Constitutional Amendments
The Amendment Process
There are essentially two ways spelled out in the Constitution for how to propose an amendment.
One has never been used.
The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each.
Once the bill has passed both houses, it goes on to the states. This is the route taken by all current
amendments. Because of some long outstanding amendments, such as the 27th, Congress will
normally put a time limit (typically seven years) for the bill to be approved as an amendment (for
example, see the 21st and 22nd).
The second method prescribed is for a Constitutional Convention to be called by two-thirds of the
legislatures of the States, and for that Convention to propose one or more amendments. These
amendments are then sent to the states to be approved by three-fourths of the legislatures or
conventions. This route has never been taken, and there is discussion in political science circles
about just how such a convention would be convened, and what kind of changes it would bring
about.
Regardless of which of the two proposal routes is taken, the amendment must be ratified, or
approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment
may specify whether the bill must be passed by the state legislatures or by a state convention. See
the Ratification Convention Page for a discussion of the make up of a convention. Amendments are
sent to the legislatures of the states by default. Only one amendment, the 21st, specified a
convention. In any case, passage by the legislature or convention is by simple majority.
The Constitution, then, spells out four paths for an amendment:
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Proposal by convention of states, ratification by state conventions (never used)
Proposal by convention of states, ratification by state legislatures (never used)
Proposal by Congress, ratification by state conventions (used once)
Proposal by Congress, ratification by state legislatures (used all other times)
It is interesting to note that at no point does the President have a role in the formal amendment
process (though he would be free to make his opinion known). He cannot veto an amendment
proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme
Court in Hollingsworth v Virginia (3 USC 378 [1798]):
The negative of the President applies only to the ordinary cases of legislation: He has
nothing to do with the proposition, or adoption, of amendments to the Constitution.
"Informal Amendment"
Another way the Constitution's meaning is changed is often referred to as "informal amendment."
This phrase is a misnomer, because there is no way to informally amend the Constitution, only the
formal way. However, the meaning of the Constitution, or the interpretation, can change over time.
There are two main ways that the interpretation of the Constitution changes, and hence its meaning.
The first is simply that circumstances can change. One prime example is the extension of the vote.
In the times of the Constitutional Convention, the vote was often granted only to monied land
holders. Over time, this changed and the vote was extended to more and more groups. Finally, the
vote was extended to all males, then all persons 21 and older, and then to all persons 18 and older.
The informal status quo became law, a part of the Constitution, because that was the direction the
culture was headed. Another example is the political process that has evolved in the United States:
political parties, and their trappings (such as primaries and conventions) are not mentioned or
contemplated in the Constitution, but they are fundamental to our political system.
The second major way the meaning of the Constitution changes is through the judiciary. As the
ultimate arbiter of how the Constitution is interpreted, the judiciary wields more actual power than
the Constitution alludes to. For example, before the Privacy Cases, it was perfectly constitutional
for a state to forbid married couples from using contraception; for a state to forbid blacks and whites
to marry; to abolish abortion. Because of judicial changes in the interpretation of the Constitution,
the nation's outlook on these issues changed.
In neither of these cases was the Constitution changed. Rather, the way we looked at the
Constitution changed, and these changes had a far-reaching effect. These changes in meaning are
significant because they can happen by a simple judge's ruling and they are not a part of the
Constitution and so they can be changed later.
Popular Amendment
One other way of amendment is also not mentioned in the Constitution, and, because it has never
been used, is lost on many students of the Constitution. Framer James Wilson, however, endorsed
popular amendment, and the topic is examined at some length in Akhil Reed Amar's book, The
Constitution: A Biography.
The notion of popular amendment comes from the conceptual framework of the Constitution. Its
power derives from the people; it was adopted by the people; it functions at the behest of and for the
benefit of the people. Given all this, if the people, as a whole, somehow demanded a change to the
Constitution, should not the people be allowed to make such a change? As Wilson noted in 1787,
"... the people may change the constitutions whenever and however they please. This is a right of
which no positive institution can ever deprive them."
It makes sense - if the people demand a change, it should be made. The change may not be the will
of the Congress, nor of the states, so the two enumerated methods of amendment might not be
practical, for they rely on these institutions. The real issue is not in the conceptual. It is a reality that
if the people do not support the Constitution in its present form, it cannot survive. The real issue is
in the practical. Since there is no process specified, what would the process be? There are no
national elections today - even elections for the presidency are local. There is no precedent for a
national referendum. It is easy to say that the Constitution can be changed by the people in any way
the people wish. Actually making the change is another story altogether.
Suffice it to say, for now, that the notion of popular amendment makes perfect sense in the
constitutional framework, even though the details of affecting popular amendment could be
impossible to resolve.
Some Proposed Amendments
The Constitution is a living and evolving document. One of the ways that the Constitution is
changed is through the amendment process. It can be an arduous process, requiring agreement by
many different segments of society and the government, and it does not always work out. But it is
the only way to make a permanent change to the Constitution. Changes in interpretation are
common as time progresses, but only by having actual text added can a change be called a part of
the Constitution.
In every session of Congress, hundreds of constitutional amendments are proposed. Almost never
do any of them become actual Amendments. In fact, almost never do any of them even get out of
committee.
According to a study by C-SPAN, this is a count of the number of amendments proposed in each of
the sessions of Congress in the 1990's:
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106th (1999 only): 60
105th (1997-98): 103
104th (1995-96): 158
103rd (1993-94): 156
102nd (1991-92): 165
101st (1989-90): 214
It is interesting to see the types of things our legislators want to do the Constitution. Proposed
amendments are a reflection of the mood of the nation, or of a subset of the population.
These lists are simple bullets, not detailed examinations of the proposed amendments, the bills that
carried them, or the process they went through. If a further examination is desired, a search of the
Thomas database can be done.
