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....
The process of amendment developed hand in hand with the emergence of written constitutions that established popular government. The charters established by William Penn in 1682 and 1683 provided for amending, as did eight of the state constitutions in effect in 1787. Three state constitutions provided for amendment through the legislature, and the other five gave the power to specially elected conventions.
The Articles of Confederation provided for amendments to be proposed by Congress and ratified by the unanimous vote of all thirteen state legislatures. This proved to be a major flaw in the Articles, as it created an insuperable obstacle to constitutional reform. The amendment process in the Constitution, as James Madison explained in The Federalist No. 43, was meant to establish a balance between the excesses of constant change and inflexibility: “It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
In his Commentaries on the Constitution of the United States (1833), Justice Joseph Story wrote that a government that provides
no means of change, but assumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circumstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. . . . The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather than to open a way for experiments, suggested by mere speculation or theory.
In its final form, Article V creates two ways to propose amendments to the Constitution: through Congress or by a special convention called by the states for the purpose of proposing amendments (Article V, Convention for Proposing Amendments). In either case, the proposed amendment or amendments must then be ratified by the states, either (as determined by Congress) by state legislatures or by ratifying conventions in the states.
More significantly, the double supermajority requirements—two-thirds of both houses of Congress and three-quarters of the states—create extensive deliberation and stability in the amendment process and restrain factions and special interests. It helps to maintain the Constitution as a “constitution” and not an assemblage of legislative enactments. It also roots the amending process in the Founders’ unique concept of structural federalism based on the dual sovereignty of the state and national governments.
The Virginia Plan introduced at the start of the Constitutional Convention called only in a general way for an amendment process that would allow but not require amendment by the national legislature “whensoever it shall seem necessary.” The Committee of Detail proposed a process whereby Congress would call for an amendments convention on the request of two-thirds of the state legislatures. After further debate, the delegates passed language, proposed by Madison (and seconded by Alexander Hamilton), that the national legislature would propose amendments when two-thirds of each house of Congress deem it necessary, or on the application of two-thirds of the state legislatures. Proposed amendments were to be ratified by three-fourths of the states in their legislatures or by state convention. Just before the end of the Convention, George Mason objected that the amendment proposal would allow Congress to block as well as propose amendments, and the method was changed once again to require Congress to call a convention to propose amendments on the application of two-thirds of the states.
The Constitutional Convention made two specific exceptions to the Amendments Clause of Article V, one concerning the slave trade (Prohibition on Amendment: Migration or Importation) and another on voting in the Senate (Prohibition on Amendment: Equal Suffrage in the Senate), but defeated a motion to prevent amendments that affected internal police powers in the states.
The advantage of the Amendments Clause was immediately apparent. The lack of a bill of rights—the Convention had considered and rejected this option—became a rallying cry during the ratification debate. Partly to head off an attempt to call for another general convention or a formal amendments convention under Article V, but mostly to legitimize the Constitution among patriots who were Anti-Federalists, the advocates of the Constitution (led by Madison) agreed to add amendments in the first session of Congress. North Carolina and Rhode Island acceded to the Constitution, and further disagreements were cabined within the constitutional structure.
Madison had wanted the amendments that became the Bill of Rights to be interwoven into the relevant sections of the Constitution. More for stylistic rather than substantive reasons, though, Congress proposed (and set the precedent for) amendments appended separately at the end of the document. Some have argued that this method makes amendments more susceptible to an activist interpretation than they would be otherwise.
Since 1789, well over five thousand bills proposing to amend the Constitution have been introduced in Congress; thirty-three amendments have been sent to the states for ratification. Of those sent to the states, two have been defeated, four are still pending, and twenty-seven have been ratified. Because of the national distribution of representation in Congress, most amendment proposals are defeated by a lack of general support and those amendments that are proposed to the states by Congress are likely to be ratified.
In a challenge to the Eleventh Amendment, the Supreme Court waved aside the suggestion that amendments proposed by Congress must be submitted to the president according to the Presentment Clause (Article I, Section 7, Clause 2). Hollingsworth v. Virginia (1798). In The National Prohibition Cases (1920), the Court held that the “two-thirds of both Houses” requirement applies to a present quorum, not the total membership of each body. One year later, in Dillon v. Gloss (1921), the Court allowed Congress, when proposing an amendment, to set a reasonable time limit for ratification by the states. Since 1924, no amendment has been proposed without a ratification time limit, although the Twenty-seventh Amendment, proposed by Madison in the First Congress more than two hundred years ago, was finally ratified in 1992.
Regardless of how an amendment is proposed, Article V gives Congress authority to direct the mode of ratification. United States v. Sprague (1931). Of the ratified amendments, all but the Twenty-first Amendment, which was ratified by state conventions, have been ratified by state legislatures. In Hawke v. Smith (1920), the Court struck down an attempt by Ohio to make that state’s ratification of constitutional amendments subject to a vote of the people, holding that where Article V gives authority to state legislatures, these bodies are exercising a federal function.
Although some scholars have asserted that certain kinds of constitutional amendments might be “unconstitutional,” actual substantive challenges to amendments have so far been unsuccessful. National Prohibition Cases; Leser v. Garnett (1922). The Supreme Court’s consideration of procedural challenges thus far does not extend beyond the decision of Coleman v. Miller (1939), dealing with Kansas’s ratification of a child labor amendment. The Court split on whether state ratification disputes are nonjusticiable political questions, but then held that Congress, “in controlling the promulgation of the adoption of constitutional amendment[s],” should have final authority over ratification controversies.
The careful consideration of the amending power calls into question theories claiming the right of the Supreme Court to superintend a “living” or “evolving” Constitution outside of the amendment process. Non-originalist versions of this argument are those of Akhil Amar, who contends that Article V limits only government and that the people can propose and ratify amendments by popular vote, and Bruce Ackerman, who posits that extra-constitutional “constitutional moments” (such as the period after the Civil War or the New Deal) effectively amend the Constitution through politics (e.g., the election of 1936) followed by judicial codification (e.g., Supreme Court decisions upholding New Deal legislation).
In the end, the Framers believed that the amendment process would protect the Constitution from undue change at the same time that it would strengthen the authority of the Constitution with the people by allowing its deliberate reform while elevating it above immediate political passions. “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government,” George Washington wrote in his Farewell Address of 1796. “But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all.”
Richard B. Bernstein, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (1993)
Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-seventh Amendment, 61 Fordham L. Rev. 497 (1992)
Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (1997)
Edward Harnett, A "Uniform and Entire" Constitution; or, What if Madison Had Won?, 15 Const. Comment. 251 (1998)
Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause: Why Hollingsworth v. Virginia Was Rightly Decided, and Why I.N.S. v. Chadha Was Wrongly Resolved, 83 Tex. L. Rev. 1373 (2005)
John R. Vile, The Constitutional Amending Process in American Political Thought (1992)
Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798)
Hawke v. Smith, 253 U.S. 221 (1920)
National Prohibition Cases, 253 U.S. 350 (1920)
Dillon v. Gloss, 256 U.S. 368 (1921)
Leser v. Garnett, 258 U.S. 130 (1922)
United States v. Sprague, 282 U.S. 716 (1931)
Coleman v. Miller, 307 U.S. 433 (1939)