measures Proposed to Amend the Constitution". Statistics & Lists. United States Senate.
- Neale, Thomas H. (April 11, 2014). "The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress" (PDF). Congressional Research Service. pp. 1–2. Retrieved November 17, 2015.
- England, Trent & Spalding, Matthew. "Essays on Article V: Amendments". The Heritage Foundation. Retrieved July 31, 2014.
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- Sen. David Long "Amending the U.S. Constitution by State-Led Convention"
- Rossum, Ralph A. (2001). Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy. Lanham, Maryland: Lexington Books. p. 207. ISBN 0-7391-0285-0. Retrieved October 23, 2015.
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- Thorpe, Francis Newton (1901). "The Constitutional History of the United States, vol. 3: 1861 – 1895". Chicago: Callaghan & Company. p. 154.
- Neale, Thomas H. "The Proposed Equal Rights Amendment: Contemporary Ratification Issues" (PDF). Congressional Research Service. Retrieved July 27, 2014.
- Cornell University Law School. "DILLON v. GLOSS, Deputy Collector". law.cornell.edu.
- http://www.presidency.ucsb.edu/ws/index.php?pid=3068&st=&st1= Richard Nixon: "Remarks at a Ceremony Marking the Certification of the 26th Amendment to the Constitution," July 5, 1971. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.
- 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).
- U.S. Government Printing Office. (2013). The Constitution of the United States of America: Analyis and Interpretation.
- CRS Annotated Constitution: Article 5