Article Five of the United States Constitution

Article Five of the United States Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

describes the process whereby the Constitution may be altered. Altering the Constitution consists of proposing an amendment and subsequent ratification.

Amendments may be proposed by either two-thirds of both houses of the United States Congress

United States Congress

The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

or by a national convention. This convention can be assembled at the request of the legislatures of at least two-thirds of the several states

U.S. state

A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

. To become part of the Constitution, amendments must then be ratified either by approval of the legislatures of three-fourths of the states or ratifying conventions held in three-fourths of the states. Congress has discretion as to which method of ratification should be used. Any amendment so ratified becomes a valid part of the constitution, provided that no state "shall be deprived of its equal Suffrage in the senate," without its consent.

Text

Proposal

Whenever they "deem it necessary," two thirds of both houses of Congress may propose an amendment. This means two-thirds of those members present—assuming that a quorum

Quorum

A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...

exists at the time that the vote is cast—and not necessarily a two-thirds vote of the entire membership elected and serving in the two houses of Congress. It was suggested that the two houses first adopt a resolution indicating that they deem an amendment necessary, but this procedure has never been used—the U.S. Senate

United States Senate

The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

and the U.S. House of Representatives

United States House of Representatives

The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

instead directly proceed to the adoption of a joint resolution, thereby proposing the amendment with the implication that both bodies "deem" the amendment to be "necessary." Up to now, all amendments have been proposed and implemented as codicil

Codicil

Codicil can refer to:* Codicil : An addition made to a will* Any addition made subsequent and appended to the original* Any addition or appendix, such as a corollary to a theorem* Codicil : A poem by Derek Walcott...

s, appended to the main body of the Constitution.

If at least two-thirds of the legislatures of the states so request, Congress is required to call a convention

Convention to propose amendments to U.S. Constitution

A Convention to propose amendments to the United States Constitution, also called an Article V Convention, or Amendments Convention, is one of two alternative procedures for proposing amendments to the United States Constitution described in Article Five of the Constitution...

for the purpose of proposing amendments. This provision, many scholars argue, allows for a check on the power of the Congress to limit potential constitutional amendments.

The state legislatures have, in times past, used their power to apply for a national convention in order to pressure Congress into proposing the desired amendment. For example, the movement to amend the Constitution to provide for the direct election of U.S. Senators began to see such proposals regularly pass the House of Representatives

United States House of Representatives

only to die in the Senate from the early 1890s onward. As time went by, more and more state legislatures adopted resolutions demanding that a convention be called, thus pressuring the Senate to finally relent and approve what later became the Seventeenth Amendment

Seventeenth Amendment to the United States Constitution

The Seventeenth Amendment to the United States Constitution established direct election of United States Senators by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures...

for fear that such a convention—if permitted to assemble—might stray to include issues above and beyond just the direct election of U.S. Senators.

The President

President of the United States

The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

has no formal role in the constitutional amendment process. Article One

Article One of the United States Constitution

Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...

provides, "every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives." As previously stated, the Constitution requires the concurrence of at least two-thirds of the members present of both the House of Representatives and the Senate to a joint resolution which proposes a constitutional amendment. Nonetheless in Hollingsworth v. Virginia
Hollingsworth v. Virginia
Hollingsworth v. Virginia, 3 U.S. 378 , was a case in which the United States Supreme Court ruled early in America's history that the President of the United States has no formal role in the process of amending the United States Constitution. While it is permissible, a Presidential signature is...

(1798), the Supreme Court

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

held that it is not necessary to place constitutional amendments before the President for signature and, by the same logic, the President is powerless to veto

Veto

A veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...

a proposed constitutional amendment.

