Article Five of the United States Constitution describes the process whereby the Constitution may be amended. Amendments may be proposed by the U.S. Congress or a constitutional Convention. To be valid, they must be ratified by either legislatures or Conventions in three-fourths of the states.
Whenever they “deem it necessary,” two-thirds of each House of Congress may propose amendments. This means two-thirds of those present — assuming that a quorum exists at the time that the vote is cast — and not a two-thirds vote of the entire membership elected and serving in the two Houses of Congress. It was suggested that the two Houses first pass a resolution indicating that they deem an amendment necessary, but this procedure has never been used; the two Houses instead directly proceed to the passage of a joint resolution itself proposing the amendment. Amendments have always been proposed as Articles in addition to the original Constitution, instead of being incorporated into the main body of the document.
If two-thirds of the legislatures of the states so request, Congress is required to call a Convention for the purpose of proposing amendments. Never, however, have the requisite number of states made a request, though several proposals have come within one or two of the required figure. The Constitution does not make clear how the Convention is to be composed; presumably, Congress — through a federal statute — would be able to determine how the delegates are chosen and to provide for other procedural issues.
The President has no formal role in proposing constitutional amendments. Article One does provide, “every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives.” One may further note that the Constitution requires the concurrence of two-thirds of both the House and the Senate to resolutions proposing amendments. In Hollingsworth v. Virginia (1798), however, the Supreme Court held that it was not necessary to present constitutional amendments to the President for signature and, by the same logic, the President is powerless to veto a proposed constitutional amendment. It suggested, “as two thirds of both Houses are required to originate the proposition, it would be nugatory to return it with the President’s negative, to be repassed by the same number.”
Amendments must be ratified by the legislatures of, or by conventions in, three-fourths of the states. It is not mandatory that amendments proposed by Congress be ratified by legislatures nor is it mandatory that amendments proposed by a Convention be ratified by state conventions; each mode of proposal may be used with either mode of ratification. Of the twenty-seven amendments to the Constitution that have been ratified, Congress has specified that only one — the Twenty-first Amendment — which became part of the Constitution in 1933 be ratified by conventions in the several states. Most states hold elections specifically for the purpose of choosing delegates, but that is not a requirement. New Mexico, for instance, provides that the members of the state legislature be delegates at such ratification conventions.
The validity of ratifications that states later purported to rescind, and of subsequent ratifications of amendments previously rejected by states, was addressed by Secretary of State William Seward in 1868 when he declared the Fourteenth Amendment to have been properly ratified and a part of the Constitution. Two of the ratifying states, Ohio and New Jersey, had issued resolutions withdrawing their earlier ratifications; while three other states had previously rejected the Amendment and then ratified it. In Coleman v. Miller (1939), the Supreme Court declared the question non-justiciable, leaving the issue to Congress and accepting the precedent set by the Fourteenth Amendment. It would therefore appear that states may not undo prior ratifications of amendments, although they may ratify an amendment which they had previously rejected. This issue became important again in recent decades when several state legislatures passed resolutions attempting to repeal their previous ratifications of the Equal Rights Amendment.
The Constitution does not expressly provide for a deadline on the state legislatures’ or state conventions’ consideration of proposed amendments. In Dillon v. Gloss (1921), the Supreme Court held that “First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.” However, in the aforementioned Coleman v. Miller decision, the Supreme Court held the question of timeliness of ratification to be non-justiciable, again leaving the issue to Congress. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment; the Twenty-seventh Amendment, for example, was proposed in 1789 and ratified more than 200 years later in 1992.
Beginning in 1917, Congress has sometimes imposed deadlines on proposed amendments. The limitation originally took the form of a clause in the amendment, “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.” Such a clause may be found in the Eighteenth, Twentieth, Twenty-first and Twenty-second Amendments. Since then, Congress has included the limitation not in the text of the amendment, but in the resolution proposing it.
The Supreme Court has upheld Congress’s power to set such deadlines on ratification. The power of Congress to extend such limitations, however, has not been settled. In 1978, Congress extended, for instance, the seven-year limit on the ratification of the Equal Rights Amendment by three years from a March 22, 1979, deadline to June 30, 1982, deadline. It was accepted that if the deadline had been contained within the actual text of the amendment, Congress could not extend it as doing so would involve changing an amendment already ratified by the states. In the case of the Equal Rights Amendment, however, it was argued that since the original March 22, 1979, deadline was contained in only the resolution proposing the amendment — rather than in the actual text of the amendment itself — that that particular stipulation could be itself amended. A district court, however, found that Congress did not have the authority to extend the deadline, even when contained within the proposing resolution. Before the matter could be appealed, the three-year extension expired, and the issue therefore became moot. To avoid this controversy with the 1978 constitutional amendment proposed to grant congressional representation to the residents of Washington, D.C., Congress returned to the habit of placing the deadline within the actual text of the amendment itself. That particular proposed amendment expired unratified in 1985.
Twenty-seven amendments have been ratified by the states. Four proposed amendments passed by Congress remain pending for ratification: Article One of the original Bill of Rights (proposed in 1789), the Titles of Nobility Amendment (proposed in 1810), the Corwin Amendment (proposed in 1861) and the Child Labor Amendment (proposed in 1924). Two other proposed amendments are no longer pending before the state legislatures — the Equal Rights Amendment (proposed in 1972 and expired, depending upon your point of view, in either 1979 or in 1982) and the District of Columbia Voting Rights Amendment (proposed in 1978 and expired in 1985).
The scope of the power to amend the Constitution is with few limits. The original Constitution provided certain restrictions that applied until 1808. Before that year, no Amendment affecting the first and fourth clauses of Section Nine of Article One could be made. The first clause referred to prevented Congress from prohibiting the slave trade until 1808. No Amendment has been made to this clause, as its effect expired in 1808, the same year in which its amendment became permissible. The fourth clause bars the imposition of direct taxes or capitations, except in proportion to the population of states (counting free persons and three-fifths of “others,” i.e., slaves). The fourth clause has been superseded in part by the Sixteenth Amendment in 1913.
The only remaining restriction on Congress’s power to amend the Constitution relates to the Senate, in which each state is represented by two members. The Constitution prevents the usage of an amendment to deprive a state of equal suffrage in the Senate without its consent.
The Corwin amendment, which was proposed by Congress in 1861, sought to prevent the usage of a constitutional amendment to bar slavery. The amendment read, “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” The amendment was ratified by two states before the Civil War broke out; no further states have ratified it since.