Article Five of the United States Constitution describes the procedure for altering the Constitution. Under Article Five, the process to alter 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 convention to propose amendments called by Congress at the request of two-thirds of the state legislatures. To become part of the Constitution, an amendment must then be ratified by either—as determined by Congress—the legislatures of three-quarters of the states or by ratifying conventions conducted in three-quarters of the states, a process that has been utilized only once, with the 1933 ratification of the Twenty-First Amendment. The vote of each state (to either ratify or reject a proposed amendment) carries equal weight, regardless of a state's population or length of time in the Union. Article Five is silent regarding deadlines for the ratification of proposed amendments, but most amendments proposed since 1917 have included a deadline for ratification. Legal scholars generally agree that the amending process of Article Five can itself be amended by the procedures laid out in Article Five, but there is some disagreement over whether Article Five is the exclusive means of amending the Constitution.
In addition to defining the procedures for altering the Constitution, Article Five also shields three clauses in Article One from ordinary amendment by attaching stipulations. Regarding two of the clauses—one concerning importation of slaves and the other apportionment of direct taxes—the prohibition on amendment was absolute but of limited duration, expiring in 1808; the third was without an expiration date but less absolute: "no state, without its consent, shall be deprived of its equal Suffrage in the Senate." Scholars disagree as to whether this shielding clause can itself be amended by the procedures laid out in Article Five.
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Procedures for amending the Constitution
Thirty-three amendments to the United States Constitution have been approved by the 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, more than 10,000 measures to amend the Constitution have been proposed in Congress.
Proposing amendments 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," to propose constitutional amendments. The second method requires Congress, "on the application of the legislatures of two-thirds of the several states" (34 ), to "call a convention for proposing amendments".
This duality in Article V is the result of compromises made during the 1787 Constitutional Convention between two groups, one maintaining that the national legislature should have no role in the constitutional amendment process and another contending that proposals to amend the constitution should originate in the national legislature and their ratification should be decided by state legislatures or state conventions. Regarding the consensus amendment process crafted during the convention, James Madison (writing in The Federalist No. 43) declared:
Each time the Article V process has been initiated since 1789, the first method for crafting and proposing amendments has been used. All 33 amendments submitted to the states for ratification originated in Congress. The second method, the convention option, a political tool that Alexander Hamilton (writing in the Federalist No. 85) argued would enable state legislatures to "erect barriers against the encroachments of the national authority," has yet to be invoked.
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 was not used. Instead, both the House and the 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.
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. 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.
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 the 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.
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 (38 out of 50) of the states. Congress is authorized to choose whether a proposed amendment is 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 validity 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. In United States v. Sprague (1931), the Supreme Court affirmed the authority of Congress to decide which mode of ratification will be used for each individual constitutional amendment. The Court had earlier, in Hawke v. Smith (1920), upheld the Ohio General Assembly's ratification of the Eighteenth Amendment—which Congress had sent to the state legislatures for ratification—after Ohio voters successfully vetoed that approval through a popular referendum, ruling that a provision in the Ohio Constitution reserving to the state's voters the right to challenge and overturn its legislature's ratification of federal constitutional amendments was unconstitutional.
An amendment becomes an operative part of the Constitution when it is ratified by the necessary number of states, rather than on the later date when its ratification is certified. 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. Such actions, while perhaps important for political reasons, are, constitutionally speaking, unnecessary.
The archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code . The archivist officially notifies the states, by a registered letter to each state's Governor, that an amendment has been proposed. 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. 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.
This process, argues Steven Levitsky and Daniel Ziblatt, means the U.S. Constitution is the most difficult in the world to amend "by a lot".
Ratification deadline and extension The Constitution is silent on the issue of whether or not Congress may limit the length of time that the states have to ratify constitutional amendments sent for their consideration. It is also silent on the issue of whether or not Congress, once it has sent an amendment that includes a ratification deadline to the states for their consideration, can extend that deadline.
Deadlines The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a time limit of seven years to ratify the amendment, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states. The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.
In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found—intimated in the amending process—a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times. The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held 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. Based upon this precedent, the Archivist of the United States, on May 18, 1992, proclaimed the Twenty-seventh Amendment as having been ratified when it surpassed the "three fourths of the several states" plateau for becoming a part of the Constitution. It had been submitted to the states for ratification—without a ratification deadline—on September 25, 1789, an unprecedented time period of .
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