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Capitol Corner

Amending the Constitution

What is the process for changing the Constitution?

Amending the Constitution by Ilona NickelsSince 1789, over 10,000 amendments to the Constitution have been introduced in Congress. Of those, only 33 were adopted and sent to the states for ratification, and only 27 were ultimately ratified. Article V of the Constitution provides for changing the Constitution either through a) an act of Congress or through b) a national constitutional convention. All 27 amendments to the Constitution since its ratification were adopted through the first method: by act of Congress.

Any Member of Congress may propose to amend the Constitution by introducing a joint resolution. The legislation is treated like any other in terms of committee consideration, floor scheduling and debate. Passage, however, requires a 2/3 vote in each chamber. If all were present that would mean 290 out of 435 Members of the House and 67 out of 100 Senators. These super-majorities are very difficult to obtain.

Once passed, the proposed amendment is not sent to the President. Instead, it is sent to the states. Three-fourths -- or 38 -- of the states must ratify the proposed amendment. Congress is given the authority by Article V to select one of two methods for the states to use in the ratification process: ratification by vote of the state legislatures or ratification conventions called for that purpose. Only one amendment -- the 21st (repealing Prohibition) -- was ratified using the state convention method instead of being ratified by the state legislatures.

Examples of prominent amendments in recent years which received much congressional attention but failed to survive the process include the Flag Desecration Amendment, the Balanced Budget Amendment, the Equal Rights Amendment, a Term Limits Amendment, and a School Prayer Amendment.

The following amendments were added to the Constitution in the twentieth century:

XVI: Establishment of an income tax (1913) XVII: Direct election of Senators (1913) XVIII: Prohibition (1919) XIX: Women's right to vote (1920) XX: Defines presidential and congressional terms and presidential succession (1933) XXI: Repeal of Prohibition (1933) XXII: Presidential term limit (1951) XXIII: District of Columbia residents right to vote (1961) XXIV: Abolishes poll taxes (1964) XXV: Presidential incapacitation; vice-presidential vacancy (1967) XXVI: Voting age lowered to 18 (1971) XXVII: Prohibits midterm pay raises for Congress (1992)

George Washington has been quoted as saying the Constitution was an imperfect product, made more perfect by the ability to amend it. The Founding Fathers anticipated that changes to the Constitution would be necessary with changing times and established a process for amending it in Article V of that document. In earlier years, no deadline was imposed for an amendment to wind its way through the states. For example, the 27th amendment was proposed in 1789 and only ratified in 1992, 203 years later!

In recent years, however, Congress has included a deadline for ratification within the text of a proposed amendment -- seven years has been the usual time frame imposed. Within that period, if 38 states do not ratify the amendment, it fails. In the case of the failed Equal Rights Amendment, its original deadline was extended from 1979 to 1982, but even with that unusual extension, a sufficient number of states failed to ratify the amendment.

The second option for amending the Constitution, the call of a National Convention as described in Article V, has never been implemented successfully. There has only been one constitutional convention to date - the original 1787 Constitutional Convention, which produced the U.S. Constitution.

A National Constitutional Convention requires 2/3 of all state legislatures (34) to petition Congress to convene a National Constitutional Convention. Because Article V contains no guidelines for how such a National Convention would be run, its processes are subject to interpretation, and the constitutional and legal questions surrounding them have divided constitutional scholars. The key controversies have been about:

Whether or not the scope of the Convention’s work could be limited to the specific topics outlined in the petitions, or once convened, would the Convention have the authority to propose revisions to the entire Constitution? Who would the delegates to the Convention be, and how would they be chosen? How would the expenses of the Convention and the delegates be paid for? How long could the Convention take to finish its work? Any amendments to the Constitution the Convention recommended would have to be ratified by ¾ (38) of the states before taking effect. How would the proposed amendments be transmitted to the states and how long could the states take to ratify those amendments? Despite these unanswered questions, three attempts to hold a National Convention have come just 1-2 states shy of the required number for a successful petition.

Between 1906 and 1912, 31 of the 32 states required [only 48 states at that time] signed a petition calling for an Article V Convention to allow for direct election of all U.S. Senators. The National Convention proposal was scrapped because the Senate proposed such an amendment on its own – and it became the 17th Amendment to the Constitution in 1913. Between 1963 and 1973, 33 of the required 34 states signed a petition calling for a National Constitutional Convention to address the issue of apportionment of state legislative districts. When the key sponsor of the idea, Senator Everett Dirksen of Illinois died, the wind went out of the sails of the effort. In 1983, 32 of the 34 states required had signed a petition calling for an Article V Convention to consider a Balanced Budget amendment to the Constitution. Controversies about the process a Convention would follow stymied further process and the passage of the Gramm-Rudman-Hollings Balanced Budget Act by Congress in 1985 effectively ended the efforts Even though petitions to Congress to call a National Constitutional Convention have not succeeded to date, they have at times been the spur for Congress to take action on the topic in question. Thomas Durbin, a Legislative Attorney in the American Law Division of the non-partisan Congressional Research Service writes,

“Four constitutional amendments have occurred because of this prodding effect of the petition applications from the legislatures of the various states, namely the direct election of Senators (17th Amendment), the repeal of prohibition (18th Amendment), the limitation of presidential terms (22nd Amendment), and the presidential succession provisions (25th Amendment). Moreover, the prodding effect on Congress of the petitions of 32 states requesting a constitutional convention to propose an amendment to balance the federal budget seems to have spurred recent Congresses to actively consider the balanced budget issue as well as propose constitutional amendments to balance the budget.”

You can request a free copy of Durbin’s entire 24 page report from any one of your 3 Members of Congress: CRS Report for Congress #95-589, “Amending the U.S. Constitution: by Congress or by Constitutional Convention” May 10, 1995.

Here is what the Constitution says about amending the Constitution:

U.S. Constitution, 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 several States, or by Conventions in three-fourths thereof, as the one or 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.”

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