Malcolm Rivera
The process of overturning a constitutional amendment is a complex and challenging endeavour. The U.S. Constitution, with its 27 amendments, was designed to be difficult to amend, ensuring that any changes are well-considered and not made frivolously. To repeal an existing amendment, a new amendment must be proposed and ratified. There are two methods to achieve this: firstly, through a proposal by two-thirds of the House and Senate, followed by ratification by three-quarters of the states; and secondly, via a constitutional convention called for by two-thirds of state legislatures, with the subsequent draft amendment also requiring ratification by three-quarters of the states. The Supreme Court, through its decisions, and Congress, through legislation, also have the ability to interpret, modify, and expand the Constitution without employing the formal amendment process.
| Characteristics | Values |
|---|---|
| Number of amendments to the US Constitution | 27 |
| Difficulty of amending the Constitution | Very difficult |
| Number of proposed amendments | Thousands |
| Number of amendments approved by Congress but never ratified by states | 6 |
| Number of amendments repealed | 1 (18th Amendment) |
| Number of amendments proposed by constitutional convention | 0 |
| Number of amendments requiring ratification by state conventions | 1 (21st Amendment) |
| Thomas Jefferson's view on amending the Constitution | Should be amended at regular intervals |
| James Madison's view on amending the Constitution | Rejected Jefferson's idea |
| Supreme Court's role in modifying the Constitution | Decisions in many cases effectively modify the Constitution |
| Congress's power | Can enact laws that expand the Constitution |
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What You'll Learn
The rarity of amendments being overturned
The US Constitution has only 27 amendments because its framers wanted the process to be difficult. Amending the Constitution was never meant to be simple. Although thousands of amendments have been discussed since the original document was approved in 1788, there are now only 27 amendments in the Constitution. The Constitution’s Article V requires that an amendment be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. It is up to the states to approve a new amendment, with three-quarters of the states voting to ratify it.
The framers knew it would be impossible for the Constitution they were writing to address every situation that might come along. They also knew that it should never be amended frivolously or haphazardly. Clearly, their process for amending the Constitution has succeeded in meeting that goal. Constitutional amendments are intended to improve, correct, or otherwise revise the original document.
The difficulty of amending the Constitution has far from frozen the document in stone. The process of changing the Constitution by means other than the formal amendment process has historically taken place and will continue to take place. For example, the Supreme Court, in many of its decisions effectively modifies the Constitution. Similarly, the framers gave Congress, through the legislative process, the power to enact laws that expand the Constitution as needed to respond to unforeseen future events.
In the history of the United States, only one constitutional amendment has been repealed. In 1933, the 21st Amendment repealed the 18th Amendment, better known as "prohibition", banning the manufacture and sale of alcohol in the United States.
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The process of proposing an amendment
An amendment can be proposed by any member of the House of Representatives or the Senate, and it will undergo the standard legislative process in the form of a joint resolution. Additionally, as per the First Amendment, all American citizens have the right to petition Congress or their state legislatures to propose amendments. For an amendment to be approved, a two-thirds supermajority vote is required in both the House and the Senate. The President of the United States does not have a constitutional role in this process, and their signature or approval is not required.
If an amendment is approved by Congress, it is then sent to the governors of all 50 states for their approval, a process known as "ratification." To become part of the Constitution, an amendment must be ratified by three-fourths of the states (38 out of 50 states). This ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). Once the required number of authenticated ratification documents is received by NARA's Office of the Federal Register (OFR), a formal proclamation is drafted for the Archivist to certify the amendment's validity. This certification is then published in the Federal Register, marking the completion of the amendment process.
It is important to note that the process of proposing an amendment does not guarantee its success. In fact, thousands of amendments have been discussed, but only 27 amendments have been made to the Constitution since it was drafted in 1787. This highlights the rigorous and deliberate nature of the amendment process.
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The legislative process
Once an amendment is proposed, it is forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes and publishes the resolution in slip law format, along with an information package for the states.
