Eleanor Finch
The United States Constitution outlines the amendment process for altering the governmental structure in Article V. This process is a product of two systems: checks and balances, and federalism. Importantly, the states do not need Congress's permission to apply for and hold a convention to propose constitutional amendments. This is because when two-thirds of state legislatures (34 out of 50) apply for a convention, Congress is constitutionally required to call it. Amendments proposed by an Article V convention are also not subject to Congress's approval. Once an Article V convention has been held, amendments will take effect if ratified by at least three-fourths of states (38 states).
| Characteristics | Values |
|---|---|
| Permission from Congress | Not required |
| Number of states required to apply | 34 out of 50 |
| Amendments subject to Congress's approval | No |
| Ratification required | 38 states |
| Control over agenda | No |
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What You'll Learn
Two-thirds of state legislatures must apply for a constitutional congress
Article V of the U.S. Constitution outlines the process for altering the governmental structure. It is a product of two systems: checks and balances, and federalism. The former is an arrangement of counterbalancing influences that prevents all power from residing in one branch of government, and the latter is a structure that divides power between the national and state governments.
Under Article V, two-thirds of state legislatures, or 34 of the 50 state legislatures, must apply for Congress to call a constitutional congress. This is a way for states to bypass Congress and propose constitutional amendments without requiring Congress's permission or approval. Congress is constitutionally required to call a constitutional congress when two-thirds of state legislatures apply.
Alexander Hamilton wrote in Federalist No. 85 that "The words of this article are peremptory. The Congress 'shall call a convention.' Nothing in this particular is left to the discretion of that body." This highlights that Congress does not have the authority to decide whether states should hold an Article V convention. Congress's role is limited to calling the convention when the required number of state legislatures apply.
The process of proposing constitutional amendments through an Article V convention allows states to circumvent the need for Congress's approval. This mechanism was intentionally designed by the Framers to provide an alternative pathway when Congress is reluctant to propose amendments that could be unpopular among its members but widely supported by the states. For example, proposing a constitutional amendment for congressional term limits would likely face resistance from Congress. By utilizing the Article V convention process, two-thirds of the states could bypass Congress, apply for a convention, propose the amendment, and send it to the states for ratification. If three-fourths of the states approve, the amendment would become law without requiring Congress's permission or support.
However, concerns have been raised about the potential influence of powerful, well-funded interest groups on the constitutional congress process. Former Chief Justice Burger warned that a "Constitutional Convention today would be a free-for-all for special interest groups." There is also a risk that the convention could make wholesale changes to the Constitution and the Bill of Rights, as there is no enforceable mechanism to control the agenda or scope of the convention. Additionally, the broad language in the resolutions passed by states could lead to unintended sweeping changes beyond what legislators envisioned.
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Amendments are not subject to Congress's approval
The process of amending the US Constitution is outlined in Article V of the Constitution. An amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Notably, the President does not have a constitutional role in the amendment process, and amendments are not subject to their approval. Instead, the joint resolution is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.
The Archivist of the United States, who heads NARA, is responsible for administering the ratification process. Once an amendment is proposed, the Archivist submits it to the States for their consideration by sending a letter of notification to each Governor, along with informational material. The Governors then formally submit the amendment to their State legislatures or call for a convention, depending on what Congress has specified.
It is important to note that the process of amending the Constitution is deliberately designed to be challenging. Since the Constitution was drafted in 1787, it has only been amended 27 times, including the first 10 amendments adopted four years later as the Bill of Rights. This highlights the significant impact and importance required for an idea to warrant an amendment to the Constitution.
While Congress plays a crucial role in proposing amendments, the approval process lies with the States, either through their legislatures or a constitutional convention. This ensures that any changes to the Constitution reflect the will of the people and secure the rights of citizens across the nation.
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Congress must call a convention when two-thirds of states apply
The US Constitution's Article V outlines the amendment process for altering the country's governmental structure. It is a product of two systems: checks and balances, and federalism. Checks and balances are an arrangement of counterbalancing influences that prevent all power from residing in one branch of government. Federalism, on the other hand, is a structure that divides power between the national and state governments.
