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Article Five of the
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
describes the process for altering the Constitution. Under Article Five, the process to alter the Constitution consists of proposing an
amendment An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. The ...
or amendments, and subsequent
ratification Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties inten ...
. Amendments may be proposed either by the
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
with a two-thirds
vote Voting is a method by which a group, such as a meeting or an electorate, can engage for the purpose of making a collective decision or expressing an opinion usually following discussions, debates or election campaigns. Democracies elect holde ...
in both the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
and the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
; or by a convention to propose amendments called by Congress at the request of two-thirds of the state legislatures. To become part of the Constitution, an amendment must then be ratified by either—as determined by Congress—the legislatures of three-quarters of the states or by ratifying conventions conducted in three-quarters of the states, a process utilized only once thus far in American history with the 1933 ratification of the Twenty-First Amendment. The vote of each state (to either ratify or reject a proposed amendment) carries equal weight, regardless of a state's population or length of time in the Union. Article Five is silent regarding deadlines for the ratification of proposed amendments, but most amendments proposed since 1917 have included a deadline for ratification. Legal scholars generally agree that the amending process of Article Five can itself be amended by the procedures laid out in Article Five, but there is some disagreement over whether Article Five is the exclusive means of amending the Constitution. In addition to defining the procedures for altering the Constitution, Article Five also
shields A shield is a piece of personal armour held in the hand, which may or may not be strapped to the wrist or forearm. Shields are used to intercept specific attacks, whether from close-ranged weaponry or projectiles such as arrows, by means of ...
three clauses in Article I from ordinary amendment by attaching stipulations. Regarding two of the clauses—one concerning importation of
slaves Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
and the other apportionment of
direct taxes Although the actual definitions vary between jurisdictions, in general, a direct tax or income tax is a tax imposed upon a person or property as distinct from a tax imposed upon a transaction, which is described as an indirect tax. There is a di ...
—the prohibition on amendment was absolute but of limited duration, expiring in 1808; the third was without an expiration date but less absolute: "no state, without its consent, shall be deprived of its equal Suffrage in the Senate." Scholars disagree as to whether this shielding clause can itself be amended by the procedures laid out in Article Five.


Text


Background


Procedures for amending the Constitution

Thirty-three amendments to the United States Constitution have been approved by the Congress and sent to the states for ratification. Twenty-seven of these amendments have been ratified and are now part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states and are not part of the Constitution. Four of these amendments are still technically open and pending, one is closed and has failed by its own terms, and one is closed and has failed by the terms of the resolution proposing it. All totaled, approximately 11,539 measures to amend the Constitution have been proposed in Congress since 1789 (through December 16, 2014).


