Amending the US Constitution, History of

The fifty-five men who gathered in Philadelphia in the summer of 1787 sought to alter the terms of United States governance. They were dissatisfied with their rigid existing government under the Articles of Confederation, not to mention the previous systems imposed on them by Great Britain, altered by Britain without their consent, and against which they had rebelled. They wanted to avoid being put in any such position again. Thus they sought to create an effective legal instrument to define and limit government powers as well as one that could be altered by means short of revolution or coup d'etat. They sought a government that would perform those tasks, and only those tasks, that political society desired of it. One of their guiding principles, drawn from Enlightenment philosophers John Locke and Jean Jacques Rousseau ( 1712–1778 ), was that their constitution, or basic framework of government structure, as well as the duties, rights, and limits ought to be approved by the people it would govern. The same would hold true for any subsequent change, or amendment, of the United States Constitution.

Following the Declaration of Independence in 1776, American states put constitutions into effect that usually contained specific provisions for their own amendment. The federal Articles of Confederation did likewise, stipulating that a majority of the Congress could initiate change in constitutional arrangements, but these would only take effect if the legislatures of every state endorsed the revision. As the first US government began to function in the midst of ongoing war with Great Britain, deficiencies in the Articles of Confederation became apparent. Efforts to alter the terms of the Articles, however, failed repeatedly when they did not win the unanimous support of the states. The need to devise satisfactory amendments to the Articles propelled the meeting of the 1787 convention in Philadelphia. The delegates agreed with John Locke's belief that a sovereign people had the right to constitute a new government when previous arrangements proved wanting and when representatives specifically chosen for the purpose agreed to new provisions.

DEVISING THE CONSTITUTION

The 1787 decision to construct an entirely new basic instrument of government, submit it for the approval of the Confederation Congress, and stipulate that it would go into effect if ratified by conventions elected by the people in at least nine of the thirteen states was a radical approach to the problem of amending the Articles of Confederation. If the states initially embraced the new instrument, they would also be agreeing to an amending process similar to ratification. Article V of the new Constitution provided that it could be amended if such a proposal came from two-thirds of each house of Congress, or in the absence of congressional action, if twothirds of the states summoned another constitutional convention. In any case, amendments proposed by either means would take effect only if ratified by three-fourths of the states through conventions of popularly elected delegates or decisions of states’ legislatures, whichever method Congress chose. States would be bound to accept altered arrangements even without their unanimous consent. Formal amendment as stipulated by Article V was the only acknowledged means of adding to the Constitution, which labeled itself “the supreme law” and put itself above legislative, executive, or judicial acts. The Founders set a bold standard that amendment could fundamentally reconfigure a government however the polity desired, not merely make modest revisions in its terms. Without carrying out the explicit procedures of Article V, no authentic constitutional reconfiguration was possible.

The principal objection to the proposed Constitution was its failure to guarantee individual rights against abusive conduct by government. Faced with stiff, and potentially fatal, resistance to ratification in first the Massachusetts convention and subsequently in Virginia, New York, and elsewhere, the Constitution's proponents narrowly carried the day by calling attention to the availability of the amending process and agreeing to submit proposals for a Bill of Rights. The reassurance provided by the existence of Article V proved crucial to the ratification of the Constitution by the requisite number of states.

FIRST AMENDING EFFORTS ( AMENDMENTS 1–12 )

Fulfilling the pledge to provide a Bill of Rights through constitutional amendment became the highest priority of James Madison, one of the Constitution's most influential Framers and a leading member of the first House of Representatives. During the first session of Congress in 1789, Madison and his colleagues in the House and Senate refined a long list of proposals from the various state ratification conventions into a package of twelve amendments that they voted overwhelmingly to append to the Constitution. Two years later ten of the twelve measures, subsequently referred to as the Bill of Rights, were ratified by enough state legislatures to put them into effect. Anti-Federalist criticism of the Constitution was undermined by this effective employment of the amending process.

As the Constitution began to function, flaws in the document soon became evident. The Eleventh and Twelfth Amendments were easily adopted in 1798 and 1804 to remedy problems involving suits against state governments by citizens of other states and the lack of clarity in the Electoral College process for president and vice president, a matter that became obvious during the election of 1800. Thereafter, given the cumbersome nature of the amending process and its requirement of supermajority consensus, a preference soon emerged for resolving most constitutional disputes through judicial review. Prior to 1860 Congress approved only one more amendment, a measure forbidding grants of foreign titles to American citizens, but it failed to win ratification. As the sectional crisis came to a head following the election of Abraham Lincoln, Congress made a desperate effort to avert conflict by approving an amendment to preserve slavery in states where it existed. Like its predecessor, this effort at a Thirteenth Amendment failed to be ratified.

