AMENDING THE
CONSTITUTION
Topic #9
Study Guide Questions 1and 2
Q1. Why might we want to amend the
Constitution? What is the relationship
between the amendment process and the
idea of “consent of the governed”?
Q2. What are the four different procedural
routes available for amending the
Constitution? How often has each route
been used?
Article V
• 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 [Commerce compromise]; and
that no State, without its Consent, shall be deprived of its
equal Suffrage in the Senate.
Four Routes For Constitutional
Amendments
Constitutional Amendments
• Congress proposes amendments directly to the states;
such proposals are not subject to a Presidential veto.
– Neither the President nor the Supreme Court has any formal role in
the constitutional amendment process.
– The equal representation of states in the Senate cannot be
changed even by constitutional amendment if a single state
objects.
• Route (1) has been used for all constitutional amendments
except Amendment 21 (repeal of prohibition), which used
Route (2)
• Note that Route (4) is essentially the way the Constitution
itself was proposed and ratified (except that state
legislatures did not formally petition Congress to call the
convention that drafted the Constitution).
A New Constitutional Convention?
• The second procedure for proposing amendments (i.e.,
calling a constitutional convention upon petitions from
two-thirds of the state legislatures) has never been used.
It raises (at least) two procedural questions:
– If petitioned by the requisite number of states, is
Congress obligated to call such a convention?
[Probably yes]
– Can Congress restrict the scope of the amendments
that the convention might propose to particular
subjects?
• Fears have been expressed about a “runaway” convention that,
charged with drafting one or more amendments, might propose
wholesale changes in the Constitution.
• Recall that the original Federal Convention, convened only to
propose amendments to the Articles of Confederation, could be
deemed a “runaway” convention in this sense.
Other Procedural Questions
• Can a state that has ratified a proposed amendment rescind (take
back) its ratification (before the amendment has been ratified by the
requisite number of states and incorporated into the Constitution)?
• Is there (or should there be) some requirement for contemporaneity
in the amendment process, such that an amendment must be
proposed and ratified within in relatively short period of time?
– Amendment 27 -- No law, varying the compensation for the services of
the Senators and Representatives, shall take effect, until an election of
Representatives shall have intervened.
• Proposed in 1789, ratified in 1992.
– This was one of twelve amendments proposed by Congress in 1789 to
fulfill the promise made by the Federalist advocates of the Constitution
that, if the Constitution were ratified, its amending procedure would be
used promptly to attach a Bill of Rights to the Constitution.
– Ten were quickly ratified by the states and are now known as the Bill of
Rights, one (dealing the "ratio of representation" for the House of
Representatives) was never ratified, and the last became the 27th
Amendment more than 200 years after being proposed by Congress.
Procedural Questions (cont.)
• In proposing the Eighteenth (Prohibition) amendment in
1919 and in all amendments since 1933, Congress has
stipulated that an amendment would fail unless ratified
within seven years.
– At first, Congress put this stipulation in the text of the proposed
amendment (see Amendments 18, 20, 21, 22). 
– Subsequently, Congress put the stipulation in the text of the
accompanying resolution.
– But controversy arose over the ratification time limit for the
(failed) Equal Rights [for Women] Amendment (ERA) proposed
in 1972.
– So the stipulation was put back in the text of the amendment in
the subsequent (failed) DC voting power proposed amendment.
Amendment XVIII
• Section 1. After one year from the ratification of this article the
manufacture, sale, or transportation of intoxicating liquors within, the
importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for beverage
purposes is hereby prohibited.
• Section 2. The Congress and the several states shall have
concurrent power to enforce this article by appropriate legislation.
• Section 3. This article shall be inoperative unless it shall have been
ratified as an amendment to the Constitution by the legislatures of
the several states, as provided in the Constitution, within seven
years from the date of the submission hereof to the states by the
Congress.
Chronology of Amendments
• Most amendments have been proposed and ratified in
distinct historical clusters:
– soon after establishment of the federal government (the Bill of
Rights amendments discussed above and two others shortly
thereafter);
– the immediate post-Civil War period;
– "progressive period" early in the 20th century; and
– the "second progressive period" of 1960s.
• The post-Civil War amendments (the 14th Amendment in
particular) are by far the most important — so much so
that this period is sometimes referred to as the “second
founding” of the U.S. government.
– The 14th Amendment will be discussed at some length in
subsequent topics.
Subject Matter of Amendments
• Amendments can grouped with respect to their
effects:
– to secure basic rights and liberties (1-10, 13, 14);
– to extend voting rights mandated by the Constitution
(15, 19, 23, 24, 26);
– to change terms, modes of elections, etc., of various
offices (12, 17, 20, 22, 25);
– to reverse controversial Supreme Court decisions (11,
14 [Dred Scott v. Sanford], 16); and
– to enact and repeal prohibition (18, 21)
Failed Amendments
• Hundreds of additional amendments have been
proposed by individual members of Congress or state
legislatures, several dozen of which have had significant
support.
• But only six amendments have been proposed by
Congress and then failed to be ratified.
– In addition to the two already mentioned (the “ratio of
representation” and ERA amendments), these include:
• an amendment proposed in the early 19th Century that would have
further restricted acceptance by U.S. citizens of titles of nobility and
similar honors from foreign governments;
• an amendment proposed on the eve of the Civil War that would
have prohibited any subsequent amendment that would empower
Congress to make any law that would “abolish or interfere ... with ...
the domestic institutions” (e.g., slavery) of any state;
• an amendment proposed early in the 20th century that would have
explicitly empowered Congress to regulate (and prohibit) child labor;
and
• an amendment proposed in the 1970s that would have granted
federal voting power to the District of Columbia as if it were a state.
Recent and Current Pending Amendments
• There have been many other attempts to propose
constitutional amendments, often to reverse controversial Supreme Court decisions (as several successful
amendments also have done). Recent and pending
attempts to amend the constitution pertain to following
topics:
– to reverse the Supreme Court's abortion decision Roe v. Wade
(or to encode it in explicit constitutional language);
– to reverse (or modify) the Supreme Court's school prayer
decision (Engle v. Vitale);
– to reverse the Supreme Court's “flag burning” (“symbolic
speech”) decision (Texas v. Johnson);
– to mandate a balanced budget and/or tax and spending limits;
– to give the President an item veto (allowing the President to veto
only parts of a bill);
– to modify or abolish the Electoral College for electing the
President;
Pending Amendments (cont.)
– to change the President's term of office (e.g., to a single six-year
term);
– to impose term limits on members of Congress;
– to abolish the Presidential term limit (i.e., to repeal the 22nd
Amendment);
– to repeal the 16th Amendment and specifically prohibit any
federal income tax;
– to make English the official language of the United States;
– to establish judicial terms of office (or to require the periodic
reconfirmation of federal judges);
– to guarantee “victims’ rights” in criminal proceedings;
– to limit the President’s pardon power;
– to provide a new method for proposing amendments to the
Constitution, whereby two-thirds of all state legislatures could
propose amendments (without Congressional action); and most
recently
– to define marriage so as to prohibit same-sex marriage.