Proposing amendments

Article V provides two methods for amending the nation's frame of government. The first method authorizes Congress, "whenever two-thirds of both houses shall deem it necessary", to propose Constitutional amendments. The second method requires Congress, "on the application of the legislatures of two-thirds of the several states" (presently 34), to "call a convention for proposing amendments". This duality in Article V is the result of compromises made during the
1787 Constitutional Convention The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention fr ...
between two groups, one maintaining that the national legislature should have no role in the constitutional amendment process, and another contending that proposals to amend the constitution should originate in the national legislature and their ratification should be decided by state legislatures or state conventions. Regarding the consensus amendment process crafted during the convention,
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for h ...
(writing in The
Federalist No. 43 Federalist No. 43 is an essay by James Madison, the forty-third of ''The Federalist Papers''. It was published on January 23, 1788, under the pseudonym Publius, the name under which all ''The Federalist'' papers were published. This paper conti ...
) declared: Each time the Article V process has been initiated since 1789, the first method for crafting and proposing amendments has been used. All 33 amendments submitted to the states for ratification originated in Congress. The second method, the convention option, a political tool which
Alexander Hamilton Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Father who served as the first United States secretary of the treasury from 1789 to 1795. Born out of wedlock in Charle ...
(writing in The
Federalist No. 85 Federalist No. 85 is an essay by Alexander Hamilton, the eighty-fifth and last of '' The Federalist Papers''. It was published on August 13 and 16, 1788 under the pseudonym Publius, the name under which all ''The Federalist'' papers were publ ...
) argued would enable state legislatures to "erect barriers against the encroachments of the national authority", has yet to be invoked. When the 1st Congress considered a series of
constitutional amendments A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, t ...
, it was suggested that the two houses first adopt a resolution indicating that they deemed amendments necessary. This procedure was not used. Instead, both the House and the Senate proceeded directly to consideration of a
joint resolution In the United States Congress, a joint resolution is a legislative measure that requires passage by the Senate and the House of Representatives and is presented to the President for their approval or disapproval. Generally, there is no legal diff ...
, thereby implying that both bodies deemed amendments to be necessary. Also, when initially proposed by
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for h ...
, the amendments were designed to be interwoven into the relevant sections of the original document. Instead, they were approved by Congress and sent to the states for ratification as supplemental additions (
codicil Codicil may refer to: * Codicil (will), subsequent change or modification of terms made and appended to an existing trust or will and testament * A modification of terms made and appended to an existing constitution, treaty, or standard form con ...
s) appended to it. Both these
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
s have been followed ever since. Once approved by Congress, the joint resolution proposing a constitutional amendment does not require presidential approval before it goes out to the states. While Article I Section 7 provides that all federal legislation must, before becoming Law, be presented to the president for his or her
signature A signature (; from la, signare, "to sign") is a Handwriting, handwritten (and often Stylization, stylized) depiction of someone's name, nickname, or even a simple "X" or other mark that a person writes on documents as a proof of identity and ...
or
veto A veto is a legal power to unilaterally stop an official action. In the most typical case, a president or monarch vetoes a bill to stop it from becoming law. In many countries, veto powers are established in the country's constitution. Veto ...
, Article V provides no such requirement for constitutional amendments approved by Congress, or by a federal convention. Thus the president has no official function in the process. In '' Hollingsworth v. Virginia'' (1798), the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
affirmed that it is not necessary to place constitutional amendments before the president for approval or veto. Three times in the 20th century, concerted efforts were undertaken by proponents of particular amendments to secure the number of applications necessary to summon an Article V Convention. These included conventions to consider amendments to (1) provide for the popular election of U.S. Senators; (2) permit the states to include factors other than equality of population in drawing state legislative
district A district is a type of administrative division that, in some countries, is managed by the local government. Across the world, areas known as "districts" vary greatly in size, spanning regions or counties, several municipalities, subdivision ...
boundaries; and (3) to propose an
amendment An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. The ...
requiring the U.S. budget to be balanced under most circumstances. The campaign for a popularly elected Senate is frequently credited with "prodding" the Senate to join the House of Representatives in proposing what became the Seventeenth Amendment to the states in 1912, while the latter two campaigns came very close to meeting the two-thirds threshold in the 1960s and 1980s, respectively.


Ratification of amendments

After being officially proposed, either by Congress or a national convention of the states, a constitutional amendment must then be ratified by three-fourths (38 out of 50) of the states. Congress is authorized to choose whether a proposed amendment is sent to the state legislatures or to state ratifying conventions for ratification. Amendments ratified by the states under either procedure are indistinguishable and have equal validity as part of the Constitution. Of the 33 amendments submitted to the states for ratification, the state convention method has been used for only one, the Twenty-first Amendment. In '' United States v. Sprague'' (1931), the Supreme Court affirmed the authority of Congress to decide which mode of ratification will be used for each individual constitutional amendment. The Court had earlier, in ''
Hawke v. Smith ''Hawke v. Smith'', 253 U.S. 221 (1920), was a United States Supreme Court case coming out of the state of Ohio. It challenged the constitutionality of a provision in the state constitution allowing the state legislature's ratification of federal c ...
'' (1920), upheld the
Ohio General Assembly The Ohio General Assembly is the state legislature of the U.S. state of Ohio. It consists of the 99-member Ohio House of Representatives and the 33-member Ohio Senate. Both houses of the General Assembly meet at the Ohio Statehouse in Columbus ...
's ratification of the Eighteenth Amendment—which Congress had sent to the state legislatures for ratification—after Ohio voters successfully vetoed that approval through a popular referendum, ruling that a provision in the
Ohio Constitution The Constitution of the State of Ohio is the basic governing document of the State of Ohio, which in 1803 became the 17th state to join the United States of America. Ohio has had three constitutions since statehood was granted. Ohio was crea ...
reserving to the state's voters the right to challenge and overturn its legislature's ratification of federal constitutional amendments was unconstitutional. An amendment becomes an operative part of the Constitution when it is ratified by the necessary number of states, rather than on the later date when its ratification is certified. No further action by Congress or anyone is required. On three occasions, Congress has, after being informed that an amendment has reached the ratification threshold, adopted a resolution declaring the process successfully completed. Such actions, while perhaps important for political reasons, are, constitutionally speaking, unnecessary. Presently, the
Archivist of the United States The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA) of the United States. The Archivist is responsible for the supervision and direction of the National Archives. Th ...
is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code . The Archivist officially notifies the states, by a registered letter to each state's
Governor A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
, that an amendment has been proposed. Each Governor then formally submits the amendment to their state's legislature (or ratifying convention). When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. Upon receiving the necessary number of state ratifications, it is the duty of the Archivist to issue a certificate proclaiming a particular amendment duly ratified and part of the Constitution. The amendment and its certificate of ratification are then published in the ''
Federal Register The ''Federal Register'' (FR or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every weekday, except on fede ...
'' and ''
United States Statutes at Large The ''United States Statutes at Large'', commonly referred to as the ''Statutes at Large'' and abbreviated Stat., are an official record of Acts of Congress and concurrent resolutions passed by the United States Congress. Each act and resolut ...
''. This serves as official notice to Congress and to the nation that the ratification process has been successfully completed.


