Constitutional amendments. (2003). In D. R. Tarr, & A. O'Connor (Eds.), Congress A to Z . Washington: CQ Press. Retrieved August 19, 2005, from CQ Electronic Library, CQ Encyclopedia of American Government

Constitutional Amendments

The framers of the Constitution gave Congress a key role in amending the nation's fundamental body of law. They wanted to ensure that the amendment process embodied the principle of checks and balances, the division of authority among the various branches of government. Thus, they divided the power to amend between Congress, the lawmaking branch of government, and the states, whose ratification of the Constitution originally gave it force.

The Constitution's framers wanted to incorporate some flexibility into their document without making it too easy to change. The method of amending the Articles of Confederation, the nation's first legal charter, had proved to be impractical. Any change in that document required the consent of the Continental Congress and every one of the states. At the other extreme, the British Parliament could change England's unwritten constitution at will.

Under Article V of the Constitution, Congress plays a leading part in proposing amendments. The final decision on amendments still rests with the states, but unanimity is not required. Amending the Constitution nonetheless remains difficult. The first ten amendments, known as the Bill of Rights, are considered practically a part of the original document. Aside from those, the Constitution has been amended only seventeen times in more than two hundred years.

The most recent amendment, ratified in May 1992, prohibits midterm changes in congressional salaries. Proposed by James Madison and approved by the first Congress in 1789, the amendment was sent to the states as part of a package of twelve, ten of which became the Bill of Rights. Six states had ratified the pay raise amendment by 1792; a seventh state did so in 1873 and an eighth over a hundred years later in 1978. By 1992 thirty-three more states had ratified the amendment.

Widespread discontent with Congress inspired the push to ratify the Madison amendment more than two hundred years after it was proposed. Some legal scholars and members of Congress questioned its legitimacy, arguing that the ratification had taken place over too long a span of time.

Thousands of proposed amendments have not become part of the Constitution. Between 1787 and 2002, Congress had submitted only thirty-three amendments to the states; six of those were not ratified.

One of the unratified proposals was the Equal Rights Amendment (ERA), which died on June 30, 1982. Although Congress extended the original 1979 deadline for ratification, the ERA fell three states short of the thirty-eight needed for ratification. The amendment, championed by women's rights advocates, stated: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Congress had approved the proposal in 1972, forty-nine years after it was first introduced.

An amendment that would have given the District of Columbia voting representation in Congress died in 1985. Only sixteen state legislatures ratified that proposal within the seven-year deadline set by Congress.

Several proposed amendments circulated in Congress in recent decades, including measures to require a balanced federal budget, permit prayer in public schools, ban abortion, prohibit the use of busing to desegregate public schools, ban desecration of the U.S. flag, limit the terms of members of Congress, and require in most cases a two-thirds majority vote in both chambers to raise taxes. Congress repeatedly considered several versions of the most popular of these, the balanced-budget amendment, during the 1980s and 1990s, but it always backed away from approval.

Amendment Procedures

The Constitution provides two procedures for amendment, but only one has been used. The process begins with Congress, which by two-thirds majority votes of the Senate and House of Representatives may send amendments to the states for ratification. Under the second, untried method, amendments may be proposed by a constitutional convention, which Congress must convene if requested to do so by the legislatures of two-thirds (thirty-four) of the states.

The Fifteenth Amendment, ratified in 1870, prohibited denial of the right to vote on the basis of race, color, or previous condition of servitude. (Source: Library of Congress.)

In either case a proposed amendment becomes part of the Constitution if it is ratified, or approved, by three-fourths (thirty-eight) of the states. Congress can set a deadline for state ratification of proposed amendments; in recent cases, the limit has been seven years. Congress also has the power to determine which of two procedures states must use to ratify a proposed amendment: approval by either state legislatures or state conventions. In every case but one Congress has prescribed approval by legislatures. The exception was the Twenty-first Amendment, repealing Prohibition.

The president cannot veto constitutional amendments, and governors cannot veto approval of amendments by their legislatures.

Convention Controversy

No procedures have been established for determining what is a valid state call for a constitutional convention, or for running one. As a result, no guidelines have been set for what a convention could debate, how the delegates would be selected, or who would preside. Many people fear a convention might get carried away and open the entire Constitution for amendment. Congressional moves to establish convention procedures never have become law.

Ratified in 1920, the Nineteenth Amendment finally cleared the way for women's suffrage. (Source: U.S. Information Agency.)

Backers of a proposed constitutional amendment that has been bottled up in Congress sometimes campaign for a convention to consider their proposal. While no such campaign has yet succeeded, the effort sometimes spurs Congress to act on the proposed amendment. The Seventeenth Amendment was forced on the Senate in the early 1900s by popular pressure for a constitutional convention to take the selection of senators out of the hands of state legislatures. Fearing that such a convention might go too far, senators decided to submit a specific direct-election proposal to the states.