Ratification

After being officially proposed, a constitutional amendment must then be ratified by the legislatures of, or by conventions

Conventions within the states to ratify an amendment to U.S. Constitution

State ratifying conventions are one of the two methods established by Article V of the United States Constitution for ratifying constitutional amendments. Ratifying conventions have only been used for the ratification of the 21st Amendment...

in, at least three-fourths of the states. Of the 27 amendments to the Constitution that have been ratified, Congress has specified the state conventions ratification method for only one: the 21st Amendment

Twenty-first Amendment to the United States Constitution

The Twenty-first Amendment to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide Prohibition...

, which became part of the Constitution in 1933. Most states hold elections specifically for the purpose of choosing delegates, but even that is not a requirement. For example, New Mexico

New Mexico

New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...

provides, by state law, that the members of its legislature be the delegates at such a state ratification convention, thereby skirting the occasional sentiment that persons other than state lawmakers should consider the ratification of a particular proposed Federal constitutional amendment.

Although a proposed amendment is effective after three-fourths of the states ratify it, states have, in many instances, ratified an amendment that has already become law, often for symbolic reasons. The states unanimously ratified the Bill of Rights

United States Bill of Rights

The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...

; the Thirteenth Amendment

Thirteenth Amendment to the United States Constitution

The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit slavery and involuntary servitude, except as punishment for a crime. It was passed by the Senate on April 8, 1864, passed by the House on January 31, 1865, and adopted on December 6, 1865. On...

, abolishing slavery; the Fourteenth Amendment

Fourteenth Amendment to the United States Constitution

The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

, providing for equal protection and due process; the Fifteenth Amendment

Fifteenth Amendment to the United States Constitution

The Fifteenth Amendment to the United States Constitution prohibits each government in the United States from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude"...

, prohibiting racial discrimination in voting; and the Nineteenth Amendment

Nineteenth Amendment to the United States Constitution

The Nineteenth Amendment to the United States Constitution prohibits any United States citizen to be denied the right to vote based on sex. It was ratified on August 18, 1920....

, granting women a federal constitutional right to vote. In several cases, the ratification process took over a century.

Rescinding a ratification

The validity of a ratification that a state first grants and then later purports to rescind

Rescission

In contract law, rescission has been defined as the unmaking of a contract between parties. Rescission is the unwinding of a transaction. This is done to bring the parties, as far as possible, back to the position in which they were before they entered into a contract .-In court:Rescission is an...

, and of the subsequent ratification of an amendment which that state previously rejected and then later assented to, was addressed by Congress in 1868 when Secretary of State

United States Secretary of State

The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...

William H. Seward

William Henry Seward, Sr. was the 12th Governor of New York, United States Senator and the United States Secretary of State under Abraham Lincoln and Andrew Johnson...

issued a proclamation that what we know today as the Fourteenth Amendment

Fourteenth Amendment to the United States Constitution

was properly ratified and a part of the Constitution. Seward's proclamation noted that Ohio

Ohio

Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...

and New Jersey

New Jersey

New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...

lawmakers had reversed themselves and purported to rescind. Further, Seward's proclamation questioned the validity of those reversals. Shortly thereafter, both houses of Congress adopted a concurrent resolution likewise declaring the Fourteenth Amendment as having been duly ratified and listing Ohio and New Jersey among the states approving it. While Ohio and New Jersey purported to withdraw their earlier ratifications, three other states that had previously rejected the amendment then reversed themselves and proceeded to ratify it. In Coleman v. Miller
Coleman v. Miller
Coleman v. Miller, 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 pursuant to Article V thereof—chooses not to specify a deadline within...

(1939), the Supreme Court declared the question to be non-justiciable, leaving the issue to Congress and accepting the precedent set by Congress' actions some 71 years earlier with respect to the Fourteenth Amendment. It would therefore appear that states may not undo prior ratifications of amendments, although they may ratify an amendment which they had previously rejected. However, Congress is not subject to the doctrine of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

, so a future Congress could simply ignore this precedent. The issue of rescission became important again during the 1970s when the legislatures of four states adopted resolutions purporting to repeal their previous ratifications of the Equal Rights Amendment

Equal Rights Amendment

The Equal Rights Amendment was a proposed amendment to the United States Constitution. The ERA was originally written by Alice Paul and, in 1923, it was introduced in the Congress for the first time...

