Malcolm Rivera
The process of amending the US Constitution is a difficult and rare one. The US Constitution has only 27 amendments because its framers intended for the process to be challenging. Amendments can be proposed by Congress or through a constitutional convention requested by state legislatures. A two-thirds majority of the House and Senate or two-thirds of state legislatures must propose an amendment, which must then be ratified by three-quarters of the states. While thousands of amendments have been proposed, only 27 have been ratified. The most recent amendment, the 27th Amendment, was ratified in 1992 and prohibits members of Congress from raising their salaries during a term in progress. The Constitution can be changed in five unofficial but legal ways: legislation, presidential actions, federal court rulings, actions of political parties, and custom. Any existing amendment can be repealed, but only through the ratification of another amendment. This is a challenging process, and only one amendment, the 18th Amendment, which established Prohibition, has been repealed.
| Characteristics | Values |
|---|---|
| Can Congress repeal an amendment to the Constitution? | Yes, but it's a complex process. |
| How often has it been done? | Only one amendment, the 18th Amendment, has been repealed by the states. |
| How does the process work? | An amendment must be proposed by two-thirds of the House and Senate or by a constitutional convention called for by two-thirds of the state legislatures. Then, three-quarters of the states must vote to ratify it. |
| Who is involved in the process? | Congress, state legislatures, the Archivist of the United States, the Director of the Federal Register, and the President. |
| How long does it take? | It can take years, as seen with the 21st Amendment, which repealed the 18th Amendment in 1933, over a decade after it was ratified. |
| How often are amendments proposed? | Thousands of amendments have been discussed since 1788, but there are only 27 amendments to the Constitution as of 2016. |
| Are there other ways to change the Constitution? | Yes, there are five unofficial but legal ways: legislation, presidential actions, federal court rulings, actions of political parties, and simple custom. |
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What You'll Learn
The process of repealing a constitutional amendment
Any existing constitutional amendment can be repealed, but only by ratifying another amendment. The process of repealing an amendment is the same as that of a regular amendment. Firstly, an amendment must be proposed. This can be done by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or through a constitutional convention called for by two-thirds of state legislatures. The President does not have a role in this process.
Once proposed, the amendment must be ratified. Ratification requires the approval of three-quarters of the states (38 out of 50 states). State conventions, rather than state legislatures, can be called for ratification votes if there are concerns about lobbyist influence. The Archivist of the United States is responsible for administering the ratification process. When enough states have approved the amendment, the Archivist certifies it as valid, and it becomes part of the Constitution.
In the history of the United States, only one constitutional amendment has been repealed: the 21st Amendment repealed the 18th Amendment in 1933, ending the prohibition of alcohol. Six amendments have been approved by Congress but never ratified by the states, including the District of Columbia Voting Rights Amendment in 1985.
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The rarity of amendments being repealed
The Constitution's Article V outlines the process for proposing and ratifying amendments. An amendment must be proposed by a two-thirds majority in both the House and the Senate or through a constitutional convention called for by two-thirds of state legislatures. Subsequently, three-quarters of the states must ratify the amendment for it to come into effect. This intricate process acts as a safeguard, ensuring that any changes to the Constitution undergo thorough scrutiny and deliberation.
The rarity of amendment repeals is further evident from the historical record. Since the Constitution's inception in 1788, there have been thousands of proposed amendments, yet only one amendment, the 18th Amendment, has been repealed. The 18th Amendment, ratified in 1919, prohibited the manufacture, sale, and transportation of alcoholic beverages. However, by the early 1930s, Prohibition had become widely unpopular, leading to the passage of the 21st Amendment, which repealed the 18th Amendment in 1933.
While there have been discussions about repealing other amendments, such as the 16th, 17th, and 22nd Amendments, none of these talks have gained significant traction. The odds of repealing an amendment are considered extremely slim, comparable to the likelihood of an 80-year-old being struck by lightning, according to the National Weather Service data. This rarity underscores the high bar set by the Constitution's framers to prevent frivolous or haphazard changes to the nation's foundational document.
The complexity and rarity of amendment repeals highlight the stability and continuity that the Constitution's framers sought to achieve. While the process allows for necessary revisions, corrections, and improvements, it also ensures that any changes undergo an extensive and deliberate journey, reflecting the gravity of altering the nation's supreme law.
