Hearing before the House Judiciary Subcommittee on the Constitution and Limited Government
September 19, 2023
Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
Thank you, Mr. Chairman, for the opportunity to participate in this hearing and to provide a sketch of the constitutional amendment process. My name is Thomas Jipping and I am a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. For 15 years, I served on the staff of U.S. Senator Orrin Hatch, including several years as his chief Judiciary Committee counsel. As he was a strong advocate of amending the Constitution to require a balanced federal budget, I studied both amendment processes provided for by Article V.
Today, more than 180 nations have a written constitution of government. Even tiny Tuvalu, in the South Pacific, has one, with three times as many words as Tuvalu has citizens.
It was not always so. The U.S. Constitution, which was ratified by the necessary ninth state on June 21, 1788, is “the world’s longest surviving written charter of government.” Its lifespan is nearly 13 times longer than the average national constitution. Our constitution is also one of the shortest, only one-third the length of the average national charter around the world.
In 1795, just seven years after the Constitution was ratified, the Supreme Court offered this counsel:
What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established. The Constitution is fixed and certain; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.
President George Washington published his farewell address to the American people 227 years ago today, on September 19, 1796, in the Philadelphia Daily American Advertiser. He explained that “the basis of our political systems is the right of the people to make and alter their constitutions of government; that the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”
Together, this means that only the American people can revoke or alter the Constitution, which remains fixed until they do so by an explicit and authentic act. Article V of the Constitution defines that act this way:
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.
Proposing Constitutional Amendments
The Articles of Confederation, our first constitution, provided that amendments be proposed only by Congress and required unanimous ratification by the states. Congress could choose never to propose amendments, or it could propose amendments certain to lack unanimous state support for ratification.
The 1787 convention that drafted the Constitution we know today struck a different balance. Some delegates wanted to exclude Congress altogether by giving the power to propose amendments exclusively to state legislatures. In the first formal proposal considered by the convention, two-thirds of the states could directly call a convention to propose amendments; Congress had no role at all. Not until another iteration, a compromise proposed by James Madison that became Article V, did Congress have the authority to propose amendments.
Proposal by Congress. Every constitutional amendment proposed since the Constitution was ratified in 1788 has come from Congress. More than 12,000 resolutions have been introduced in the House or Senate to propose constitutional amendments on a host of subjects. Of the 33 that Congress has proposed, the states have ratified 27 and four that Congress proposed without a ratification deadline remain pending before the states. The remaining two, the Equal Rights Amendment proposed in 1972 and the District of Columbia Voting Rights Amendment proposed in 1978, expired when their ratification deadlines passed with insufficient state support.
Congress proposes a constitutional amendment by a joint resolution that has two parts: a proposing clause with procedural rules and the text of the proposed amendment. Procedural rules that may appear in the proposing clause include the designated mode of ratification and a ratification deadline. When Congress proposed a group of 12 amendments in 1789, the joint resolution’s proposing clause said that the states could ratify “any or all” of them. The states opted for some, ratifying 10 of them together in what we today call the Bill of Rights.
Both proposal and ratification are what is sometimes called self-executing upon completion. Passage of the same joint resolution by two-thirds of both houses of Congress “ha[s] the effect of formally proposing the amendment to the states for ratification.” Similarly, as Article V provides, a proposed amendment becomes part of the Constitution, and the amendment process ends, when it is ratified by three-fourths of the states by the mode Congress has specified, and before any deadline Congress has imposed. No further action is required, including presentation to the president, who has no role in the amendment process. The Archivist of the United States then transmits the resolution to the governor of each state.
Ratification Deadlines. As noted above, the Supreme Court has held that Congress’ power to specify a proposed amendment’s mode of ratification includes setting a ratification deadline. Congress has proposed 10 amendments with a deadline, placing it in the text of five and in the resolution’s proposing clause of the others. The states, in turn, have ratified four in each category. Members of Congress continue including a ratification deadline in joint resolutions to propose constitutional amendments. A majority of those introduced in the current Congress to require a balanced federal budget, for example, and each of those to impose term limits on members of Congress includes a seven-year ratification deadline in the joint resolution’s proposing clause.
The validity of a ratification deadline depends on Congress’ authority to set one, not on where Congress chooses to put it. The Justice Department, during administrations of both parties, has agreed with Congress’ obvious belief that a ratification deadline’s location is irrelevant to its validity. The Office of Legal Counsel, for example, concluded in a 1977 opinion that the 1972 ERA had to be ratified within the seven-year deadline that Congress placed in the resolution’s proposing clause. The OLC came to the same conclusion in a 2020 opinion.
