Amendment of the Constitution

Article V allows for the Constitution to be amended. Several possible variables make up this process, but whichever one is chosen requires the cooperation of both the Congress and three-fourths of the states. The constitutional amendment process may be initiated by Congress or it can be initiated by the states. Congress, by two-thirds vote of both houses, can propose that an amendment be sent to the states for ratification. Additionally, the states may, on application of the legislatures of two-thirds of the states, request of Congress that a constitutional convention be held where amendments can be proposed. Whichever method is used, Congress determines whether ratification will occur through the state legislatures or through state conventions. Ratification of an amendment by three-fourths of the states, by whatever method Congress stipulates, makes the amendment a part of the Constitution. The Framers clearly anticipated that either Congress or the state legislatures might prove recalcitrant when changes to the Constitution were necessary. They therefore provided an initiation process that could largely bypass the participation of the federal legislature, and an approval process that could altogether bypass the participation of the state legislatures. But the nation as a whole and the states collectively—whether acting through the people or their governments – must both participate in the amendment process.

How the Constitution can and cannot be amended is fascinating, and the switch from a unanimity requirement under the Articles of Confederation to a supermajority requirement under the Constitution is telling. The change was clearly meant to make the amendment process less difficult than had been the case under the Articles. But at the same time, the three-fourths requirement in the Constitution would ensure that the amendment process was not too easy.

Where do Amendments come from?

The Constitution allows Congress to control some aspects of the amendment process, but allows states to have the ultimate say in amending the Constitution. Congress can directly propose amendments to the Constitution, subject to the ratification of the states.

Conversely, states can apply to Congress for a constitutional convention so that amendments may be proposed. As James Madison, writing as Publius, suggested in Federalist No. 39, the engagement of both levels of government kept the national and federal principles intact. Proposed amendments would be subject to ratification by the states. Congress, however, retains the power to determine how the amendments, whether proposed by Congress or through constitutional convention, are to be ratified. Amendments may be ratified through state legislatures or through state conventions, at Congress’ discretion.

Over 5,000 amendments have been introduced in Congress, but only 33 of these have succeeded in passing Congress to be formally proposed to the states for ratification. Of these 33 proposed amendments, 27 were ultimately ratified. 26 of these were ratified by state legislatures, and only one—the Twenty-First Amendment, which repealed Prohibition—was ratified by the state convention method. 

A constitutional convention has never been used to amend the Constitution. Some scholars argue that the threat of application for a constitutional convention might have spurred Congress itself to propose constitutional amendments.

What cannot be amended?

In providing for an amendment process, the Constitution does name a couple of issues that were off limits to amendment or could be subject to amendment only under certain conditions. For example, the Constitution could not be amended to limit the slave trade or increase the import duties on slaves until 1808. In addition, Article V still protects states from having their equal representation in the Senate taken away without that state’s consent. In practice, what this means is that that there is still one provision in the Constitution which would require the unanimous consent of all the states in order to amend it. The states’ equal suffrage in the Senate is effectually guaranteed in perpetuity.