- Article Five of the United States Constitution
Article Five of the
United States Constitutiondescribes the process whereby the Constitution may be altered. Such amendments may be proposed by the United States Congressor by a national convention assembled at the request of the legislatures of at least two-thirds of the several states. To become valid, amendments must then be ratified by either the legislatures of or ratifying conventions held in three-fourths of the several states, and may not deny a state equal representation in the Senate without its consent. However, an amendment that removes this entrenchment clausefrom the amendment process may enable a subsequent amendment to deny a state its equal representation in the Senate without its consent.
:"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."
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
quorumexists 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 and the U.S. House of Representatives 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 codicilto 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 for the purpose of proposing an amendment. 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 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 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.Fact|date=June 2007
Since Article Five does not make clear how the amendment-proposing convention is to be composed and operated, Congress—presumably through enactment of a Federal statute—could determine how the delegates are chosen and to provide for other procedural details.Fact|date=June 2007
The President has no formal role in the constitutional amendment process. Article One 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. In "
Hollingsworth v. Virginia" (1798), the Supreme Court 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 vetoa proposed constitutional amendment.
After being officially proposed, a constitutional amendment must then be ratified by the legislatures of, or by conventions in, at least three-fourths of the states. It is not mandatory that amendments proposed by Congress be ratified by legislatures nor is it mandatory that amendments proposed by a national convention be ratified by state conventions; either mode of proposal may be used with either mode of ratification. Of the twenty-seven amendments to the Constitution that have been ratified, Congress has specified the state conventions ratification method for only one: the Twenty-first Amendment, 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 Mexicoprovides, 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, in many instances states have ratified an amendment that has already become law, often for symbolic reasons. The states unanimously ratified the
Bill of Rights, the Thirteenth Amendment, abolishing slavery, the Fourteenth Amendment, providing for equal protection and due process, the Fifteenth Amendment, prohibiting racial discrimination in voting, and the Nineteenth Amendment, granting women a federal constitutional right to vote. [Chin, Gabriel J. & Anjali Abraham (2007), [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1076805 "Beyond the Super-Majority: Post-Adoption Ratification of the Equality Amendments"] , Arizona Legal Studies Working Paper No. 32-07.] 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, 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
William H. Sewardissued a proclamation that what we know today as the Fourteenth Amendment was properly ratified and a part of the Constitution. Seward's proclamation noted that Ohioand New Jerseylawmakers 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" (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", so a future Congress could simply ignore this precedent. The issue of recision 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.
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" (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 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, Twentieth, Twenty-first and Twenty-second Amendments. However, with the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth 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 (proposed in 1919) and the still-pending
Child Labor Amendment(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 Amendmentby 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, a Federal District Court in 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. ["Idaho v. Freeman", 529 F. Supp. 1107 (D. Idaho 1981).] The Supreme Court had decided to take up the case, overriding the Court of Appeals, [Certiorari before judgment granted, "NOW v. Idaho", 455 U.S. 918 (1982).] 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. [Judgments of the District Court of Idaho vacated; cases remanded with instructions to dismiss as moot. "NOW v. Idaho", 459 U.S. 809 (1982).] To avoid this controversy with the 1978 constitutional amendment proposed to grant congressional representation to the residents of Washington, D.C., Congress returned to the habit of placing the deadline within the actual text of the amendment itself. The District of Columbia Voting Rights Amendmentexpired 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(proposed in 1810), the Corwin Amendment(proposed in 1861) and the Child Labor Amendment(proposed in 1924). Two other proposed amendments are no longer pending before the state legislatures—the Equal Rights Amendment(proposed in 1972 and expired, depending upon one's point of view, in either 1979 or in 1982) and the just-mentioned District of Columbia Voting Rights Amendment(proposed in 1978 and expired in 1985).
* [http://www.gpoaccess.gov/constitution/browse.html Kilman, Johnny and George Costello (Eds). (2000). "The Constitution of the United States of America: Analyis and Interpretation."]
* [http://www.law.cornell.edu/anncon/html/art5toc_user.html CRS Annotated Constitution: Article 5]
*" [http://ssrn.com/abstract=803864 Unamendments] ", by Jason Mazzone, Iowa Law Review, Vol. 90, p. 1747-1855, 2005.
* [http://www.foavc.org] The new group "Friends of the Article V Convention" has been formed to educate the public about Article V's constitutional right for a convention to propose amendments and to build public support for a convention.US ConstitutionPhotographic reproductions of the texts of the actual applications for an Article V Convention can be read at the FOAVC site. This is the first time in history the [http://foavc.org/file.php/1/Amendments/index.htm applications] have been gathered in a single location available for public inspection.
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