Deadline imposed on ratification process

The Constitution does not expressly provide for a deadline on the state legislatures' or state ratifying conventions' consideration of proposed amendments. In Dillon v. Gloss
Dillon v. Gloss
Dillon v. Gloss, 256 U.S. 368 , was a case in which the Supreme Court of the United States held that if the United States Congress—when proposing an amendment to the Constitution of the United States—desires to place a deadline on that particular constitutional amendment's ratification, that...

(1921), the Supreme Court affirmed that Congress—if it so desires—could provide a deadline for ratification, writing:

We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.

In the aforementioned Coleman v. Miller decision, the Supreme Court modified Dillon considerably, holding 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. For example, the Twenty-seventh Amendment

Twenty-seventh Amendment to the United States Constitution

The Twenty-seventh Amendment prohibits any law that increases or decreases the salary of members of the Congress from taking effect until the start of the next set of terms of office for Representatives...

was proposed in 1789 and ratified more than 200 years later in 1992. On May 20, 1992, both houses of Congress adopted concurrent resolutions accepting the 27th Amendment's unorthodox ratification process as having been successful and valid.

Beginning in 1917, Congress has usually—but not always—imposed deadlines on proposed amendments. The limitation originally took the form of a clause in the text of the constitutional amendment itself, such as "This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress." Such a clause may be found in the Eighteenth

Eighteenth Amendment to the United States Constitution

The Eighteenth Amendment of the United States Constitution established Prohibition in the United States. The separate Volstead Act set down methods of enforcing the Eighteenth Amendment, and defined which "intoxicating liquors" were prohibited, and which were excluded from prohibition...

, Twentieth

Twentieth Amendment to the United States Constitution

The Twentieth Amendment to the United States Constitution establishes the beginning and ending of the terms of the elected federal offices. It also deals with scenarios in which there is no President-elect...

, Twenty-first

Twenty-first Amendment to the United States Constitution

The Twenty-first Amendment to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide Prohibition...

and Twenty-second

Twenty-second Amendment to the United States Constitution

The Twenty-second Amendment of the United States Constitution sets a term limit for the President of the United States. The Congress passed the amendment on March 21, 1947...

Amendments. However, with the Twenty-third

Twenty-third Amendment to the United States Constitution

The Twenty-third Amendment to the United States Constitution permits citizens in the District of Columbia to vote for Electors for President and Vice President. The amendment was proposed by Congress on June 17, 1960, and ratified by the states on March 29, 1961...

, Twenty-fourth

Twenty-fourth Amendment to the United States Constitution

The Twenty-fourth Amendment prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax...

, Twenty-fifth

Twenty-fifth Amendment to the United States Constitution

The Twenty-fifth Amendment to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President, as well as responding to Presidential disabilities...

and Twenty-sixth

Twenty-sixth Amendment to the United States Constitution

The Twenty-sixth Amendment to the United States Constitution limited the minimum voting age to no more than 18. It was adopted in response to student activism against the Vietnam War and to partially overrule the Supreme Court's decision in Oregon v. Mitchell...

amendments, Congress instead placed the ratification deadline in the preamble of the joint resolution proposing the amendment rather than in the amendment's actual text. And in the cases of the Nineteenth Amendment

Nineteenth Amendment to the United States Constitution

The Nineteenth Amendment to the United States Constitution prohibits any United States citizen to be denied the right to vote based on sex. It was ratified on August 18, 1920....

(proposed in 1919) and the still-pending Child Labor Amendment

Child Labor Amendment

The Child Labor Amendment is a proposed and still-pending amendment to the United States Constitution offered by Republican Ohio Congressman Israel Moore Foster on April 26, 1924, during the 68th Congress, in the form of House Joint Resolution No. 184....

(proposed in 1924), Congress chose specifically not to establish any deadline at all.