Please note that some proposed amendments are proposed over and over again in different sessions
of Congress. For the sake of brevity, I have used the 102nd Congress as a "baseline" and each
subsequent Congress has only new ideas for amendments listed. Also note that just because a
proposed amendment is not listed in prior sessions does not mean it was not proposed in prior
sessions.
109th Congress (2005-2006)
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To ensure reproductive rights of women
To force the Congress and President to agree to a balanced budget, with overspending
allowed only in the case of a three-fifths vote of Congress
To ensure that all children who are citizens have a right to a "free and adequate education"
To specifically permit prayer at school meetings and ceremonies
To allow non-natural born citizens to become President if they have been a citizen for 20
years
To specifically allow Congress to regulate the amount of personal funds a candidate to
public office can expend in a campaign
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To ensure that apportionment of Representatives be set by counting only citizens
To make the filibuster in the Senate a part of the Constitution
To provide for continuity of government in case of a catastrophic event
The "Every Vote Counts" Amendment - providing for direct election of the President and
Vice President, abolishing the Electoral College
To clarify eminent domain, specifically that no takings can be transferred to a private person
except for transportation projects
Providing a right to work, for equal pay for equal work, the right to organize, and the right to
favorable work conditions
To allow the President to reduce any Congressional appropriation, or to disapprove of same
(akin to a line-item veto)
108th Congress (2003-2004)
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To lower the age restriction on Representatives and Senators from 30 and 25 respectively to
21
To ensure that citizens of U.S. territories and commonwealths can vote in presidential
elections
To guarantee the right to use the word "God" in the Pledge of Allegiance and the national
motto
To restrict marriage in all states to be between a man and a woman
To remove any protection any court may find for child pornography
To allow Congress to pass laws for emergency replenishment of its membership should
more than a quarter of either house be killed
To place Presidential nominees immediately into position, providing the Senate with 120
days to reject the nominee before the appointment is automatically permanent
107th Congress (2001-2002)
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Calling for the repeal of the 8th Amendment and its replacement with wording prohibiting
incarceration for minor traffic offenses
To specify that progressive income taxes must be used
To specify a right to "equal high quality" health care
To limit pardons granted between October 1 and January 21 of any presidential election year
To require a balanced budget without use of Social Security Trust Fund monies
To allow for any person who has been a citizen of the United States for twenty years or
more to be eligible for the Presidency
To force the members of Congress and the President to forfeit their salary, on a per diem
basis, for every day past the end of the fiscal year that a budget for that year remains
unpassed
106th Congress (1999-2000)
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To provide a new method for proposing amendments to the Constitution, where two-thirds
of all state legislatures could start the process
To allow Congress to enact campaign spending limits on federal elections
To allow Congress to enact campaign spending limits on state elections
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To declare that life begins at conception and that the 5th and 14th amendments apply to
unborn children
To prohibit courts from instructing any state or lower government to levy or raise taxes
105th Congress (1997-1998)
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To force a national referendum for any deficit spending
To provide for the reconfirmation of federal judges every 12 years
To prohibit the early release of convicted criminals
To establish the right to a home
To define the legal effect of international treaties
To clarify that the Constitution neither prohibits nor requires school prayer
To establish judicial terms of office
104th Congress (1995-1996)
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To clarify the meaning of the 2nd Amendment
To provide for the reconfirmation of federal judges every 6 years
To force a two-thirds vote for any bill that raises taxes
To repeal the 16th Amendment and specifically prohibit an income tax
To provide for removal of any officer of the U.S. convicted of a felony
To permit the States to set term limits for their Representatives and Senators
103rd Congress (1993-1994)
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To allow a Presidential pardon of an individual only after said individual has been tried and
convicted of a crime
To allow Congress to pass legislation to allow the Supreme Court to remove federal judges
from office
To provide for the reconfirmation of federal judges every 10 years
To provide for the recall of Representatives and Senators
To remove automatic citizenship of children born in the U.S. to non-resident parents
To enable or repeal laws by popular vote
To define a process to allow amendments to the Constitution be proposed by a popular
("grass-roots") effort
To force a three-fifths vote for any bill that raises taxes
To prohibit retroactive taxation
To provide for run-off Presidential elections if no one candidate receives more than 50% of
the vote
To prohibit abortion
To bar imposition on the States of unfunded federal mandates
102nd Congress (1991-1992)
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To disallow the desecration of the U.S. Flag
To allow a line-item veto in appropriations bills
To expand the term of Representatives to four years
To force a balanced budget
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To prohibit involuntary busing of students
To make English the official language of the United States
To set term limits on Representatives and Senators
To repeal the 22nd Amendment (removing Presidential term limits)
To guarantee a right to employment opportunity for all citizens
To grant protections to unborn children
To provide for "moments of silence" in public schools
To allow Congress to regulate expenditures for and contributions to political campaigns
To provide for the rights of crime victims
To provide for access to medical care for all citizens
To repeal the 2nd Amendment (right to bear arms)
To prohibit the death penalty
To protect the environment
To repeal the 26th Amendment (granting the vote to 18-year olds) and granting the right to
vote to 16-year olds
To provide equal rights to men and women
As an example of the tenacity of some ideas, the desire to repeal the 22nd Amendment is a very
popular one. Using the Thomas database, we searched all the way back to the 99th Congress, which
started in 1985, for proposals to repeal the 22nd. In 2005, there was a great deal of discussion, and
derision, of a new proposal to repeal the 22nd. But the derision, certainly, was unwarranted. Every
Congress since the 99th has had at least one proposal with the sole intent of repealing the 22nd.
Other proposed amendments to otherwise affect the 22nd, such as replacing the two-term limit with
a single six-year term, extend back to at least 1979's 96th Congress, but were not included in this
list.