Article V of the US Constitution: Mode of Amendment
Article V of the U.S. Constitution details how the Constitution itself may be changed. The Founders understood that time and events would highlight errors or omissions that future generations would need to address – so they provided a mechanism by which to amend the Constitution. This process was designed to be slow, deliberate, and laborious; the Founders wanted the people and the states to consider deeply and carefully the ramifications of the changes they were about to make. Here is the entirety of Article V (also appended below):
“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.”
Dense and full of information – but a modern grammarian would make hay with the run-on sentence! Let’s parse this out (no sentence diagrams, I promise).
Agreement by two thirds of both the House and Senate are required even to approach the possibility of amending the Constitution. Another possibility, if the House and Senate cannot agree to begin the amending procedure, is for the legislatures of two thirds of the states to so demand – at which time, a Convention is called for proposing amendments. We’ll come back to this dangerous option; for now let’s understand how the amending process is designed to work.
A properly ratified amendment becomes part of the Constitution, “valid to all Intents and Purposes” as though it had been there from the first ratification. In order for a proposed amendment to be properly ratified, three fourths of all the states must approve the amendment. The states have two ways to give that approval: (1) the state legislatures may vote to approve the amendment, or (2) a state convention (called and held in accordance with state rules, which may vary) may approve the amendment if the legislature will not.
The Founders here were trying to ensure there were several ways for the people and the states to address their concerns even if one or several legislative bodies refused to act in accordance with the people’s will. Congress is NOT given the only say – states can demand amendments via the method of Constitutional Convention. State legislatures cannot stonewall and refuse to act; the people of the states can call their own conventions and act directly in what they see as their own interests.
However, amending the Constitution is a serious step that should not be done quickly or lightly, nor should a bare-bones majority be able to change the laws for the entire country. Accordingly, the Founders required super-majorities – two thirds of both legislative houses (or two thirds of all states) – to PROPOSE an amendment to the states, and three quarters of all states must approve in order to ratify the new amendment and have it incorporated in the Constitution. (Let us note here, in passing, that Congress may not pass laws that circumvent portions of the Constitution. Those laws are null and void. Changing the Constitution may ONLY be done by Amendment. The Patriot Act runs roughshod over the 4th Amendment and is but one egregious example of a law that desperately needs to be nullified by the states. Until we, the People, know and understand the Constitution, the states will remain ignorant of their power to resist federal over-reach.)
The final portion of this Article prohibits any changes to Article 1, Section 9, clauses 1 & 4. These specific clauses forbid the abolition of slavery before the year 1808. Here, they assure the southern states that the time limit before action could be taken to abolish slavery would not be abrogated (to put it bluntly, that they could not be double-crossed).
Let’s now go back to the topic we left for later; the "Con-Con." During the Constitutional Convention, the original text proposed was for only the states to call for amendments. The concern in the convention was that the states would only propose amendments that increased their own power at the expense of the federal areas of jurisdiction (remember, the main flaw of the Articles of Confederation was that the federal government had insufficient power to function). Madison proposed an alternative where both houses of Congress, working together, would also be able to propose amendments. This has turned out to be the only method that has been used to date.
The alternative method of the states calling a convention leads to a large number of open questions. There is no established procedure for the states to call a Constitutional Convention – what should/would that procedure be? Must the states all be asking for the same amendment – or can each state be making a different request? Do the requests need to be at the same time, close to each other in time, or can one state after another request a convention over the course of years until, hey bingo! the magic percentage is reached? Would a convention be limited to considering the amendment(s) for which it was called – or would it then be “open season” to propose multiple NEW amendments? Could they also add in amendment proposals to overturn prior amendments? Could such a convention overturn the Constitution entirely (as actually happened with the convention to re-vamp the Articles of Confederation)? How would delegates be chosen? How many? By state or by population? There is NO LIMIT within the Constitution to the changes a Constitutional Convention could conceivably make. There are those (for example, staunch Libertarian commentator Judge Andrew Napolitano) who call openly for a Constitutional Convention to cure our current ills, while others hold deep and grave fears about the problems the lack of limitations would set in motion. (I hold that latter opinion; at least until such a day comes that the bulk of the populace once again understands and agrees with the present Constitution in its original intent. I can easily see a modern-day convention tossing out most of the Bill of Rights simply by lacking the understanding that offensive speech is the only speech that needs protection, that public expression of religion is not “establishment” of a state religion, that the militia is the whole of the people, et cetera, et cetera, et cetera.) Please see the articles specifically linked, below, on the inherent dangers of a con-con, in far greater (and better) detail than we discuss here.
As a final note on the subject of constitutional amendment procedures, starting with 18th Amendment (proposed 1917, ratified 1919) Congress started putting 7-year ratification time limits in the text of the proposed amendment. Why: the intention here (and one of the very few things Congress has ever done that actually works as intended) is to prevent “sleeper” amendments from being ratified at a much later date, when they may no longer serve the intended purpose. For example, the 27th Amendment was proposed in 1789, and was finally ratified (by the vote of Michigan’s legislature) in 1992 – 203 years later! This particular amendment still serves its intended purpose – but a number of other proposed amendments may well not have done so after so many years elapsed. This limitation has caused its own furor on occasion – for example, when the Equal Rights Amendment failed ratification within the time limit imposed.
For more information on the dangers of a "con-con" please see:
And for details on the development, over the course of the Convention, of the wording of Article V, see:
*Constitution of the United States of America
*Badnarik, Michael “Good To Be King” 2004 The Writer’s Collective
*Skousen, W. Cleon “The 5,000 Year Leap” 2006 National Center for Constitutional Studies
*Hamilton, Madison, Jay “The Federalist Papers” 2001 Dover
*Heritage Guide to the Constitution www.heritage.org
*Justia US Law law.justia.com
*Publius Huldah’s blog at http://publiushuldah.wordpress.com
©2012 by the author
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.