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.
Hugh and Hazel Darling Foundation Professor of Law and Director of the Center for the Study of Constitutional Originalism at the University of San Diego Law School
Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School
Article V of the Constitution says how the Constitution can be amended—that is, how provisions can be added to the text of the Constitution. The Constitution is not easy to amend: only twenty-seven amendments have been added to the Constitution since it was adopted.
Article V spells out a few different ways in which the Constitution can be amended. One method—the one used for every amendment so far—is that Congress proposes an amendment to the states; the states must then decide whether to ratify the amendment. But in order for Congress to propose an amendment, two-thirds of each House of Congress must vote for it. And then three-quarters of the states must ratify the amendment before it is added to the Constitution. So if slightly more than one-third of the House of Representatives, or slightly more than one-third of the Senate, or thirteen out of the fifty states object to a proposal, it will not become an amendment by this route. In that way, a small minority of the country has the ability to prevent an amendment from being added to the Constitution.
Article V does potentially provide a way for the states to bypass Congress, although it has never been used. Article V says that “on the Application of two thirds of the Legislatures of the several States, [Congress] shall call a Convention for proposing amendments.” The convention can propose amendments, whether Congress approves of them or not. Those proposed amendments would then be sent to the states for ratification. As with an amendment proposed by Congress, three-quarters of the states would have to ratify the amendment for it to become part of the Constitution.
Article V also allows Congress to choose between two ways that the states might ratify an amendment. An amendment can be ratified by the state legislature—the part of the state government that enacts laws for the state. But Congress can provide instead that the states must call conventions for the single purpose of deciding whether to ratify an amendment. So far, though, with one exception (the Twenty-First Amendment), every amendment has been ratified by state legislatures.
The amendments to the Constitution have come in waves. The first twelve Amendments, including the Bill of Rights, were added by 1804. Then there were no amendments for more than half a century. In the wake of the Civil War, three important Amendments were added: the Thirteenth (outlawing slavery) in 1865, the Fourteenth (mainly protecting equal civil rights) in 1868, and the Fifteenth (forbidding racial discrimination in voting) in 1870. At the time, there were questions about whether those Amendments had been properly ratified by the states, because it was unclear whether the Confederate states—which had seceded from the Union—were part of the United States again. Today, though, no one doubts that those Amendments are part of the Constitution.
After the Civil War Amendments, another forty-three years passed until the Constitution was amended again; then four more Amendments (Sixteen through Nineteen) were added between 1913 and 1920. Seven more amendments were adopted at pretty regular intervals between 1920 and 1971, but except for one very unusual amendment, there have been no amendments to the Constitution since 1971.
The unusual amendment is the Twenty-Seventh Amendment. It was proposed with the original Bill of Rights, in 1789, and was ratified by a half-dozen states within a few years—and then mostly ignored. But Article V says nothing about the time period within which three-quarters of the states have to ratify a proposed amendment. From time to time, another state would add its ratification. Finally, in 1992, more than two hundred years after the Amendment was first proposed, the ratifications finally reached the three-quarters line, and the Twenty-Seventh Amendment has been considered part of the Constitution since then. For recent proposed amendments, though, Congress has specified that the amendment must be ratified within seven years or it would lapse, so this situation is unlikely to happen again.
But other issues might arise. For example, Article V says that an amendment that has been proposed to the states will become part of the Constitution if three-quarters of the states ratify it. What if a state ratifies quickly, but then, before many other states ratify, changes its mind and tries to rescind (that is, take back) its ratification—can a state do that? Some commentators would say no—once a state has ratified, that counts toward the required three-quarters, no matter what the state does later. But other commentators would say that a state can rescind its ratification so long as it does so before the amendment process has been completed. Thus, there is no definite answer to this question. This kind of uncertainty might be very troubling—we might not know for sure whether a proposed amendment was part of the Constitution or not.
Finally, Article V, while spelling out how the Constitution can be changed, made two things unchangeable—even through the difficult amendment process. One is that “no State, without its consent, shall be deprived of its equal Suffrage in the Senate.” So every state will have the same number of Senators, no matter how many members of Congress or other states want to change that part of our system (unless a state agrees to accept a smaller number of Senators). Article V also says, in language that is hard to follow and has no legal effect today, that until 1808, no amendment could limit the slave trade—a reminder that there are parts of the Constitution that we can be thankful were amended.
Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School
There are two important things to know about Article V, the part of the Constitution that spells out how to amend that document. The first is that it’s hard to amend the Constitution. The second is that amendments matter a lot less than most people think. Amendments change the text of the Constitution, but—the key point—very important changes happen even when the text of the Constitution stays the same. The Constitution, in practice, definitely changes, but amendments are not the main way that those changes happen.