RECONSTRUCTING THE CONSTITUTION ( AMENDMENTS 13–15 )

The Civil War led to a fundamental reformulation of the Constitution through three amendments. Congress designed them to confirm the Union victory and required Southern states’ acceptance as the price of regaining full participation in national affairs. The Thirteenth Amendment ( 1865 ) abolished slavery, demonstrating that the amending process could reverse, not merely modify, previous constitutional arrangements. The Fourteenth Amendment ( 1868 ) defined citizenship as a birthright, regardless of race or previous condition of servitude, and promised equal protection and due process of law to all citizens. This complex amendment affirmed the dominant authority of the national government over the states in the federal relationship. The Fifteenth Amendment ( 1870 ) took the further step of guaranteeing adult male citizens suffrage regardless of race. Although Southern unhappiness about coerced ratification would persist, the process of adopting the Reconstruction Amendments met the Article V standard; they reflected a choice made by the South to accept its military loss and take the necessary steps to regain its place in national government.

PROGRESSIVE AMENDING ( AMENDMENTS 16–19, 21 )

Doubts grew as to whether the amending process could function in ordinary circumstances, as it was not employed again for more than forty years. The Supreme Court's 1895 rejection of an income tax and the Senate's refusal to accept the increasing calls for popular election of its members (initially selected by state legislatures) led to public demands for constitutional reform. The House of Representatives and many state legislatures embraced both proposals, and the Senate finally capitulated, fearing that if it did not, the states would seek a constitutional convention beyond congressional control. The adoption and ratification of the Sixteenth (income tax) and Seventeenth (direct election of senators) Amendments were both completed in 1913, stimulating successful efforts for more amendments.

In 1913 long-standing temperance and women's rights campaigns turned to quests for constitutional amendments to achieve their goals. Mobilizing public pressure on Congress and benefiting from the crisis of World War I ( 1914–1918 ), both crusades gained success by the end of the decade. Congressmen who did not favor Prohibition, but hoped to make the issue go away, agreed to vote for the amendment if a provision was added requiring ratification within seven years, something they thought unlikely. This first effort to frustrate amendment by placing a time limit on the Article V process failed miserably. The Eighteenth Amendment was ratified in 1919, thirteen months after Congress approved it. The Nineteenth Amendment encountered more resistance, but ratification of woman suffrage was completed shortly before the 1920 election.

SUCCESS AND FAILURE IN MODERN AMENDING ( AMENDMENTS 20, 22–27 )

The amending process was used repeatedly thereafter to make consequential changes in the Constitution, but ones that seemed far less dramatic than alcohol prohibition, income taxation, or suffrage expansion. Amendments reset the calendar to initiate presidential and congressional terms more promptly after a national election, limit a president to two terms, grant the District of Columbia three electoral votes, eliminate poll taxes, establish procedures to deal with presidential disability and fill vice presidential vacancies, and lower the suffrage age from twenty-one to eighteen. All were quickly ratified once adopted by Congress.

The steepest hurdle in the amending process was long thought to be obtaining congressional approval. More than 10,000 amendments proposed in the House or Senate failed that test in the Constitution's first two centuries. Only a few measures obtained the required two-thirds congressional approval but then fell short of ratification by three-fourths of the states. The ERA, which finally won congressional approval in 1972, came only three states short of the necessary thirty-eight. Like prohibition, it had been placed under a ratification time limit, which Congress extended when the amendment appeared likely to fail. Because it did not acquire sufficient ratifications, no congressional or judicial ruling on the validity of the time limit or its extension was made.

The significance of ratification time limits was underscored in 1992, as sufficient states completed ratification of an amendment approved by Congress in 1789 as a part of the original twelve. After 203 years, words drafted by James Madison were added to the Constitution in a Twenty-Seventh Amendment that prohibited Congress from altering its own salary until after an election. Despite doubts regarding the amendment's viability after such a long time, Congress chose not to challenge the stark language of Article V as to the bounds of the amending process, at least in the absence of a stated time limit. At the same time, the Senate defeated a motion to declare the four other congressional-approved, but long unratified, though not time-limited, amendments as no longer eligible for ratification.

As its repeated use over more than two centuries has demonstrated, the Constitution's Article V amending process provides a workable mechanism for altering the basic terms of government when a supermajority consensus can be achieved. The failure to bring the process to a successful conclusion often reflects a general unwillingness to tamper with the Framers’ design, widely regarded as a work of genius. At times an inability to achieve the required federal and state supermajority consensus in the face of sectional, ideological, and partisan divisions has also been involved. Yet each successful operation of the amending process has provided a renewed fundamental endorsement of the living, evolving Constitution, one whose unamended features gain reaffirmation whenever other terms are altered.

SEE ALSO Civil War Amendments ; Prohibition ; Ratification of the US Constitution ; US Bill of Rights .

BIBLIOGRAPHY

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Berry, Mary Frances. Why ERA Failed: Politics, Women's Rights, and the Amending Process of the Constitution. Bloomington: Indiana University Press, 1986.

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Levinson, Sanford. Responding To Imperfection: The Theory and Practice of Constitutional Amendment. Princeton, NJ: Princeton University Press, 1995.

Levinson, Sanford. Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It). New York: Oxford University Press, 2008.

Rutland, Robert Allen. The Birth of the Bill of Rights, 1776–1791. Chapel Hill: University of North Carolina Press, 1955.

David E. Kyvig
Northern Illinois University