Ratification deadline and extension

The Constitution is silent on the issue of whether or not Congress may limit the length of time that the states have to ratify constitutional amendments sent for their consideration. It is also silent on the issue of whether or not Congress, once it has sent an amendment that includes a ratification deadline to the states for their consideration, can extend that deadline.


Deadlines

The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states. The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified. In ''
Dillon v. Gloss ''Dillon v. Gloss'', 256 U.S. 368 (1921), was a case in which the Supreme Court of the United States held that Congress, when proposing a constitutional amendment under the authority given to it by Article V of the Constitution, may fix a definit ...
'' (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest ve argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times. The court subsequently, in ''
Coleman v. Miller ''Coleman v. Miller'', 307 U.S. 433 (1939), is a landmark decision of the United States Supreme Court which clarified that if the Congress of the United States—when proposing for ratification an amendment to the United States Constitution, p ...
'' (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment. Based upon this precedent, the Archivist of the United States proclaimed the Twenty-seventh Amendment as having been ratified when it surpassed the "three fourths of the several states" plateau for becoming a part of the Constitution. Declared ratified on May 7, 1992, it had been submitted to the states for ratification—without a ratification deadline—on September 25, 1789, an unprecedented time period of .


Extensions

Whether once it has prescribed a ratification period Congress may extend the period without necessitating action by already-ratified States embroiled Congress, the states, and the courts in argument with respect to the proposed Equal Rights Amendment (Sent to the states on March 22, 1972, with a seven-year ratification time limit attached). In 1978 Congress, by simple
majority A majority, also called a simple majority or absolute majority to distinguish it from related terms, is more than half of the total.Dictionary definitions of ''majority'' aMerriam-WebsterUnited States District Court for the District of Idaho United may refer to: Places * United, Pennsylvania, an unincorporated community * United, West Virginia, an unincorporated community Arts and entertainment Films * ''United'' (2003 film), a Norwegian film * ''United'' (2011 film), a BBC Two f ...
, however, found that Congress did not have the authority to extend the deadline, even when only contained within the proposing joint resolution's resolving clause. The Supreme Court had decided to take up the case, bypassing the Court of Appeals, but before they could hear the case, the extended period granted by Congress had been exhausted without the necessary number of states, thus rendering the case
moot Moot may refer to: * Mootness, in American law: a point where further proceedings have lost practical significance; whereas in British law: the issue remains debatable * Moot court, an activity in many law schools where participants take part in s ...
.


Constitutional clauses shielded from amendment

Article V also contains two statements that shield the subject matter of certain constitutional clauses from being amended. The first of the two is obsolete due to an attached
sunset provision In public policy, a sunset provision or sunset clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law ...
. Absolutely not amendable until 1808 were Article I, Section 9, Clause 1, which prevented Congress from passing any law that would restrict the importation of
slaves Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
prior to 1808, and Article I, Section 9, Clause 4, a declaration that
direct taxes Although the actual definitions vary between jurisdictions, in general, a direct tax or income tax is a tax imposed upon a person or property as distinct from a tax imposed upon a transaction, which is described as an indirect tax. There is a di ...
must be apportioned according to state populations, as described in Article I, Section 2, Clause 3. The second prohibition was not given an expiration date and remains in effect. It expressly provides that no amendment shall deprive a state of its equal
suffrage Suffrage, political franchise, or simply franchise, is the right to vote in public, political elections and referendums (although the term is sometimes used for any right to vote). In some languages, and occasionally in English, the right to v ...
(representation) in the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, as described in Article I, Section 3, Clause 1, without that state's consent. Designed to seal two compromises reached between delegates to the Constitutional Convention after contentious debates, these are the only explicitly entrenched provisions of the Constitution. The guarantee of equal suffrage in the Senate is arguably subject to being amended through the procedures outlined within the Article. Law professor George Mader holds that the shielding provision can be amended because it is not "self-entrenched," meaning that it does not contain a provision preventing its own amendment. Thus, under Mader's argument, a two-step amendment process could repeal the provision that prevents the equal suffrage provision from being amended, and then repeal the equal suffrage provision itself. Mader contrasts the provision preventing the modification of the equal suffrage clause with the unratified Corwin Amendment, which contains a self-entrenching, unamendable provision. Law professor Richard Albert also holds that the equal suffrage provision could be amended through a "double amendment" process, contrasting the U.S. Constitution with other constitutions that explicitly protect certain provisions from ever being amended and are themselves protected from being amended. Another legal scholar,
Akhil Amar Akhil Reed Amar (born September 6, 1958) is an American legal scholar known for his expertise in constitutional law and criminal procedure. He holds the position of Sterling Professor of Law and Political Science at Yale University, and is an ad ...
, argues that the equal suffrage provision could be amended through a two-step process, but describes that process as a "sly scheme."