These two things—how hard it is to amend the Constitution, and how so many changes happen without amendments—are opposite sides of the same coin. Because it is so hard to change the text, we have figured out other ways to make the kind of changes that you might expect to get from amending the text. A nation, like other living things, has to adapt if it is to survive. If one means of adaptation is closed off, it has to find another way. That is what the U.S. constitutional system has done. Our constitutional system—our actual system, in the way it actually works, as opposed to what’s written down on paper—is changed by Congress, the President, the courts, and often just by changed understandings among the people, even when the text stays the same.
Sometimes people say that while the words of the text of the Constitution haven’t changed, the “interpretation” of the Constitution has. There’s no harm in thinking of it that way. But however you explain it, the fact is that our understanding of what the Constitution means has changed enormously over time, in ways that don’t have a lot to do with constitutional amendments.
Specifically, these four things are, I think, true: (1) There have been important changes in the basic nature of our government that took place without any change in the written Constitution. (2) Several amendments that seemed to change things were added to the Constitution after the change had already happened in most of the country. The amendment didn’t cause the change; it just confirmed it. (3) A couple of times, a proposal for a constitutional amendment was rejected—and things changed anyway, in the way the amendment would have changed them. The amendment was formally rejected—it’s not in the Constitution’s text—but, in practice, it might as well have been adopted. (4) Some amendments that were added to the text tried, but failed, to change things when they were adopted; but many years later, when the country was ready, it changed in the way the amendment had supposedly required long before.
Here are some examples of each.
(1) Changes that happen even though there’s no amendment. For a long time after the nation was founded, the federal government did not do a lot. State governments were much more important. That’s changed. Today, federal law affects every aspect of our lives. But you cannot trace that change to any constitutional amendment. Some people will say that, all along, the Constitution gave the federal government the potential to play that important role; the federal government just chose not to. Other people might say that the federal government should not be so powerful. But there is no denying this enormous change in our system, and there’s no amendment that caused it.
(2) Amendments that just confirmed a change that already happened. There are many examples of this, but here is one that a lot of people overlook. When the Constitution was first adopted, the people did not vote for United States Senators; a state’s Senators were elected by that state’s legislature. The Seventeenth Amendment provided that Senators are elected by popular vote. Many people say that the Seventeenth Amendment made an important change in our system, because it took power away from state governments.
Having Senators elected by the people, instead of by state legislators, may have been a big change. But the Seventeenth Amendment did not have much to do with it. Before the Seventeenth Amendment was adopted, most states had already cleverly figured out ways to make sure that the people—not state legislators—elected Senators. For example, several states held a popular vote for the Senate and, while officially that vote didn’t count, any state legislator who did not pledge to follow the result of that vote would have a disparaging label next to his name on the ballot. So, as you can imagine, the legislators followed the people’s decision. All of that happened before the Constitution was amended.
You can compare this change to a change in the way we elect the President. Formally, the President is elected by electors, not by the voters directly. Originally, the idea was that electors would be people with good judgment who would make up their own minds about who should be President. Now, for practical purposes, the electors vote automatically for the candidate who won the vote in their state. No constitutional amendment authorized this major change.
(3) Constitutional amendments that were rejected—but in practice, might as well have been adopted. There are a couple of examples, but the clearest one is the Equal Rights Amendment (the “ERA”), which would have forbidden the federal and state governments from denying equal rights on the basis of sex. Congress approved the amendment, but not enough states did, so it never became part of the Constitution. But the Supreme Court interpreted other parts of the Constitution to prevent sex discrimination, and today it is hard to identify any way in which the law would be different if the ERA had been formally added to the Constitution.
(4) Amendments that became effective only when the country had changed for other reasons. The Fifteenth Amendment supposedly guaranteed that people could not be kept from voting because of their race. It was added to the Constitution in 1870. But well into the middle of the twentieth century, African-Americans in many parts of the United States were kept from voting by illegal means. It wasn’t until the Voting Rights Act of 1965 that the promise of the Fifteenth Amendment was finally kept. If you just picked up a copy of the Constitution and read it, you would be completely misled about this disgraceful history. The Fourteenth Amendment, adopted in 1865, had a similar fate. It was intended to prevent many forms of discrimination against minorities. But its promise was not realized until almost a century later, during the civil rights era.
A case can be made that the earliest constitutional amendments did matter. That would include the Bill of Rights, for example, and the Twelfth Amendment, which fixed a problem in the way the President and Vice President were originally chosen. And several amendments have been useful housekeeping measures, like the Twenty-Fifth Amendment, which says what happens if the President is disabled. But if you really want to understand how the United States Constitution changes—in practice, not just on paper—constitutional amendments are a small part of the story. The real action—in many ways, our real Constitution—is elsewhere, in the way the courts, Congress, the President, and the people in their daily lives have brought us the Constitution we have today.
