The US Constitution
Though the members of the Philadelphia Convention hoped that their work would last at least for a generation, they knew that the Constitution they crafted would likely need to be amended. Providing a means to this end is the purpose of Article V. It is one part of the Constitution where we can clearly see the influence of recent experience. The Articles of Confederation had required unanimous approval by the states of any amendments and on at least two occasions single states had blocked amendments designed to put the shaky finances of the Confederation government on a firmer foundation. The Framers intended that amendments to the new framework be at least possible, though by no means easy.
Article V divides the amending process into two phases: proposal and ratification. It further provides two different methods of achieving each phase. Amendments can be proposed either by means of a two-thirds vote of both houses of Congress or by Congress calling a convention to propose amendments upon the request of two-thirds of the state legislatures. To date the latter method has never been tried, and all amendments to the Constitution have been formally proposed by two-thirds of the two houses of Congress. One likely reason for this is that no one knows what would happen if a convention were called. It would be uncharted constitutional waters, and some have feared that such a convention would go beyond proposing amendments. After all, the Constitutional Convention itself was called to amend the Articles of Confederation, not replace them with a new framework of government. It might be noted, though, that by the late 1980’s, some thirty-two states—two short of the required number--had petitioned Congress to call a convention to consider an amendment requiring a balanced federal budget.
Article V mandates that proposed amendments be ratified by three-quarters of the states, an action that can be taken either by state legislatures or by specially called state conventions, with the choice of method left to Congress. To date, state legislatures have ratified all but one. The exception was the XXIst Amendment, which repealed the XVIIIth (“Prohibition”) Amendment. Congress selected this route because it felt that conventions would be more reflective of the rising “wet” tide in public opinion.
Article V assigns no role to the President. A major reason for this is that the two-thirds majority required to propose an amendment is the same extraordinary majority required to override a presidential veto. Presidents, of course, can support or oppose proposed amendments and use their influence accordingly. Lincoln, for example, promptly—if unnecessarily--signed the proposed XIIIth Amendment (abolishing slavery) after it emerged from Congress.
Article V thus makes make it difficult—but not impossible—to amend the Constitution. In effect, one house in thirteen state legislatures can stop an amendment. Most proposed amendments, however, have gone on to become part of the Constitution. Over the years since 1788, there have been some thirty-three amendments that have made it to the ratification stage. Of these, twenty-seven have been ratified. The proposed amendment that came closest without making it into the Constitution was the “Equal Rights Amendment,” which sought to embed in the Constitution the principle of gender equality. It was ratified by thirty-five states—three short of the needed thirty-eight--before the time limit for ratification set by Congress expired in 1982.
The length of time required for ratification has varied greatly over time, but has usually been fairly brief. Not counting the almost 203 years between the proposal of what became the XXVIIth Amendment (originally proposed with the amendments that became the Bill of Rights) and its 1992 ratification, the average time required has been eighteen months. During the twentieth century, Congress adopted the practice of setting a seven-year time limit when proposing amendments. When one considers that the first ten amendments (the Bill of Rights) were an outgrowth of the ratification process for the Constitution itself and that one amendment (the XXIst) repealed another (the XVIIIth), there have been a net of only fifteen amendments since 1791. The Framers’ goal of making it both possible and difficult to amend the Constitution would seem to have been realized.
William C. Lowe, PhD
Dean and Professor of History
published September 2011