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The 18th Amendment: the only amendment repealed by the states
The 18th Amendment to the United States Constitution, which established the prohibition of alcohol, was ratified by the requisite number of states on January 16, 1919. While the amendment initially led to a decline in alcohol consumption, it proved difficult to enforce nationwide. Alcohol smuggling and illicit bars became popular, and public sentiment began to turn against Prohibition during the 1920s. The Great Depression further hastened its demise, as opponents argued that the ban denied jobs to the unemployed and much-needed revenue to the government.
The 18th Amendment was the result of decades of efforts by the temperance movement, which argued that prohibiting alcohol would eliminate poverty and improve society. However, the act was largely unsuccessful in preventing the mass distribution of alcoholic beverages and inadvertently caused a massive increase in organized crime. By the early 1930s, Prohibition had become widely unpopular, and Congress passed the 21st Amendment, with its repeal provision, in February 1933.
The 21st Amendment was unique in its ratification process and purpose. It was the first amendment to be ratified by state conventions rather than state legislatures, out of fear that the temperance lobby would influence state lawmakers. This process reduced the ratification to a one-state, one-vote referendum. The 21st Amendment not only repealed the broad prohibition on alcohol but also added language to the Constitution, allowing states to define alcohol laws within their borders.
The 18th Amendment is the only amendment in American history to be repealed by the states. Any existing constitutional amendment can be repealed, but only through the ratification of another amendment. This process is intentionally challenging, as the framers of the Constitution wanted to prevent frivolous or haphazard changes. As a result, the odds of repealing a constitutional amendment are extremely slim.
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The role of the Archivist in the amendment process
The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA). The Archivist is responsible for the supervision and direction of the National Archives. The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States is charged with the responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register.
The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures or call for a convention, depending on what Congress has specified. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register.
The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in good order, the Director acknowledges receipt and maintains custody of them. When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and the Nation that the amendment process has been completed.
In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive. In all United States presidential elections, the Archivist also has duties concerning the custody of Electoral College documents, such as certificates of ascertainment declaring the names of the presidential electors chosen in each state.
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The Second Amendment under scrutiny
The Second Amendment to the US Constitution, which guarantees "the right of the people to keep and bear Arms, shall not be infringed", has faced increasing scrutiny in recent years. This scrutiny has centred around the interpretation of the amendment and its impact on gun violence and gun control legislation.
In March 2018, former Supreme Court Justice John Paul Stevens called for the repeal of the Second Amendment, arguing that it prioritises gun ownership over public safety. This sparked a public debate about the possibility of repealing one of the Constitution's original amendments, which is a rare and challenging process.
The Second Amendment has been interpreted differently by various courts and constitutional scholars. The Bruen Court, for example, rejected the traditional means-end scrutiny approach and adopted a text-and-history test, asserting that only gun laws consistent with 18th and 19th-century regulations are constitutionally permissible. This interpretation has been criticised for its logical inconsistencies and for privileging legislative judgments from a time when legislatures were unrepresentative of a large portion of the American population.
Other approaches, such as intermediate scrutiny, have also been applied in cases challenging gun control statutes. Despite the various interpretations, the judicial branches have rarely imposed significant constraints on the legislative power to regulate guns short of total bans.
The process of repealing a constitutional amendment is complex and rare. Any existing amendment can be repealed, but only by ratifying another amendment. This requires a proposal by two-thirds of the House and Senate or a constitutional convention called for by two-thirds of state legislatures, followed by ratification by three-quarters of the states. While thousands of amendment changes have been proposed, only one amendment, the 18th Amendment on Prohibition, has been repealed by the states.
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Frequently asked questions
An amendment can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. To become part of the Constitution, an amendment must be ratified by three-quarters of the states. An amendment can also be proposed through a constitutional convention called for by two-thirds of the state legislatures.
The 18th Amendment, which established Prohibition, is the only amendment that was repealed by the states. The 21st Amendment, passed by Congress in 1933, included a repeal provision.
The Senate historian estimates that approximately 11,699 amendment changes have been proposed in Congress through 2016. There are 27 amendments in the Constitution as of 1992.
