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Article V

The Amendment Process

Article V establishes how the Constitution can be amended — a deliberately difficult process requiring broad consensus across multiple levels of government. It balances the need for constitutional stability with the ability to adapt to changing circumstances.

Overview

Article V is the Constitution's "self-correction mechanism" — it allows the Constitution to be amended without requiring a complete rewrite. The process is intentionally difficult, requiring supermajorities at both proposal and ratification stages, ensuring that only amendments with broad, sustained support become part of our fundamental law.

This section uses the TICRI Constitutional Breakdown methodology to provide:

  • 📜 Exact Constitutional Text
  • 💭 Plain English Translation
  • ⚡ Government Powers Created
  • 🚫 Government Restrictions
  • ❌ What It Does NOT Say
  • ⚖️ Supreme Court Interpretations

Article V — Full Text

📜 Exact Text

"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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

💭 Plain English

Amendments can be proposed in two ways: (1) by a 2/3 vote in both houses of Congress, or (2) by a convention called when 2/3 of state legislatures request it. Proposed amendments must then be ratified (approved) by either 3/4 of state legislatures or 3/4 of state conventions, whichever method Congress chooses. There is one permanent limitation: no state can lose its equal representation in the Senate without its consent.

The Amendment Process: Two Pathways

Step 1: Proposal (Choose One)

Method A: Congressional Proposal
  • 2/3 vote in House (290 of 435)
  • 2/3 vote in Senate (67 of 100)
  • Used for all 27 amendments
  • Most common method
Method B: Convention
  • 2/3 of state legislatures (34 states) petition Congress
  • Congress must call convention
  • Convention proposes amendments
  • Never used in U.S. history

Step 2: Ratification (Congress Chooses)

Method A: State Legislatures
  • 3/4 of states (38 of 50 states)
  • State legislatures vote to ratify
  • Used for 26 of 27 amendments
  • Most common method
Method B: State Conventions
  • 3/4 of states (38 of 50 states)
  • Special state conventions vote
  • Used only for 21st Amendment (repeal of Prohibition)
  • Rare method

Key Point: Both steps require supermajorities. This means amendments need broad, sustained consensus across different levels of government to succeed — preventing hasty changes and ensuring constitutional stability.

⚡ Government Powers Created

🏛️ Congressional Powers

  • Propose Amendments — With 2/3 vote in both chambers
  • Choose Ratification Method — Decide whether states ratify by legislature or convention
  • Set Ratification Deadlines — Can impose time limits (typically 7 years)
  • Call Convention — Must call convention if 2/3 of states apply
  • Congress has discretion over amendment procedures and timing

🗳️ State Powers

  • Petition for Convention — 2/3 of states can force Congress to call convention
  • Ratify or Reject — 3/4 of states must approve for amendment to become law
  • Veto Power — 13 states can block any amendment (more than 1/4)
  • States are essential gatekeepers of constitutional change

📝 Amendment Power Itself

  • Constitution Can Be Changed — Not a static document
  • Formal Process Required — Cannot amend by custom, practice, or interpretation
  • Becomes Part of Constitution — Amendments have equal status to original text
  • 27 amendments ratified since 1791

🚫 Government Restrictions & Limits

🔒 Permanent Limitation

  • Equal Senate Representation Protected — No state can lose equal suffrage in Senate without its consent
  • Only unamendable provision in Constitution
  • Protects small-state interests permanently
  • Could theoretically be circumvented by first amending Article V itself, then changing Senate representation

⏱️ Historical Limitations (Expired)

  • Slave Trade Protection (until 1808) — No amendments affecting slave importation clauses before 1808
  • This limitation expired in 1808 and is now void
  • Protected slavery temporarily as part of constitutional compromise

🚧 Procedural Limitations

  • Cannot Amend Without Following Article V — No shortcuts or workarounds
  • Supermajorities Required — 2/3 to propose, 3/4 to ratify
  • President Has No Role — Cannot veto or approve amendments
  • States Cannot Rescind Ratification — Once ratified, generally cannot be undone
  • Process designed to be difficult to prevent frivolous changes
Why So Difficult?

The Framers made amendment intentionally hard to prevent temporary majorities from rewriting fundamental law on a whim. Constitutional stability requires broad, sustained consensus. The process filters out passing fads and ensures only amendments with deep, widespread support become part of our fundamental law.

❌ What Article V Does NOT Say

  • Does NOT define how a constitutional convention would work — No rules on convention procedures, delegates, or scope
  • Does NOT specify if convention can be limited to one topic — Debate over whether convention could become "runaway"
  • Does NOT set time limits for ratification — Congress adds those (typically 7 years)
  • Does NOT allow states to rescind ratification — Unclear if states can change their vote
  • Does NOT give President any role — President cannot sign or veto amendments
  • Does NOT limit subject matter of amendments — Except equal Senate representation and expired slave trade provision
  • Does NOT require popular vote — People vote only if state uses convention method
  • Does NOT specify minimum number of states — Uses fraction (3/4), adjusts as states added

⚖️ Key Supreme Court Cases

  • Hollingsworth v. Virginia (1798) — President's signature not required for constitutional amendments
  • Hawke v. Smith (1920) — State legislatures ratify; state cannot require referendum to approve legislature's ratification
  • National Prohibition Cases (1920) — Courts cannot question "wisdom" of amendments; if properly ratified, amendment is valid
  • Dillon v. Gloss (1921) — Congress can set reasonable time limits for ratification
  • Coleman v. Miller (1939) — Most amendment questions are political questions for Congress to decide
  • Idaho v. Freeman (1981) — Held states cannot rescind ERA ratification (later mooted when amendment failed)
Political Question Doctrine

Courts generally treat amendment procedures as "political questions" for Congress to resolve. Courts won't second-guess whether enough time has passed, whether states followed proper procedures, or whether ratification was "valid." Congress has final say on whether an amendment has been properly ratified.

