Constitutional amendment process
Description: Procedure by which formal changes are made to the text of the U.S. Constitution.
Significance: Amendments are the only means by which formal changes may be made to the Constitution. The Supreme Court made several rulings regarding the amendment procedure, including ratification.
Article V of the Constitution specifies the procedures by which the document can be amended. The process has two steps, proposal and ratification, and two methods can be used to carry out each step. Amendments can be proposed by a two-thirds vote of both houses of Congress or by a convention called by Congress at the request of the legislatures of two-thirds of the states. Amendments can be ratified by the legislatures of three-fourths of the states or by conventions in three-fourths of the states. Article V leaves the choice of ratification method to Congress. There are, therefore, four methods of amending the Constitution under Article V: first, proposal by two-thirds vote in both houses of Congress and ratification by the legislatures of three-fourths of the states; second, proposal by two-thirds vote in bo th houses of Congress and ratification by conventions in three-fourths of the states; third, proposal by a convention called by Congress at the request of the legislatures of two-thirds of the states and ratification by the legislatures of three-fourths of the states; and fourth, proposal by a convention called by Congress at the request of the legislatures of two-thirds of the states and ratification by conventions in three-fourths of the states. Twenty-six of the twenty-seven amendments to the Constitution have been adopted using the first of these four methods. One, the Twenty-first Amendment (the repeal of Prohibition), was adopted using the second method. Congress used conventions instead of the state legislatures to ratify this amendment because it seemed that conventions would be more likely to ratify than the legislatures. The third and fourth methods of amending the Constitution have never been used because two-thirds of the states have never petitioned Congress to call a convention on any subject. Thirty-two of the states asked Congress to call a convention to propose a balanced budget amendment, and thirty-three requested a convention to allow one house of state legislatures to be apportioned on the basis of geography or political subdivisions rather than population. These efforts fell two votes and one vote short of two-thirds, respectively. Because the convention method has never been used, the rules governing the process are unclear. One view is that Congress would have complete control over the process and could make the rules governing the convention's operations as it saw fit. Another view holds that once a convention is called, it may take control of the process and propose whatever changes to the Constitution it might wish. Supporters of conventions have often attempted to get state legislatures to pass resolutions proposing the desired amendment in identical language. This tactic is intended to reassure Congress and the public that any convention called would deal with only one subject and would propose only the amendment contained in the resolutions. Should any convention effort ever gain support from the necessary thirty-four state legislatures, Congress could eliminate any uncertainty by simply proposing the suggested amendment. Given the uncertainties of the convention process, Congress would be tempted to follow this course of action.
Supreme Court Involvement
The constitutional amendment process lies largely within the purview of Congress. As early as 1798, Justice Samuel Chase indicated in Hollingsworth v. Virginia that the president played no role in the proposal or ratification of constitutional amendments. Therefore, the president's approval of the resolution proposing an amendment was not needed, and he or she could not veto congressional actions proposing amendments. For a time, the Court involved itself in aspects of the amendment process. In the National Prohibition Cases (1920), the Court ruled that the two-thirds requirement of Article V meant two-thirds of those present and voting, not two-thirds of the entire membership of the houses of Congress. In Dillon v. Gloss (1921), the justices said that Congress could impose a time limit on ratification of amendments and that amendments had to be ratified in a reasonable period of time. The Court also held that a state could not impose a popular referendum on the ratification process when Congress specified ratification by state legislatures (Hawke v. Smith, 1920) and that states may not impose other requirements that prevent state legislatures from ratifying amendments submitted to them for action by Congress (Leser v. Garnett, 1922). In Coleman v. Miller (1939), however, the Court seemed to move toward the political question doctrine and greater congressional control over the constitutional amendment process. In Coleman, the Court was asked to decide three issues: first, whether the lieutenant governor of Kansas could vote on ratification to break a tie in the state senate; second, whether a state could ratify a previously rejected amendment; and third, whether ratification of an amendment was valid when it had been proposed thirteen years earlier with no time limit for ratification. The Court divided evenly on the first question, therefore leaving undisturbed the Kansas supreme court decision that participation by the lieutenant governor posed no constitutional problem. The Court held that the second and third questions were political questions for Congress to decide. Four members of the seven-judge majority wanted to hold all amendment process issues to be matters for Congress to decide. The Court continued its reliance on the political question doctrine after the Coleman decision. For example, its handling of the Equal Rights Amendment (ERA) suggests continued reliance on Coleman. Stating that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” the ERA was proposed by Congress in March, 1972. The deadline for ratification, specified in the resolution accompanying the amendment when it was sent to the state legislatures for ratification, but not in the text of the amendment itself, was seven years. In 1978 when the amendment was three states short of the three-fourths needed for ratification, Congress extended the deadline for approval by thirty-nine months, to June 30, 1982. When the extension legislation was passed, Congress rejected a proposal that would have allowed states to rescind their prior approvals of the amendment, something that four states had done. Congress has typically allowed states that have rejected amendments to change their minds and ratify them but has not permitted states that have ratified to rescind their ratification. Congressional action in the ERA case was therefore consistent with past practice, but some members argued that because the deadline was being extended, fairness dictated that rescissions be permitted. Idaho, one of the four states that had rescinded, attempted to pursue its change of mind, and the National Organization for Women challenged its attempt. The federal district court in Idaho approved the rescission, and the Supreme Court docketed the case but dismissed the suit as moot after the extended ratification period ran out (National Organization for Women v. Idaho, 1982). This action suggests that the Court recognized the authority of Congress to extend the period for ratification and to refuse state recission of ratification. After the ERA controversy, Congress returned to the practice of placing time limits for ratification in the text of amendments they were considering. Supporters of the extension had argued that because the time limit was not in the text of the ERA itself, Congress could extend the deadline for ratification.