For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50). State legislatures or state-called conventions can ratify the proposed amendment, and upon doing so, they send an original or certified copy of the state action to the Archivist of the United States, who heads NARA. The Archivist delegates many duties to the Director of the Federal Register, who examines the ratification documents for authenticity and legal sufficiency.
If the required number of ratification documents is received, the OFR 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 serves as official notice of the amendment's completion.
While the legislative process for overturning a constitutional amendment is formal and meticulous, it is important to note that there are other ways to effectively modify the Constitution. The Supreme Court's decisions can shape the interpretation and application of the Constitution, and Congress can also enact laws that expand the Constitution to address unforeseen events.
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The role of the President
The President does not have a constitutional role in the amendment process. The joint resolution does not go to the White House for signature or approval. Instead, the original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication.
However, in recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. For example, President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon witnessed the certification of the 26th Amendment along with three young scholars.
Presidents, typically express their opinion of proposed amendments and may attempt to persuade Congress to vote for or against them.
The U.S. Constitution has only 27 amendments because its framers wanted the process to be difficult. Amendments can be proposed by Congress or through a constitutional convention demanded by state legislatures. To become part of the Constitution, an amendment must be ratified by three-fourths of the states.
The Constitution’s Article V requires that an amendment be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. It is up to the states to approve a new amendment, with three-quarters of the states voting to ratify it.
In addition, as ensured by the First Amendment, all American citizens are free to petition Congress or their state legislatures to amend the Constitution.
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The ratification process
The process of overturning a constitutional amendment is the same as the process of amending the Constitution. The Constitution's Article V requires that an amendment be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures.
An amendment to the Constitution may be proposed by any member of the House of Representatives or the Senate and will be considered under the standard legislative process in the form of a joint resolution. In addition, as ensured by the First Amendment, all American citizens are free to petition Congress or their state legislatures to amend the Constitution.
The joint resolution does not go to the White House for signature or approval as the President does not have a constitutional role in the amendment process. Instead, the original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States.
For an amendment to be approved, the amending resolution must be passed by a two-thirds supermajority vote in both the House and the Senate. If approved by Congress, the proposed amendment is sent to the governors of all 50 states for their approval, called “ratification”. An amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 of 50 States).
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. 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 recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President.
It is important to note that while the process of amending the Constitution is challenging and time-consuming, there are other ways to change it. For example, the Supreme Court, in many of its decisions, effectively modifies the Constitution. Similarly, Congress has the power to enact laws that expand the Constitution as needed to respond to unforeseen future events.
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Frequently asked questions
The process of overturning a constitutional amendment is the same as the process of amending the Constitution. An amendment may be proposed by any member of the House of Representatives or the Senate, and it must be passed by a two-thirds majority vote in both the House and the Senate. If approved by Congress, the proposed amendment is sent to the governors of all 50 states for their approval, called “ratification”. For an amendment to become part of the Constitution, it must be ratified by three-quarters of the states (38 out of 50).
The Sixteenth Amendment (1913) gave Congress the power to levy an income tax, overturning Pollock v. Farmers’ Loan and Trust Co. (1895). The Twenty-sixth Amendment (1971) granted 18-year-olds the right to vote in all elections, overturning Oregon v. Mitchell (1970).
The Eighteenth Amendment, which prohibited the manufacture, sale, and transportation of alcohol, is the only amendment that has ever been repealed. It was repealed by the Twenty-first Amendment.
The Supreme Court's decisions often effectively modify the Constitution. Congress also has the power to enact laws that expand the Constitution as needed. Other ways to change the Constitution include legislation, presidential actions, federal court rulings, actions of political parties, and simple custom.
The President does not have a constitutional role in the amendment process, and the joint resolution does not go to the White House for signature or approval. However, Presidents typically express their opinions on proposed amendments and may attempt to persuade Congress to vote for or against them.
