The Amendment Process
The concept that changing times and circumstances would require new and unique measures was one well recognized by the founders of our nation. It was the same with the delegates who gathered in Philadelphia to draft a charter for the United States. While taking great pains to create a comprehensive and thoughtful document, most realized that additional modifications would be needed in future years to meet the nation's changing needs.
The result of that belief is Article V of the U.S. Constitution, which outlines the process whereby the document itself may be amended. In our 200 years under the Constitution, some 26 amendments have been added to the text of the original document, while several others have been proposed but failed to meet the necessary qualifications.
In short, Amendment V provides two different methods of amending the Constitution. In the first, two-thirds of both Houses of Congress may propose an amendment. The second method involves the calling of a national constitutional convention by Congress upon a vote of the legislatures of two-thirds of the states. In either of these scenarios, the Constitution provides that the proposed amendment or amendments resulting from these actions must be ratified by three-fourths of the state legislatures or state conventions specifically called for that purpose.
Of these two methods, only the first has ever been used. Congress has, over the course of the last two centuries, been the sole source of constitutional amendments. Of the 26 amendments enacted as part of the U.S. Constitution, 25 have been ratified by state legislatures. The exception -- the Twenty-First Amendment, which repealed national prohibition -- was ratified by state conventions.
While it has generally been believed that a public demand for amendments will spur Congress to act accordingly, the calls for a constitutional convention have persisted over the years. Such sentiments have spurred a great deal of debate throughout our brief history as a nation. James Madison himself, the "Father of the Constitution," felt that " . . . The prospect of a second convention would be viewed by all Europe as a dark and threatening Cloud hanging over the Constitution."
Madison's concerns have been echoed in recent years. Many Americans fear that the calling of a constitutional convention to consider a specific proposal -- for example, an amendment requiring a balanced federal budget -- would open the door for wholesale changes in the Constitution. Such a gathering would be further complicated by the fact that there are no provisions, in the Constitution or elsewhere, for the selection of delegates to a convention.
The Constitution itself places only two limitations on the amendment process. Article V contains a now-obsolete clause prohibiting, prior to 1808, any amendment involving abolition of the slave trade or changing the method of levying a direct tax. The second limitation provides that no state may be deprived of its right to equal representation in the U.S. Senate by means of any amendment, unless the state agrees to such an action.
Indeed, the amending process has long been a battleground for those wishing to impose limitations upon the power of the national government. It began while Article V was being discussed before the Philadelphia convention, when a motion to insert a provision that "no State shall without its consent be affected in its internal policy" was rejected. A further attempt to impose a substantive limitation on the amending power came in 1861, when Congress submitted to the states a proposal to bar any future amendments authorizing Congress to "interfere, within any State, with the domestic institutions thereof." This proposal, obviously directed at the issue of slavery, was ratified by three states before the outbreak of the Civil War rendered the question academic.
Many years later, the validity of both the Eighteenth and Nineteenth Amendments were challenged because of their content. Opponents of the Eighteenth Amendment argued that the power of amendment is limited only to the correction of errors in the Constitution itself and does not allow for the adoption of additional or supplementary provisions. In addition, they contended that ordinary legislation cannot be embodied in a constitutional amendment, and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a state.
The Nineteenth Amendment was attacked on the narrower ground that a state which had not ratified the amendment would be deprived of its equal suffrage in the Senate. They argued that the state's representatives in the Senate would be chosen by a body -- the state's voters -- whom the state had not authorized to vote for Senators.
The U.S. Supreme Court eventually held both amendments to be valid, brushing aside the arguments of opponents as unworthy of serious consideration.
When, during the very first session of Congress, Madison submitted the proposals from which the Bill of Rights eventually evolved, he contemplated that they should be incorporated into the text of the original document. Instead, the House decided to propose them as supplementary, ignoring a suggestion that the two Houses of Congress should first resolve that amendments are necessary before considering specific proposals.
However, in the National Prohibition Cases (1920), the U.S. Supreme Court ruled that in proposing an amendment, the two Houses of Congress thereby indicated that they deemed it necessary. That same case also established that the vote required to propose an amendment in Congress was a vote of two-thirds of the members present -- assuming the presence of a quorum -- and not a vote of two-thirds of the entire membership present and absent.
In proposing an amendment, Congress may set a reasonable time limit for its ratification by the states. That principle was suggested in the 1921 case of Dillon v. Gloss, when the Court indicated that proposals which were clearly out of date were no longer open for ratification.
Nevertheless, in 1939, the Court in Coleman v. Miller refused to deal with the question of whether the proposed child labor amendment, submitted to the states in 1924, was open to ratification 13 years later. It held this to be a political question which would have to be resolved by Congress in the event three-fourths of the states ever gave their assent to the proposal.
Congress has, on some occasions, included in the text of proposed amendments a section stating that the article would be inoperative unless ratified within seven years from the time of its submission to the states. This procedure was followed with respect to the Eighteenth, Twentieth, Twenty-First and Twenty-Second Amendments. The case of Dillon v. Gloss established that such a limitation was proper because it gave effect to the implication of Article V that ratification "must be within some reasonable time after the proposal."
Later amendments, while not specifically stating a time limitation for ratification, have generally been considered to follow the same seven-year deadline. Fortunately, there has yet to be a situation where an amendment has received the endorsement of three-quarters of the states after the expiration of this time limit. Such a scenario would undoubtedly result in another important court interpretation of this valuable part of the U.S. Constitution.