Some convention campaigns have come close to success. In the 1960s thirty-three states petitioned Congress for a convention on a constitutional amendment permitting one house of a state legislature to be apportioned on some basis other than population. In the 1970s and 1980s thirty-two states petitioned for a convention on an amendment requiring a balanced federal budget.

The balanced-budget campaign illustrates the concern the prospect of a convention can arouse. Responding to a convention drive launched in 1975, Congress began considering a balanced-budget amendment, while intensifying its own efforts to bring the budget under control. In 1982 the Senate passed a balanced-budget amendment by slightly more than the two-thirds majority needed for passage, but the measure failed to garner enough votes in the House. Although the state convention drive lost steam in 1984, Congress continued to debate the balanced-budget amendment issue. In 1986 the Senate rejected a balanced-budget proposal. Efforts in the House were defeated in 1990 and 1992. Both houses of Congress rejected an amendment in 1994. However, in 1995, the House, with its new Republican majority, adopted a balanced-budget measure. The Senate would defeat that amendment twice—in 1995 and 1996. The Senate rejected another proposal in 1997.

Successful Amendments

The Constitution has proved remarkably durable. Although the country has changed dramatically during its more than two-hundred-year history, only a handful of amendments have changed the document drafted in 1787.

The first ten amendments, known as the Bill of Rights, were passed almost at the beginning. Omission of a bill of rights was the principal source of dissatisfaction with the new Constitution in the state ratifying conventions held in 1788. Congress and the states moved quickly, and the amendments were approved in 1791. The Bill of Rights added explicit guarantees of fundamental civil liberties, such as freedom of speech and trial by jury, that had not been spelled out in the original document.

A Supreme Court decision and a crisis in presidential election procedures prompted the next two amendments. The Eleventh Amendment (1795) stated that the power of the federal judiciary did not extend to private suits against states. The Twelfth Amendment (1804) provided for separate balloting for president and vice president in the electoral college.

Civil War Era

The Civil War inspired three amendments. The Thirteenth Amendment (1865) abolished slavery. The Fourteenth Amendment (1868) was designed to protect the basic rights of freed slaves, most significantly by forbidding states to deprive any person of life, liberty, or property without due process of law or to deny anyone equal protection of the laws. The Fifteenth Amendment (1870) prohibited denial of the right to vote on the basis of race, color, or previous condition of servitude.

The due process and equal protection clauses of the Fourteenth Amendment have served as the basis of controversial shifts in the government's role. Until the mid-1930s the amendment was used more often to protect property rights than to safeguard individual liberties. But in the years following World War II, the Supreme Court began to use the Fourteenth Amendment to restrict state action infringing on civil and political rights. By invoking the due process clause, the Court gradually extended the guarantees of the Bill of Rights to cover actions by state governments. Relying largely on the equal protection clause, the Court brought about fundamental reforms in state policies on racial segregation and legislative malapportionment. The equal protection clause was the basis for the Court's historic 1954 decision outlawing racial segregation in public schools.

Twentieth Century

Four amendments were ratified from 1913 to 1920, largely in response to the Progressive movement. The Sixteenth Amendment (1913) gave the United States the income tax, the Seventeenth (1913) provided for direct election of senators, the Eighteenth (1919) prohibited the manufacture, sale, or transportation of alcoholic beverages, and the Nineteenth (1920) cleared the way for women\'s suffrage.

Two more amendments were ratified in 1933. The Twentieth Amendment altered the dates for the beginning of a new Congress and of the president's term. The Twenty-first Amendment repealed the Eighteenth, thus ending Prohibition.

Six amendments have been added to the Constitution since World War II. The Twenty-second Amendment (1951) limited presidents to two terms in office. The Twenty-third (1961) gave citizens of the District of Columbia the right to vote in presidential elections. The Twenty-fourth Amendment (1964) outlawed poll taxes in federal elections. The Twenty-fifth (1967) set procedures for handling presidential disability, and the Twenty-sixth (1971) lowered the voting age to eighteen. (See Youth Franchise.)

The Twenty-seventh Amendment (1992) reads in full: “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.” The ratification of this amendment more than two hundred years after it was proposed by James Madison was a result of public resentment of congressional pay raises. Earlier amendments had taken an average of about a year and a half for ratification.

additional readings

Burns, James MacGregor, Jack W. Peltason, Thomas E. Cronin, and David B. Magleby. Government by the People. 19th ed. Upper Saddle River, N.J.: Prentice Hall, 2001.

Katz, William L. Constitutional Amendments. New York: Franklin Watts, 1974.

Mansbridge, Jane J. Why We Lost the ERA. Chicago: University of Chicago Press, 1986.

Newman, Roger K., ed. The Constitution and Its Amendments. 4 vols. New York: Macmillan, 1999.

Vile, John R. A Companion to the United States Constitution and Its Amendments. 3rd ed. Westport, Conn.: Praeger, 2001.