2.3: Amending the Constitution

Article V of the Constitution spells out the processes by which constitutional amendments can be proposed and ratified. As seen below, this is a two-step process. It begins with the proposal of a change to the Constitution and concludes with the ratification process. There are two ways in which Constitutional amendments may be proposed and another two ways by which amendments may be ratified. Each of these will be discussed in this section. Video: Article V For Dummies: The Amendment Procedure Explained

To Propose Amendments

In the U.S. Congress, both the House of Representatives and the Senate must approve (by a two-thirds supermajority vote) a joint resolution amending the Constitution. Amendments so approved do not require the signature of the president of the United States and are sent directly to the states for ratification. OR Two-thirds of the state legislatures must ask Congress to call a national convention to propose amendments. However, to date, this method has never been used. To Ratify Amendments Three-fourths of the state legislatures must approve it. OR Ratifying conventions in three-fourths of the states must approve it. This method has been used only once -- to ratify the 21st Amendment, which repealed Prohibition. The Supreme Court has stated that ratification must be within "some reasonable time after the proposal." Beginning with the 18th amendment, it has been customary for Congress to set a definite period for ratification. In the case of the 18 th , 20 th , 21 st , and 22 nd amendments, the period set was seven years, but there has been no determination as to just how long a "reasonable time" might extend. One interesting example of this is the 27 th Amendment, which was actually proposed as a part of the Bill of Rights in 1789. This amendment, limiting the power of Congress to give itself a raise without standing for reelection first, was still awaiting ratification in 1992, a record-setting period of 202 years, 6 months and 12 days after it was sent to the states for ratification. It was finally ratified on May 7, 1992. Of the thousands of proposals that have been made to amend the Constitution, only 33 obtained the necessary two-thirds vote in Congress. Of those 33, only 27 amendments (including the Bill of Rights) have been ratified.

The First Ten (Eleven?) Amendments

When the First Congress convened in 1789, one of its foremost promised orders of business was to consider a series of amendments to the Constitution. These were intended to become part of a "Bill of Rights." Remember that to secure the support of the Anti-Federalists in the fight for ratification, the Federalists promised to add a Bill of Rights to the Constitution after it was in effect. However, once the First Congress was in session, most of its members were more interested in getting down to the "business of government" than they were in considering amendments to the Constitution. Indeed, if not for James Madison's persistence, repeatedly rising on the House floor to urge the House to consider the promised Constitutional amendments, it is unlikely that the First Congress would have considered them at all. The reluctance to consider amendments to the Constitution was probably, at least in part, due to the fact that dozens of amendments had been proposed in the various state ratifying conventions. By considering any amendments, members of Congress were probably afraid that nothing else would be accomplished until all of the proposed amendments were considered and voted upon. Madison, however, studied all of the proposed amendments, discarded the ones he found distasteful, consolidated similar amendments, and trimmed the list down to just ten. By a two-thirds majority in each house, the Congress formally proposed Madison's ten amendments along with two others. They were then sent to the states for ratification. The result was that ten of the proposed amendments were ratified and, thereby, became part of the Constitution. The first ten amendments are often referred to as the Bill of Rights. Beginning with the 18 th Amendment, Congress established a seven-year time limit on the ratification of amendments; however, there was no time limit set on the ratification of amendments proposed before that time. One of the original 12 proposed amendments was not ratified until 1992, a full 203 years after it was proposed by the First Congress! Upon ratification, it became the 27th Amendment to the Constitution. This amendment prohibited any law that increases or decreases the salary of members of Congress from taking effect until the start of the next set of terms of office for Representatives.