The Twenty-seventh Amendment
The adoption of the Twenty-seventh Amendment also suggests that the power of Congress over the amendment process is substantial, if not plenary. This amendment requires an election for members of Congress to intervene between the passage of a congressional pay raise and its effective date. It was proposed by Congress on September 28, 1789, as the second of twelve proposed articles of amendment. Articles three through twelve were ratified in 1791 and became known as the first ten amendments, or the Bill of Rights. The first two articles remained in limbo because Congress had set no time limit for their ratification. By the latter part of the twentieth century, constitutional commentators generally assumed that these two amendments, along with others submitted later but not ratified, were no longer viable because of the Court's pronouncement in Dillon (1921) that amendments had to be ratified within a reasonable period of time. In 1989 a graduate student learned about the long-forgotten proposal while doing research and began an effort to get state legislatures to ratify the amendment. His timing could not have been more opportune. The proposal became a symbol of dissatisfaction with Congress, in particular with congressional pay increases during an economic downturn. The ratification effort was successful. When the thirty-eighth state ratified, Congress decided that 202 years was a reasonable time and declared the amendment to be part of the Constitution on May 7, 1992. To avoid similar situations in the future, the Senate subsequently declared all other pending constitutional amendments to be “dead.” However, because Congress has such extensive power over the process and could change its mind at any time, this declaration may be meaningless. It did not affect very many amendments. Over the years Congress has proposed thirty-three amendments of which twenty-seven have been ratified. It was the remaining six, especially the four proposed without time limits, that the Senate was attempting to put to rest. The passage of the Twenty-seventh Amendment also demonstrates that the constitutional amendment process is a political one. Had Congress refused to declare the amendment part of the Constitution on the grounds that it had been pending too long, the reaction from the public would have been unfavorable, something Congress was not willing to face. However, while the 202-year interval between proposal and passage of the Twenty-seventh Amendment is not a model of timeliness, it is not likely to be repeated. Today, Congress routinely puts time limits for ratification (usually seven years) on amendments, and as noted previously, the Senate has attempted to eradicate from the record the four remaining amendments still pending without time limits.
- Two general overviews of the Constitution contain sections on the amendment process. These are Jack W. Peltason's Corwin and Peltason's Understanding the Constitution (14th ed., Fort Worth, Tex.: Harcourt Brace Jovanovich, 1997) and The Constitution of the United States of America: Analysis and Interpretation (Washington, D.C.: Government Printing Office, 1996). The latter publication is also available on line (http://www.access.gpo.gov/congress/senate/constitution/toc.html). Isobel V. Morin's Our Changing Constitution: How and Why We Have Amended It (Brookfield, Conn.: Millbrook Press, 1998) is an overview of the amendment process for younger readers. John R. Vile has written a great deal about the constitutional amendment process. His The Constitutional Amending Process in American Political Thought (Westport, Conn.: Praeger, 1992) puts the process into theoretical perspective. His subsequent work Contemporary Questions Surrounding the Constitutional Amending Process (Westport, Conn.: Praeger, 1993) discusses in detail the issues surrounding the process. Finally, Vile wrote a very useful and comprehensive Encyclopedia of Constitutional Amendments, Proposed Amendments and Amending Issues, 1789-1995 (Oxford: ABC-CLIO, 1996). A volume edited by Sanford Levinson, Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton, N.J.: Princeton University Press, 1995) is a useful attempt to bridge the gap between principle and political practice. The many books on the Equal Rights Amendment illustrate nicely the pitfalls of the amending process. Two of the better treatments are Jane Mansbridge's Why We Lost the ERA (Chicago: University of Chicago Press, 1986) and Gilbert Y. Steiner's Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment (Washington, D.C.: Brookings Institution, 1985). Another instructive case study of one amendment is James E. Bond's No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment (Westport, Conn.: Praeger, 1997).