📊 Amendment History & Statistics

By the Numbers

  • 27 amendments ratified (including Bill of Rights)
  • 10 amendments in Bill of Rights (1791)
  • 17 amendments since Bill of Rights
  • ~11,000+ amendments proposed in Congress
  • 33 amendments sent to states by Congress
  • 27 ratified by states (82% success rate once proposed)
  • 0 conventions ever called
  • Last amendment: 27th Amendment (1992)

Waves of Amendment Activity

  • 1791: Bill of Rights (Amendments 1-10)
  • 1865-1870: Reconstruction Amendments (13th, 14th, 15th) — abolished slavery, equal protection, voting rights
  • 1913-1920: Progressive Era (16th-19th) — income tax, direct election of senators, Prohibition, women's suffrage
  • 1961-1971: Modern amendments (23rd-26th) — D.C. voting, poll tax ban, succession, 18-year-old vote
  • 1992: 27th Amendment (Congressional pay) — originally proposed 1789, ratified 203 years later!

Notable Failed Amendments

  • Equal Rights Amendment (ERA) — Passed Congress 1972, fell 3 states short of ratification
  • District of Columbia Voting Rights — Passed Congress 1978, ratified by only 16 states
  • Child Labor Amendment — Passed Congress 1924, never ratified (issue addressed by statute instead)
  • Balanced Budget Amendment — Repeatedly proposed, never passed Congress
  • Flag Desecration Amendment — Repeatedly proposed, never passed Congress

Convention Applications

While no Article V convention has ever been called, states have submitted applications on various topics:

  • Balanced Budget Amendment — 28-34 states (depending on counting) have applied
  • Term Limits for Congress — Several states have applied
  • Direct Election of President — Historical applications
  • Controversy exists over counting applications, time limits, and whether they can be rescinded

Formal vs. Informal Constitutional Change

✅ Formal Amendment (Article V)

  • Explicit text changes to Constitution
  • Requires supermajorities
  • 27 successful amendments
  • Slow, deliberate, difficult process
  • Changes are permanent and unambiguous
  • Examples: Bill of Rights, abolition of slavery, women's suffrage

📋 Informal Change (Non-Article V)

  • Constitutional interpretation and practice
  • No formal text change
  • Happens continuously
  • Judicial decisions, customs, statutes
  • Can evolve over time
  • Examples: Executive agreements, administrative agencies, judicial review

Key Distinction: Article V creates the only method for formally changing the Constitution's text. However, much constitutional development happens through interpretation, custom, and practice. The combination of formal difficulty and informal flexibility allows the Constitution to remain both stable and adaptable.

❓ Unresolved Questions About Article V

🏛️ Constitutional Convention Questions

  • Can states limit a convention to one topic, or could it become a "runaway convention"?
  • How are delegates chosen? Do states get equal votes or proportional representation?
  • What are the convention's procedural rules?
  • Can Congress refuse to call a convention even if 2/3 of states apply?
  • Must state applications be identical, or can they vary in wording?

📅 Timing and Rescission Questions

  • Can states rescind their ratification before 3/4 threshold is reached?
  • Is there a time limit for ratification if Congress doesn't set one?
  • Can Congress extend ratification deadlines?
  • Can an amendment be ratified centuries later? (27th Amendment suggests yes)

🔍 Substantive Limits Questions

  • Are there implied limits on what can be amended (e.g., can you amend away free speech)?
  • Could an amendment violate "unamendable" principles of republican government?
  • Can equal Senate representation protection be circumvented by first amending Article V?

Political Question Doctrine: Most courts would likely treat these as political questions for Congress and the states to resolve, not judicial questions. This means the political branches have primary responsibility for interpreting Article V's procedures.

Article V Summary

Article V provides the Constitution's self-correction mechanism — a deliberately difficult process requiring broad consensus at both proposal (2/3) and ratification (3/4) stages. This high bar ensures constitutional stability while allowing adaptation when needed.

Two proposal methods (congressional vote or state convention) and two ratification methods (state legislatures or state conventions) provide flexibility, but all paths require supermajorities across multiple levels of government. Only 27 amendments have succeeded in over 230 years — proof of the process's difficulty.

The sole permanent limitation — no state can lose equal Senate representation without consent — protects small-state interests. The difficult amendment process filters out temporary passions and ensures only amendments with deep, sustained support become part of our fundamental law, balancing constitutional stability with democratic adaptability.