The Amendment and Ratification Process

The Amendment Process

The Virginia Plan had anticipated from the start that an amendment process would be needed for the new Constitution, but it provided sparse details for what it should look like. It resolved only “that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary,” and it made only one suggested proviso: “that the assent of the National Legislature ought not to be required thereto.” When the resolution was first debated in the Committee of the Whole, the initial objections were from a surprising direction. “Several members,” according to Madison, believed that it was unnecessary to make any provision for amendments at all. Although the need for an amendment process may seem obvious to us today, not all of the state constitutions had provided explicit protocols for their own amendment, and some delegates evidently believed that the new federal Constitution would not need them either. Madison did not record any reasons given for this position, but he did record the reasons given by those who insisted that an amendment provision be added.

Elbridge Gerry said that “the novelty and difficulty of the experiment [of writing a new constitution] requires periodical revision.” George Mason was more blunt: “The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments, therefore, will be necessary; and it will be better to provide for them in an easy, regular, and constitutional way, than to trust to chance and violence.” The delegates unanimously chose to make some provision “for the amendment of the Articles of Union whensoever it shall seem necessary,” but they postponed any consideration of whether that provision should bypass the Congress. That question would not be taken up again until the end of the summer.

Proposals for the Amendment Process

There was no specific proposal for an amendment process until the Committee of Detail made its report on August 6. The Committee’s report proposed that: “On the application of the legislatures of two thirds of the states in the Union, for an amendment of this Constitution, the legislature of the United States shall call a convention for that purpose.” According to this process, the state legislatures would be the originators of all amendments, and a general convention would be the means of ratifying them. Congress would be limited to the pro forma task of calling for a convention, but it would have no role to play either in proposing amendments or deciding whether they should be adopted.

Gouverneur Morris did not care for the way that the Committee’s report relegated Congress to a position of insignificance, and he “suggested, that the legislature should be left at liberty to call a convention whenever they pleased.” He therefore started the idea that Congress should be allowed to have some agency in the amendment process, at least some of the time. For almost two weeks the Convention stuck to their decision that all amendments should be ratified in a national convention and that national conventions should be formed whenever two-thirds of the states asked for one. 

But Elbridge Gerry feared that amendments might be passed too easily with the mode that they had adopted, and therefore it would put state prerogatives in jeopardy. “This Constitution, he said, is to be paramount to the state constitutions. It follows, hence, from this article, that two thirds of the states may obtain a convention, a majority of which can bind the Union to innovations that may subvert the state constitutions altogether. He asked whether this was a situation proper to be run into.” Gerry’s motion to reconsider gained overwhelming support, 9-to-2, but everyone seemed to have their own reasons for thinking the mode they had adopted needed to be reconsidered.

Involving the Legislature in the Amendment Process

Roger Sherman suggested that they add an alternative mode of amendment to the one they had already chosen: “or the legislature may propose amendments to the several states for their approbation; but no amendments shall be binding until consented to by the several states.” Wilson suggested that they replace “several states” with a requirement of two-thirds of the states, but his motion lost on a 5-to-6 vote. He then suggested that it should require three-fourths of the states, and this choice was accepted unanimously. Madison thought they should consider an alternative formulation. He moved that amendments would be proposed by Congress—either when two-thirds of both Houses of Congress initiated the process or when two-thirds of the state legislatures requested Congress to act. Proposed amendments could then be ratified either by three-fourths of the state legislatures or by three-fourths of state ratifying conventions. Finally, Congress could always decide which mode of ratification was to be sought in each case. The delegates adopted Madison’s proposal by a 9-to-1 vote, with New Hampshire divided.  This proposal now involved both the state legislatures and Congress in the process, but it no longer allowed a way to bypass Congress altogether.  

Final Changes to the Amendment Process

When this article was debated for the last time on September 15, the delegates chose to make a couple more minor changes. Members from the small states had begun to feel uneasy that the equality that they had managed to achieve in the Senate—a concession which they had managed to wrest from the other states after considerable difficulty—might one day be taken from them through the amendment process. They therefore tried various stratagems to bolster the strength of the small states in the amendment process. Ultimately, the delegates agreed to add “a further proviso,—‘that no state, without its consent, shall be deprived of its equal suffrage in the Senate.’” 

George Mason, who had always been the chief advocate for the principle that states should be able to bypass Congress in the amendment process, now objected to the way that the original proposal had been transformed. As the provision now stood, whichever mode was chosen for proposing amendments, Congress would be involved either “immediately” or “ultimately.” The states would have no recourse for remedying constitutional ills “if the government should become oppressive, as he verily believed would be the case.” Morris and Gerry therefore suggested that, whenever two-thirds of the states requested amendments, the proposal for the amendments would be generated in a general convention instead of Congress. Madison again objected that this appeal to a general convention was too vague, because no provision was made for how such a convention should be formed or how it would vote. But his objections were ignored. The states unanimously agreed to make the change. 

Although the Convention’s provisions for an amendment process had, at times, a seemingly haphazard progression throughout the Convention, the provision that was ultimately adopted had many merits. It provided alternative routes for seeking amendments, each of which required a lengthy two- or three-step process (which meant that no amendment could be passed without careful deliberation), yet in each case the process was easier than what had been required under the Articles of Confederation. The Framers’ decision to provide alternative routes to adopt an amendment enabled state legislatures to bypass Congress (if they deemed it necessary), but it also enabled Congress to bypass the state legislatures (if that choice seemed desirable or necessary). Nonetheless, in spite of the array of choices that the Constitution offers, almost all of the amendments that have been incorporated into the Constitution have taken the route that offers the greatest collaboration between the state and federal legislatures.