The Bill of Rights

Categorizing the Amendments

The 27 amendments to the Constitution can roughly be sorted into six broad categories. The first ten amendments are collectively known as the Bill of Rights. For the purposes of this categorization, the 27 th Amendment can be included with the first ten because it was proposed by Madison at the same time as the first ten amendments. It is also appropriate to include it with the first ten because it was intended to provide the people protection from unscrupulous elected officials who might abuse their offices for financial gain. A second set of amendments has specifically addressed the scope of the national government's authority. The 11th Amendment was proposed and ratified in response to a Supreme Court decision regarding sovereign immunity. The 16 th Amendment authorized the national government to directly tax the incomes of individuals. The 13 th , 14 th , and 15 th Amendments were proposed and ratified shortly after the Civil War and were aimed at extending civil rights and liberties to former slaves. Another five amendments, the 12 th , 17 th , 20 th , 22 nd , and 25 th Amendments have made changes in terms or methods of electing Presidents, Vice-Presidents, and Senators. Four amendments: the 19 th , 23 rd , 24 th, and 26 th (the 15 th can also be included in this category) expanded the number of persons eligible to vote in national elections. The 18 th Amendment prohibited the consumption of alcohol, and the 21 st Amendment canceled the former out.

The Additional Amendments (11-27)

Why Haven't There Been More Amendments?

Credit for the absence of more amendments can be given to the ingenuity of the Framers and to the flexibility they built into the document. As it has been noted, in many instances the Constitution was left intentionally vague, leaving particular aspects of the document for future generations to interpret.

Constitutional Amendments Proposed and Approved by Congress but NOT Ratified

Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states. Four of these, including one of the twelve Bill of Rights amendments, are still technically open and pending. The other two amendments are closed and no longer pending. One dismissed by terms set within the Congressional Resolution proposing it (†) and the other by terms set within the body of the amendment (‡).

Congressional Apportionment Amendment (pending since September 25, 1789; ratified by 11 states)

Would strictly regulate the size of congressional districts for representation in the House of Representatives.

Title of Nobility Amendment (pending since May 1, 1810; ratified by 12 states)

Would strip citizenship from any United States citizen who accepts a title of nobility from a foreign country.

Corwin Amendment (pending since March 2, 1861; ratified by 3 states)

Would make "domestic institutions" (which in 1861 implicitly meant slavery) of the states impervious to the constitutional amendment procedures enshrined within Article Five of the United States Constitution and immune to abolition or interference even by the most compelling Congressional and popular majorities.

Child Labor Amendment (pending since June 2, 1924; ratified by 28 states)

Equal Rights Amendment (ratification period March 22, 1972 to March 22, 1979/June 30, 1982; the amendment failed; ratified by 35 states)

Would prohibit deprivation of equality of rights (discrimination) by the federal or state governments on account of sex.

District of Columbia Voting Rights Amendment (ratification period August 22, 1978 to August 22, 1985; the amendment failed; ratified by 16 states)

Would grant the District of Columbia full representation in the United States Congress as if it were a state, repealed the 23rd Amendment and granted the District full representation in the Electoral College system in addition to full participation in the process by which the Constitution is amended.

List of Failed Amendment Proposals NOT Approved by Congress

Approximately 11,539 measures have been proposed to amend the Constitution from 1789 through January 2, 2013. The following amendments, while introduced by a member of Congress, either died in committee or did not receive a two-thirds vote in both houses of Congress and were, therefore, they were not sent to the states for ratification.

Nineteenth Century:

More than 1,300 resolutions containing over 1,800 proposals to amend the Constitution had been submitted before Congress during the first century of its adoption. Some prominent proposals included:

Blaine Amendment

Proposed in 1875, it would have banned public funds from going to religious purposes in order to prevent Catholics from taking advantage of such funds. Though it failed to pass, many states adopted such provisions. Christian Amendment Proposed first in February 1863, it would have added acknowledgment of the Christian God in the Preamble to the Constitution. Similar amendments were proposed in 1874, 1896 and 1910 with none passing. The last attempt in 1954 did not come to a vote. The Crittenden Compromise It was a joint resolution that included six constitutional amendments aimed at protecting slavery. Both the House of Representatives and the Senate rejected it in 1861. Abraham Lincoln was elected on a platform that opposed the expansion of slavery. The South's reaction to the rejection paved the way for the secession of the Confederate states and the American Civil War.

Twentieth-Century:

Anti-Miscegenation Amendment

This was proposed in 1912 by Representative Seaborn Roddenbery, a Democrat from Georgia, to forbid interracial marriage nationwide. Similar amendments were proposed in 1871 by Congressman Andrew King, a Missourian Democrat, and in 1928 by Senator Coleman Blease, a South Carolinian Democrat. None were passed by Congress.

