Omar Bennett
The United States Constitution has been amended only 27 times since it was drafted in 1787, indicating that the process of amending the Constitution is a difficult task. The U.S. Constitution is difficult to change and has only been amended a few times, whereas state constitutions are much easier to modify and are amended on a regular basis. The process of amending the Constitution can be initiated by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures. The amendment must then be ratified by three-fourths of the states (38 out of 50). While the formal amendment process is challenging, the Supreme Court and Congress have modified the Constitution through their decisions and laws.
| Characteristics | Values |
|---|---|
| Difficulty of overturning a constitutional amendment | Very difficult and time-consuming |
| Number of amendments to the U.S. Constitution | 27 |
| Number of proposed amendments | 11,699 |
| Number of amendments proposed by constitutional convention | 0 |
| Number of amendments approved by Congress but not ratified by states | 6 |
| Number of states required to ratify an amendment | 38 (three-fourths) |
| Number of states required to call for a constitutional convention | 34 (two-thirds) |
| House vote required to propose an amendment | Two-thirds supermajority |
| Senate vote required to propose an amendment | Two-thirds supermajority |
| Role of President in amendment process | No official role, but may express opinion and attempt to persuade Congress |
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What You'll Learn
The rarity of amendments to the US Constitution
The US Constitution has been amended only 27 times in over 230 years, indicating that amendments are rare. The framers of the Constitution intended for it to be challenging to amend. Thomas Jefferson believed that the Constitution should be amended at regular intervals, but James Madison, the "father of the Constitution", rejected the idea, arguing that volatile laws would cause instability.
The Constitution's Article V outlines the process for amending it: an amendment may be proposed by any member of the House of Representatives or the Senate, or through a constitutional convention demanded by two-thirds of state legislatures. A proposed amendment is considered under the standard legislative process and must be passed by a two-thirds supermajority vote in both the House and the Senate. Once an amendment resolution is passed, it is sent to the states for ratification. The Archivist of the United States administers the ratification process, and an amendment becomes operative once ratified by three-fourths of the states.
Since 1789, over 11,000 proposals to amend the Constitution have been introduced in Congress, with members of the House and Senate typically proposing around 200 amendments during each two-year term of Congress. However, none of the proposals made in recent decades have become part of the Constitution. Since 1999, only about 20 proposed amendments have received a vote by either the full House or Senate. The last proposal to gain the necessary two-thirds support in both chambers for submission to the states was the District of Columbia Voting Rights Amendment in 1978, which ultimately failed to get state approval in 1985. Six amendments have been approved by Congress but never fully ratified by the states.
While formal amendments are rare, the Supreme Court's decisions and interpretations have effectively modified the Constitution. Additionally, Congress has the power to enact laws that expand the Constitution to address unforeseen events.
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The process of repealing a constitutional amendment
A constitutional amendment can 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. This is the first step in the standard legislative process, which takes the form of a joint resolution. The President does not have a constitutional role in this process, and the resolution does not require their signature or approval.
Once the resolution has been passed, it is forwarded to the National Archives and Records Administration (NARA) for processing and publication. The Office of the Federal Register (OFR) within NARA then assembles an information package for the states, which includes formal copies of the joint resolution.
The proposed amendment must then be ratified by three-fourths of the states (38 out of 50). The states can ratify the amendment through their legislatures or by calling for a convention. Once the required number of states has ratified the amendment, the OFR drafts a formal proclamation for the Archivist of the United States to certify that the amendment is valid and has become part of the Constitution.
It is important to note that the process of amending the Constitution is not limited to the formal amendment process. The Supreme Court, through its decisions, and Congress, through the legislative process, can also effectively modify the Constitution. Additionally, citizens are free to petition Congress or their state legislatures to amend the Constitution.
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The role of the Supreme Court in amending the Constitution
The Supreme Court plays a crucial role in interpreting and applying the Constitution, ensuring its relevance and adaptability to evolving circumstances. Article III, Section I of the Constitution establishes the federal judiciary, vesting judicial power in the Supreme Court and inferior courts established by Congress. This power dynamic is further reinforced by Article VI, which establishes the Constitution as the supreme law of the land, even above Acts of Congress.
