Article V of the United States Constitution provides several alternative processes for amending that document. Congress by a two-thirds vote in both the House of Representatives and Senate may propose a constitutional amendment that must be ratified by either three-fourths of all state legislatures or by special conventions in threefourths of the states, with Congress choosing the method of state ratification. Alternatively, two-thirds of the states may call for a constitutional convention, whose proposed amendments must be ratified by either three-fourths of all state legislatures or by special convention in three-fourths of the states, with Congress again choosing the method of state ratification. With one exception, every constitutional amendment passed under Article V has been proposed by a two-thirds vote in both the House of Representatives and the Senate and then ratified by three-fourths of all state legislatures. The Twenty-First Amendment, which repealed Prohibition (the Eighteenth Amendment), was proposed by a two-thirds vote in both the House of Representatives and the Senate and then ratified by special conventions in three-fourths of the states. No convention for proposing constitutional amendments has ever taken place.
The overwhelming number of proposed constitutional amendments have been ratified or rejected after a straightforward and uncontroversial application of Article V. There was substantial disagreement in 1789 over whether the Constitution should include a Bill of Rights and, if so, what rights should be included. There was agreement, however, that Congress had followed the constitutional rules when proposing twelve amendments and that, as of 1791, ten of those amendments had been ratified by three-fourths of the states, but two had not.
The Thirteenth and Fourteenth Amendments were procedurally and substantively controversial. The Thirteenth Amendment's prohibition of slavery was ratified only because Congress elected not to count Confederate states, whose representatives were not seated in the House or Senate in the wake of the Civil War, when determining whether a constitutional majority of three-fourths of the states had ratified. Proponents of the Fourteenth Amendment, which required state governments to respect certain fundamental rights, could not, however, convince threefourths of the states who remained in the Union to ratify those provisions. Republicans secured the ratification of those provisions only by requiring southern states to ratify that amendment as a condition for gaining representation in Congress and refusing to allow several northern states to rescind their ratification of the Fourteenth Amendment. For many years, southerners insisted that the Fourteenth Amendment had not been constitutionally ratified, but their pleas to undo it were not successful.
The Supreme Court in Coleman v. Miller, 307 U.S. 433 ( 1939 ), put to rest any debate over the validity of the Civil War Amendments by holding that Congress was responsible for determining whether a proposed amendment had been constitutionally ratified. The precise issue in Coleman was whether Congress was constitutionally obligated to place a time limit on state decisions to ratify a constitutional amendment, in this case, the proposed Child Labor Amendment of 1917. The Supreme Court's decision that Congress could allow states unlimited time to ratify an amendment had no bearing on that measure, which was never ratified by three-fourths of the states; but it did bear fruit in 1992, when the total number of states ratifying an amendment proposed more than two hundred years earlier, in 1789, limiting congressional pay raises finally passed the three-fourths bar and became the Twenty-Seventh Amendment.
Congress under Coleman also has the power to determine when two-thirds of the states have called for a constitutional convention. Since the 1970s, thirty-four states have called for such a convention, but some have rescinded their resolutions. Moreover, some states have called for a constitutional convention specifically to consider a balanced-budget amendment, while other state resolutions are more open-ended. Although a Congress interested in a constitutional convention might have interpreted these events as meeting the constitutional standard, taking actions similar to the Reconstruction Congress in 1868, the contemporary Congress has not, and as long as the Supreme Court remains committed to Coleman that nondecision is final unless reversed by Congress.
Some commentators question whether Article V provides the only legitimate procedure for amending the Constitution. Bruce Ackerman of Yale Law School ( 1991, 2014 ) suggests that political movements during the Civil War, the New Deal era, and the civil rights era amended the Constitution through a combination of popular mobilization, electoral mandates, and retreats on the part of those institutions that initially challenged their constitutional vision. Ackerman's thesis is, unsurprisingly, controversial. Nevertheless, he is clearly correct to note that Americans have experienced substantial constitutional change without having experienced a constitutional amendment passed consistently with Article V. Consider racially segregated schools. During the late nineteenth century, the vast majority of Americans and constitutional experts found little troubling about separate schools for white children and children of color. In the early twenty-first century, an overwhelming consensus exists that such schools violate the equal protection clause of the Fourteenth Amendment. Constitutional change has clearly taken place, whether we describe that change as a change in the way the Constitution has been interpreted or a de facto constitutional amendment.
The history of racial segregation in the United States highlights how constitutional change occurs more often than the small number of constitutional amendments might suggest. The Constitution of the United States is one of the most difficult constitutions in the world to amend. Most constitutions, state or national, do not mandate supermajoritarian processes for amendment or mandate a far less onerous supermajoritarian process. Most state constitutions, for example, can be amended by a majority vote of the citizenry. One consequence of the difficulty of constitutional amendment is that much constitutional change is driven “off the books” ( Griffin 1995, 172 ). Constitutions that are hard to amend, some evidence suggests, are loosely interpreted ( Lutz 1995 ). This looseness nevertheless has limits. Americans may be able to reinterpret the equal protection clause of the Fourteenth Amendment because that clause is phrased in very general language. Americans, however, cannot change the constitutional requirement that all states have two representatives in the Senate without passing a constitutional amendment, which would be very difficult because the word “two” is not susceptible to different interpretations. Whether the extreme difficulty of changing basic constitutional structures promotes stability or stagnation remains a subject of dispute.
SEE ALSO Amending the US Constitution, History of .
Ackerman, Bruce. We the People, Vol. 1: Foundations. Cambridge, MA: Harvard University Press, 1991.
Ackerman, Bruce. We the People, Vol. 3: The Civil Rights Revolution. Cambridge, MA: Harvard University Press, 2014.
Graber, Mark A. A New Introduction to American Constitutionalism. Oxford and New York: Oxford University Press, 2013.
Griffin, Stephen M. “The Nominee is … Article V.” Constitutional Commentary 12, no. 2 (1995): 171.
Kyvig, David E. Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995. Lawrence: University Press of Kansas, 1996.
Levinson, Sanford, ed. Responding to Imperfection: The Theory and Practice of Constitutional Amendment. Princeton, NJ: Princeton University Press, 1995.
Lutz, Donald S. “Toward a Theory of Constitutional Amendment.” In Responding to Imperfection: The Theory and Practice of Constitutional Amendment, edited by Sanford Levinson, 237–74. Princeton, NJ: Princeton University Press, 1995.
Murphy, Walter F. Constitutional Democracy: Creating and Maintaining a Just Political Order. Baltimore: Johns Hopkins University Press, 2007.
Mark A. Graber
University of Maryland Carey School of Law