As noted in Dillon, the Supreme Court has upheld the power of Congress to set such deadlines on ratification. The power of Congress to extend an already-agreed-upon deadline, however, has not been settled. In 1978, Congress extended the previously-agreed-upon seven-year limit on the ratification of the Equal Rights Amendment

Equal Rights Amendment

by more than three years from a March 22, 1979, original deadline to a June 30, 1982, revised deadline. It was accepted that if the deadline had been contained within the actual text of the amendment itself, Congress could not have extended it, as doing so would involve changing the text of an amendment already ratified by some of the states. In the case of the Equal Rights Amendment, however, it was argued that since the original March 22, 1979, deadline was contained in only the preamble of the joint resolution proposing the amendment—rather than in the actual text of the amendment itself—that the deadline could be altered. In 1981, the United States District Court for the District of Idaho

United States District Court for the District of Idaho

The United States District Court for the District of Idaho is the Federal district court whose jurisdiction comprises the state of Idaho...

, however, found that Congress did not have the authority to extend the deadline, even when only contained within the proposing joint resolution's preamble. The Supreme Court had decided to take up the case, overriding 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 mooting the case. To avoid this controversy with the 1978 constitutional amendment proposed to grant congressional representation to the residents of Washington, D.C.

Washington, D.C.

Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....

, Congress returned to the habit of placing the deadline within the actual text of the amendment itself. The District of Columbia Voting Rights Amendment

District of Columbia Voting Rights Amendment

The District of Columbia Voting Rights Amendment was a proposed amendment to the United States Constitution that would have given the District of Columbia full representation in the United States Congress, full representation in the Electoral College system, and full participation in the process by...

expired unratified in 1985.

Proposed, but unratified, constitutional amendments

Twenty-seven amendments have been ratified and made part of the Constitution. However, four proposed amendments submitted to the states by Congress remain pending for ratification:

Article One of the original Bill of Rights (proposed in 1789)
The Titles of Nobility Amendment
Titles of Nobility amendment
The Titles of Nobility Amendment was proposed as an amendment to the United States Constitution in 1810. Upon approval of a resolution offered by U.S. Senator Philip Reed of Maryland, during the 2nd Session of the 11th Congress, TONA was submitted to the state legislatures for ratification...

(proposed in 1810)
The Corwin Amendment
Corwin amendment
The Corwin Amendment is a proposed amendment to the United States Constitution passed by the 36th Congress, 2nd Session, on March 2, 1861, in the form of House Resolution No. 80...

(proposed in 1861)
The Child Labor Amendment
Child Labor Amendment
The Child Labor Amendment is a proposed and still-pending amendment to the United States Constitution offered by Republican Ohio Congressman Israel Moore Foster on April 26, 1924, during the 68th Congress, in the form of House Joint Resolution No. 184....

(proposed in 1924)

Two other proposed amendments are no longer pending before the state legislatures:

The Equal Rights Amendment
Equal Rights Amendment
The Equal Rights Amendment was a proposed amendment to the United States Constitution. The ERA was originally written by Alice Paul and, in 1923, it was introduced in the Congress for the first time...

(proposed in 1972 and expired in either 1979 or 1982, depending on whether a 1978 extension was constitutional; some supporters argue for Congress or the courts nullifying or extending the deadline, with previous state ratifications still counting)
The District of Columbia Voting Rights Amendment
District of Columbia Voting Rights Amendment
The District of Columbia Voting Rights Amendment was a proposed amendment to the United States Constitution that would have given the District of Columbia full representation in the United States Congress, full representation in the Electoral College system, and full participation in the process by...

(proposed in 1978 and expired in 1985)

External links

Kilman, Johnny and George Costello (Eds). (2000). The Constitution of the United States of America: Analyis and Interpretation.
CRS Annotated Constitution: Article 5
Unamendments, by Jason Mazzone, Iowa Law Review, Vol. 90, p. 1747–1855, 2005.
Friends of an Article V Convention
Scanned documents relating to a convention

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.