Anti-Polygamy Amendment

This was proposed by Representative Frederick Gillett, a Massachusetts Republican, on January 24, 1914. It was supported by former U.S. Senator from Utah and anti-Mormon activist Frank J. Cannon, and by the National Reform Association. Bricker Amendment A proposal from 1951 by Ohio Senator John W. Bricker. It intended to limit the federal government's treaty-making power. Opposed by President Dwight Eisenhower, it failed twice to reach the threshold of two-thirds of voting members necessary for passage--the first time by eight votes, and the second time by a single vote. Death Penalty Abolition Amendment A proposal presented in 1990, 1992, 1993, and 1995 by Representative Henry González to prohibit the imposition of capital punishment "by any State, Territory, or other jurisdiction within the United States." The amendment was referred to the House Subcommittee on the Constitution but never made it out of committee. Flag Desecration Amendment It was first proposed in 1968 to give Congress the power to make acts such as flag burning illegal. During each term of Congress from 1995 through 2005, the proposed amendment was passed by the House of Representatives but never by the Senate. The closest it came was during voting on June 27, 2006, with 66 in support and 34 opposed. This was one vote short. Human Life Amendment First proposed in 1973, it would overturn the Roe v. Wade court ruling. A total of 330 proposals using varying texts have been proposed with almost all dying in committee. The only version that reached a formal floor vote, the Hatch-Eagleton Amendment, was rejected by 18 votes in the Senate on June 28, 1983. Ludlow Amendment This was proposed by Representative Louis Ludlow in 1937. This amendment would have heavily reduced America's ability to be involved in a war.

Twenty-first Century:

A Balanced Budget Amendment: A proposal would force Congress and the President to balance the budget every year (can’t spend more money than collected from revenue). This amendment has been introduced many times.

School Prayer Amendment:

Proposed on April 9, 2003, to establish that "The people retain the right to pray and to recognize their religious beliefs, heritage, and traditions on public property, including schools." "God" in the Pledge of Allegiance: Declaring that it is not an establishment of religion for teachers to lead students in reciting the Pledge of Allegiance (with the words "one Nation under God"), proposed on February 27, 2003, by Oklahoma Representative Frank Lucas. Every Vote Counts Amendment: Proposed by Congressman Gene Green on September 14, 2004. It would abolish the Electoral College. Continuity of Government Amendment: After a Senate hearing in 2004 regarding the need for an amendment to ensure continuity of government in the event that many members of Congress become incapacitated, Senator John Cornyn introduced an amendment to allow Congress to temporarily replace members after at least a quarter of either chamber is incapacitated. Equal Opportunity to Govern Amendment: Proposed by Senator Orrin Hatch. It would allow naturalized citizens with at least 20 years of citizenship to become president. Seventeenth Amendment Repeal: Proposed in 2004 by Georgia Senator Zell Miller. It would reinstate the appointment of Senators by state legislatures as originally required by Article One, Section Three, Clauses One and Three. The Federal Marriage Amendment: Introduced in the United States Congress four times: in 2003, 2004, 2005/2006 and 2008 by multiple members of Congress (with support from then-President George W. Bush). It would define marriage and prohibit same-sex marriage, even at the state level. Twenty-second Amendment Repeal: Proposed as early as 1989, various congressmen, including Rep. Barney Frank, Rep. Steny Hoyer, Rep. José Serrano, Rep. Howard Berman, and Sen. Harry Reid, have introduced legislation, but each resolution died before making it out of its respective committee. The current amendment limits the president to two elected terms in office and up to two years succeeding a President in office. The last action was on January 4, 2013, Rep. José Serrano once again introduced H.J. Res. 15 proposing an Amendment to repeal the 22nd Amendment, as he has done every two years since 1997. Proposed “Anchor Baby” Change to 14 th Amendment: On January 16, 2009, Senator David Vitter of Louisiana proposed an amendment which would deny U.S. citizenship to anyone born in the U.S. unless at least one parent was a U.S. citizen, a permanent resident, or in the armed forces. Murkowski Amendment: On February 25, 2009, Senator Lisa Murkowski, because she believed the District of Columbia House Voting Rights Act of 2009 would be unconstitutional if adopted, proposed a Constitutional amendment that would provide a representative to the District of Columbia. Term Limits for U.S. Senators: On November 11, 2009, Senator Jim DeMint proposed term limits for the U.S. Congress, where the limit for senators will be two terms for a total of 12 years and for representatives, three terms for a total of six years. People’s Rights Amendment: On November 15, 2011, Representative James P. McGovern introduced the People's Rights Amendment, a proposal to limit the Constitution's protections only to the rights of natural persons, and not corporations. This amendment would overturn the United States Supreme Court decision in Citizens United v. Federal Election Commission. Saving American Democracy Amendment: On December 8, 2011, Senator Bernie Sanders filed The Saving American Democracy Amendment. It stated that corporations are not entitled to the same constitutional rights as people. It would also ban corporate campaign donations to candidates. Additionally, it would give Congress and the states broad authority to regulate spending in elections. This amendment would overturn the United States Supreme Court decision in Citizens United v. Federal Election Commission. Right to Vote Amendment: Rep. Jesse Jackson, Jr. backed the Right to Vote Amendment, a proposal to explicitly guarantee the right to vote for all legal U.S. citizens and empower Congress to protect this right; he introduced a resolution for the amendment in the 107 th ,108 th ,109 th ,110 th , 111 th , and 112 th , all of which died in committee. On May 13, 2013, Reps. Mark Pocan and Keith Ellison re-introduced the bill.