Last year, the Biden Administration’s Justice Department defended the Archivist against a lawsuit by Illinois and Nevada trying to force him to certify the 1972 ERA as the 28th Amendment of the Constitution. The Justice Department’s brief in Illinois v. Ferriero noted that “Members of Congress did not ascribe any substantive difference to the two types of deadlines” and that “substantial historical practice…supports Congress’s authority” to decide where to place a ratification deadline.
Proposal by Convention. The fact that Congress has never called an Article V convention to propose constitutional amendments does not mean that no guidance exists about the nature, purpose, and operation of a convention. Remember that the Articles of Confederation gave Congress control of the amendment process, and the early proposals at the 1787 convention would shut Congress out of the process altogether. The final compromise that became article V was not simply a pendulum swing back to exclusive congressional control. Rather, it retained the states’ power, through the vehicle of a convention, to initiate constitutional amendments and added the comparable power of Congress to propose them.
This is a very important point. If states could merely initiate an amendment process but had no control over its result, that is, over the substance of any proposed amendment, Congress would have nearly the same control as it did under the Articles of Confederation. Rather, as the Justice Department’s Office of Legal Counsel (OLC) has explained, an Article V convention for proposing amendments is “an interstate convention” that is a “servant of the legislatures” rather than an independent national assembly. As a creation of the states, an Article V convention’s powers are defined by the states. In a 1979 opinion, the OLC concluded that an Article V convention’s function “is to respond to the extraordinary consensus that was the predicate for the call.”
This means that the states can pursue constitutional change even, and perhaps especially, when “Congress proved incapable of, or unwilling to, initiate amendments on its own.” The states’ power in this regard is at least “equal to that of Congress.” The fact that Article V gives Congress the power to actually propose specific substantive amendments suggests that there should be some connection between what the states seek, as evidenced by their applications, and what the convention called by Congress in response to those applications produces. In this view, an Article V convention is an extension of the states’ applications so that, just as Congress can, the states can determine which amendments they would propose.
The “Prodding Effect.” While there has yet to be an Article V convention called, campaigns seeking one have had a “prodding effect” on Congress. The first state applications, by Virginia in 1788 and New York in 1789, for example, “help[ed] spur Congress to propose its own Bill of Rights.” Similarly, around the turn of the 20th century, the Senate blocked several House-passed resolutions to propose an amendment for direct election of Senators. By 1912, 27 states – four short of the two-thirds threshold – had applied for an Article V convention to do so. Congress gave in, proposing such an amendment that the states ratified within less than a year. After 32 states (out of 34 required) applied for an Article V convention to propose a balanced budget amendment, the Senate voted 69-31 in August 1982 for Senate Joint Resolution 58.
While the text of Article V confirms that Congress “shall” call a convention when two-thirds of the states apply for one, Congress must exercise some judgment to determine when its duty is triggered. Most of the debate about the Article V convention process concerns how Congress should exercise that judgment in determining when its duty is triggered. Doing it in a rigid or arbitrary manner could easily neutralize the states’ power to initiate constitutional amendments. The balance that the Framers struck in Article V, and the fact that the states’ power in this regard is at least “equal to that of Congress,” counsels a more generous approach.
States that ratify a proposed constitutional amendment by the mode Congress has specified, and prior to any deadline Congress has imposed, send to the Archivist a certified copy of their ratification resolutions. The Office of the Federal Register, which is part of the National Archives and Records Administration, “examines ratification documents for facial legal sufficiency and an authenticating signature” and “transfers the record to the National Archives for preservation.” This might be said to be a fairly modest standard, but it seeks to prevent imposition of subjective judgment or to create arbitrary obstacles to the process. Similarly, as the OLC explained in its 1979 opinion, “the Framers did not want the national legislature to interfere with the convention process. They did not want Congress to make substantive judgments or channel the development of constitutional proposals via the convention route.”
The House Judiciary Subcommittee on Civil and Constitutional Rights held hearings in 1985 on the Article V convention process. These hearings were prompted by applications from 32 states for an Article V convention to propose a balanced budget amendment and focused on both the authority of Congress and the states to limit the scope of an Article V convention. In February 1993, the House Judiciary Committee released a report titled “Is There a Constitutional Convention in America’s Future?” that presented “an overview of opinion and precedent on some of the most critical questions.”