Exclusive means for amending the Constitution

According to constitutional theorist and scholar Lawrence G. Sager, some commentators have seriously questioned whether Article V is the exclusive means of amending the Constitution, or whether there are routes to amendment, including some routes in which the Constitution could be unconsciously or unwittingly amended in a period of sustained political activity on the part of a mobilized national constituency. For example,
Akhil Amar Akhil Reed Amar (born September 6, 1958) is an American legal scholar known for his expertise in constitutional law and criminal procedure. He holds the position of Sterling Professor of Law and Political Science at Yale University, and is an ad ...
rejects the notion that Article V excludes other modes of constitutional change, arguing instead that the procedure provided for in Article V is simply the exclusive method the government may use to amend the Constitution. He asserts that Article V nowhere prevents the People themselves, acting apart from ordinary Government, from exercising their legal right to alter or abolish Government via the proper legal procedures. Other scholars disagree. Some argue that the Constitution itself provides no mechanism for the American people to adopt constitutional amendments independently of Article V. Darren Patrick Guerra has argued that Article V is a vital part of the American Constitutional tradition and he defends Article V against modern critiques that Article V is either too difficult, too undemocratic, or too formal. Instead he argues that Article V provides a clear and stable way of amending the document that is explicit, authentic, and the exclusive means of amendment; it promotes wisdom and justice through enhancing deliberation and prudence; and its process complements federalism and separation of powers that are key features of the Constitution. He argues that Article V remains the most clear and powerful way to register the sovereign desires of the American public with regard to alterations of their fundamental law. In the end, Article V is an essential bulwark to maintaining a written Constitution that secures the rights of the people against both elites and themselves. The view that the Article V amendment process is the only legitimate vehicle for bringing about constitutional change, is, as pointed out by constitutional law scholar Joel K. Goldstein, "challenged by numerous widely-accepted judicial decisions that have introduced new meaning into constitutional language by departing from original intentions, expectations, or meaning." He also points out how constitutional institutions have, independent of both judicial activity and alterations effected though the Article V process, evolved "to take forms inconsistent with what the Founders imagined or the language they wrote suggested." In his farewell address, President
George Washington George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of ...
said:
If in the opinion of the People the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.
This statement by Washington has become controversial, and scholars disagree about whether it still describes the proper constitutional order in the United States. Scholars who dismiss Washington's position often argue that the Constitution itself was adopted without following the procedures in the
Articles of Confederation The Articles of Confederation and Perpetual Union was an agreement among the 13 Colonies of the United States of America that served as its first frame of government. It was approved after much debate (between July 1776 and November 1777) by ...
, while Constitutional attorney Michael Farris disagrees, saying the convention was a product of the States'
residual power Reserved powers, residual powers, or residuary powers are the powers that are neither prohibited nor explicitly given by law to any organ of government. Such powers, as well as general power of competence, are given because it is impractical to d ...
, and the amendment in adoption process was legal, having received the unanimous assent of the States' legislatures.


Amending Article V

Article V lays out the procedures for amending the Constitution, but it does not explicitly state whether those procedures apply to Article V itself. According to law professor George Mader, there have been numerous proposals to amend the Constitution's amending procedures, and "it is generally accepted that constitutional amending provisions can be used to amend themselves." Even so, Article V has never been amended.


See also

* Gödel's Loophole *
List of amendments to the United States Constitution Thirty-three amendments to the United States Constitution have been proposed by the United States Congress and sent to the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of these, having bee ...
*
List of proposed amendments to the United States Constitution Hundreds of proposed amendments to the United States Constitution are introduced during each session of the United States Congress. From 1789 through January 3, 2019, approximately 11,770 measures have been proposed to amend the United States ...
*
List of state applications for an Article V Convention This is a list of known applications made to the United States Congress by the state legislatures for a Convention to propose amendments to the United States Constitution under Article V of the Constitution which provides in pertinent part: A ...
* List of Rescissions of Article V Convention Applications


Notes


References


External links


U.S. Government Printing Office (2013) ''The Constitution of the United States of America: Analysis and Interpretation''
{{US Constitution 5 Federalism in the United States