Under Article V, states do not need Congress's permission to hold a convention to propose constitutional amendments. This allows states to bypass Congress. When two-thirds of state legislatures (34 out of 50) apply for a convention, Congress is constitutionally required to call it. Congress does not have any say in the matter besides merely calling the convention when two-thirds of the states apply. Amendments proposed by the Article V convention are also not subject to Congress’s approval.
If a proposed amendment is popular enough, two-thirds of the states can go around Congress and apply for an Article V convention to propose this amendment. If three-fourths of the states (38 out of 50) approve, it becomes law without Congress's permission or support.
However, some concerns have been raised about the potential influence of powerful, well-funded interest groups on the convention process, as well as the possibility of enacting changes that go beyond the original mandate.
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Powerful interest groups may influence the process
The formal work of interest groups is known as lobbying, where they attempt to influence a political outcome. There are three major types of interest groups: public-interest groups, inside lobbying groups, and outside lobbying groups. Public-interest groups claim to work for the best interests of the public, such as animal rights groups (PETA) and environmental groups (Greenpeace). Inside lobbying groups work within the legislative branch of government, such as the United States Congress, to provide testimony, suggest items for consideration, aid in crafting legislation, or mobilize constituents to write to their members of Congress. Outside lobbying groups work with other parts of the government, including the executive branch and federal agencies. They identify or introduce specific pieces of legislation, provide information for or write drafts of policy proposals, and mobilize constituent support.
Interest groups can influence the process of holding a constitutional congress by exerting pressure on elected officials to enact legislation that aligns with their interests. They can also provide strategic advice to lawmakers and influence rule-making processes. Interest groups can also contribute financially to political campaigns, either directly or through Political Action Committees (PACs), which have significantly influenced American elections. This has led to concerns about the potential for interest groups to "buy" influence in politics, as more money comes from businesses and corporations than any other source.
However, interest group participation in politics also has its benefits. James Madison argued that competition among interests (pluralism) would ultimately enhance democracy. Interest groups provide a means for citizens to engage in the political process, allowing the government to understand which issues are of greatest concern to the public. By involving the public in the political process, interest groups can help serve the common good.
To regulate interest group activity, it is necessary to monitor the work of lobbyists and ensure compliance with relevant laws and regulations, such as the Honest Leadership and Open Government Act of 2007, which tightened restrictions on campaign contributions through PACs.
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The convention may enact sweeping changes
One example of a convention leading to sweeping changes was the 1787 Constitutional Convention in Philadelphia. Initially intended to revise the Articles of Confederation, the convention ultimately resulted in the creation of a new frame of government and the ratification of the United States Constitution. James Madison of Virginia played a key role in this convention, arriving early and setting the agenda with his "Virginia Plan," which reflected his strong nationalist views. The convention also gave rise to the Connecticut Compromise, which granted each state two senators instead of three and individual voting power for senators, preventing state governments from having a direct say in Congress's choice to make national laws.
Another example of a convention proposing significant amendments is the New Hampshire Convention, where delegates were instructed to vote against the Constitution. However, when convinced that their voters had been mistaken, the delegates returned to their constituents and requested new instructions, allowing the convention to represent the true voice of the people.
While there are concerns about a convention exceeding its scope or becoming a "runaway convention", the amendments it proposes would still need to be ratified by three-fourths of the states, which is more than the number of states required to call for a convention. This ratification process acts as a check to ensure that any changes enacted by a convention are carefully considered and broadly accepted.
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Frequently asked questions
No. According to Article V of the U.S. Constitution, the states don't need Congress's permission to apply for and hold a convention to propose constitutional amendments.
34 of the 50 state legislatures, or two-thirds of the state legislatures, need to apply for Congress to call a constitutional congress.
No. Amendments proposed by the Article V convention are not subject to Congress's approval.
The Article V convention is a way for states to bypass Congress. When two-thirds of the state legislatures apply for a convention, Congress is constitutionally required to call it.
Congress might try to limit the convention to one amendment or one issue, but there is no way to assure that the convention would obey.