General vs. Limited Applications. The 18th century applications, noted above, by Virginia and New York for an Article V convention did not specify any particular subject matter, but only “such amendments…as [the] delegates shall find best suited to promote our common interests.” While states may submit either kind of application, questions remain such as:
- May applications that do not specify an issue be counted with those that do?
- If not, may applications specifying different issues be counted together?
- If not, must applications specifying the same issue be worded identically?
Contemporaneity. Must applications specifying the same issue be relatively contemporaneous to be counted together? When Congress proposes a constitutional amendment, the individual and institutional decision-makers act contemporaneously. All members of the House or Senate, for example, vote at the same time on a joint resolution to propose an amendment. An average of 35 days elapsed between the House and Senate votes on the 33 constitutional amendments Congress has proposed; in fact, both chambers voted the same day on 22 of those amendments. Maintaining the parallel between congressional and convention methods of proposing amendments suggests at least some degree of contemporaneity.
Rescission. After Congress proposed the Equal Rights Amendment in 1972, five of the 35 states that ratified it rescinded, or withdrew, their ratification before the measure’s deadline. Supporters argued that states may never change their mind, while opponents argued that, at least until the necessary three-fourths threshold is reached, states may come to a final decision their own way. The same question arises in the context of the Article V convention process. The 1993 House Judiciary Committee report concluded on this point that “most commentators argue that withdrawal of applications should be allowed, at least before the necessary 34 States have applied.”
Convention Operation. There remain a host of questions about, once Congress has concluded that it has a duty to call an Article V convention, how that call should be implemented and how a convention should operate. Congress has taken at least some initial steps toward legislatively answering these questions. In 1953, for example, the House Judiciary Committee released a report looking at the campaign to call an Article V convention for limiting the federal government’s taxing power. It included a draft bill to establish procedures for “transmitting, receiving, or recording applications from the several States.”
Between 1963 and 1969, 33 states applied for an Article V convention in response to the Supreme Court’s decision in Reynolds v. Sims that state legislative districts must be generally equal in population. While that total, just one short of the threshold, did not result in Congress proposing its own amendment, Senate Judiciary Committee chairman Sam Ervin (D-NC) did introduce legislation to regulate the Article V convention process.
Current Article V Convention Efforts. The Convention of States is an example of a recent grassroots effort to seek an Article V convention, launching its campaign in 2013. The group has clearly studied the history, scholarship, and commentary related to the Article V convention process and is attempting to address, or at last minimize uncertainty over, the kind of issues and questions noted above. They advocate each state passing the identical application for “the calling of a convention of the states limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal, and limit the terms of office for its officials and for members of Congress.”
This strategy addresses the issues discussed above in several ways. Identical resolutions raise no issues about consistency of language. Referring to this as a “convention of the states” maintains the link between the states making the application and what the convention will do. And this model resolution identifies the scope of the convention with enough specificity to identify the convention’s boundaries without requiring elements that might invite disagreements that could prevent a reasonable outcome.
Ratifying Constitutional Amendments
As noted above, states send their ratification resolutions to the Office of the Federal Register. A federal statute provides that, when an “amendment…has been adopted, according to the provisions of the Constitution,” the Archivist is required to publish the amendment, “with his certificate, specifying the States by which the same may have been adopted, and that the same has become…a part of the Constitution of the United States.”
As the Justice Department explains, the constitutional amendment process is “self-executing upon completion.” An amendment is proposed upon passage of the appropriate joint resolution by the necessary two-thirds margin. A proposed constitutional amendment becomes part of the Constitution, and the amendment process comes to an end, when a proposed amendment is ratified by three-fourths of the states (today, 38 of 50 States). The Archivist’s certification and publication, while required by statute, merely provide “official notice” that the amendment process has been completed.
The American people alone have the power to revoke or amend the Constitution because they constitute the authority that made it. They do so through the process outlined in Article V, which provides two comparable or parallel methods of proposing amendments: two-thirds of Congress or a convention called by Congress on application by two-thirds of the states. In either case, a proposed amendment becomes part of the Constitution upon ratification by three-fourths of the states.
The Article V convention method of proposing constitutional amendments has yet to be employed directly, though it has pushed Congress to propose amendments. Addressing the questions that remain about state applications, Congress’ authority, and convention operation must be informed by both the nature of an Article V convention as a creation of the states and the Framers’ objective to minimize or prevent congressional interference.
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