Informal Amendments

Unlike formal amendments which change the written word of the U.S. Constitution, informal amendments are changes not affecting the written document but affecting the way the Constitution is interpreted. There are many ways informal amendments can occur but all are affected by two overall political processes: (1) Societal Change: Sometimes society changes, leading to shifts in how constitutional rights are applied. For example, originally only land-holding white males could vote in federal elections. Due to a burgeoning middle class at the peak of the Industrial Revolution in the 1800s, society became focused on expanding rights for the middle and working classes. This led to the right to vote being extended to more and more people. However, formal recognition of the right of poor whites and black males, and later of women, was only fully secured in the Fifteenth Amendment (1870) and the Nineteenth Amendment (1920). (2) Judicial Review: In the United States, federal and state courts at all levels, both appellate and trial, are able to review and declare the constitutionality of legislation relevant to any case properly within their jurisdiction. This means that they evaluate whether a law is or is not in agreement with the Constitution and its intent. In American legal language, "judicial review" refers primarily to the adjudication of the constitutionality of statutes, especially by the Supreme Court of the United States. This is commonly believed to have been established by Chief Justice John Marshall in the case of Marbury vs. Madison, which was argued before the Supreme Court in 1803. A number of other countries whose constitutions provide for such a review of constitutional compatibility of primary legislation have established special constitutional courts with authority to deal with this issue. In these systems, no other courts are competent to question the constitutionality of primary legislation.

Methods of Informal Constitutional Amendment

• Congress can pass laws that spell out some of the Constitution's brief provisions.
• Congress can pass laws defining and interpreting the meaning of constitutional provisions. Congressional legislation is an example of the informal process of amending the U.S. Constitution.
• Two ways in which Congress may informally amend the Constitution is by enacting laws that expand the brief provisions of the Constitution and by enacting laws that further define expressed powers.
• Examples include expanding voting rights, seats in the House, and a minimum wage.

Presidential Action:

• Presidents have used their powers to delineate unclear constitutional provisions. For example, making a difference between Congress's power to declare war and the president's power to wage war.
• Presidents have extended their authority over foreign policy by making informal executive agreements with representatives of foreign governments. This allowed them to avoid the constitutional requirement for the Senate to approve formal treaties. Executive agreements are pacts made by a president with heads of a foreign government.
• Examples include the Vietnam War and NAFTA.

Supreme Court Decisions:

• The nation's courts interpret and apply the Constitution as they see fit, as in Marbury v.Madison, a court case involving the process of informal amendment.
• The Supreme Court has been called "a constitutional convention in continuous session."
• Examples include Brown v. Board of Education and Roe v. Wade.