The Supreme Court's role in amending the Constitution is not explicit in proposing or ratifying amendments. Instead, its indirect influence stems from its interpretive jurisdiction. The Court's interpretations of the Constitution in various cases have effectively modified its meaning and application without formally altering the text. This dynamic approach ensures the Constitution's adaptability to new challenges and crises, as Chief Justice John Marshall observed in the 1819 McCulloch v. Maryland case.
The Supreme Court's jurisdiction encompasses original and appellate cases. It holds original jurisdiction over disputes between states, cases involving ambassadors, and certain legal orders. Its appellate jurisdiction extends to a broad spectrum of cases involving constitutional or federal law, including those pertaining to treaties and maritime issues. This broad jurisdiction provides ample opportunity for the Court to interpret the Constitution and shape its practical application.
While the Supreme Court cannot unilaterally propose or enact amendments, its decisions can influence public discourse and legislative action. For example, Justice John Paul Stevens' op-ed calling for a repeal of the Second Amendment sparked a national debate. Although formal amendment requires proposals by Congress or state legislatures and ratification by three-fourths of the states, the Court's interpretations can shape the understanding of the Constitution and indirectly influence any potential amendment processes.
In conclusion, the Supreme Court's role in amending the Constitution is not direct but rather interpretive and contextual. Its decisions and doctrines shape the understanding and application of constitutional provisions, sometimes effectively modifying their impact without formally altering the text. This dynamic interplay between the Supreme Court's jurisprudence and the Constitution's text ensures that the nation's founding document remains adaptable to the evolving needs of the nation.
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The role of Congress in proposing and approving amendments
The process of amending the U.S. Constitution is outlined in Article V of the Constitution. This process has been deliberately designed to be challenging, reflecting the framers' intention that the Constitution should only be amended thoughtfully and with good reason.
Congress plays a central role in proposing and approving amendments to the Constitution. An amendment can be proposed by any member of the House of Representatives or the Senate, and it must take the form of a joint resolution. For the proposal to pass, a two-thirds supermajority vote is required in both the House and the Senate. This is a high bar to clear, and thousands of proposed amendments have failed to gain enough support in Congress to proceed to the next stage.
Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA), specifically the 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, as well as assembling an information package for the States.
The Archivist of the United States then 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. At this point, the amendment is in the ratification stage, where it must be approved by three-fourths of the States (38 out of 50) to become part of the Constitution.
It is important to note that the President of the United States does not have a constitutional role in the amendment process and is not required to sign or approve the amending resolution. However, Presidents often express their opinions on proposed amendments and may attempt to influence Congress's vote.
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The role of state legislatures in the amendment process
The process of amending the US Constitution is intentionally challenging. The Constitution grants Congress the authority to propose amendments, which must be ratified by three-fourths of the states. State legislatures play a crucial role in this process, as they can propose amendments and are responsible for ratifying them.
State legislatures have two primary avenues for proposing amendments: through their respective members of the House of Representatives or the Senate, or by calling for a constitutional convention. To propose an amendment through Congress, a two-thirds majority of both the House and the Senate must support it. Alternatively, two-thirds of state legislatures can demand a constitutional convention to propose an amendment. However, in practice, all amendments to date have been proposed by Congress, without the need for a constitutional convention.
Once an amendment is proposed, it is submitted to the states for ratification. State legislatures can choose to actively pursue ratification or wait for official notification. Ratification requirements vary across states, with some requiring majority legislative support and others demanding supermajority legislative backing. A few states, like Nevada, mandate that amendments receive approval in two consecutive elections.
While the process of amending the Constitution through state legislatures is challenging, it is not impossible. The 21st Amendment, which repealed Prohibition, is a notable example of a successful amendment driven by state legislatures. Additionally, state legislatures generate over 80% of constitutional amendments considered and approved annually, showcasing their central role in the amendment process.
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Frequently asked questions
It is very difficult to overturn a Constitutional Amendment. The U.S. Constitution has only been amended 27 times since it was drafted in 1787.
An amendment to the Constitution may be proposed by any member of the House of Representatives or the Senate. It must then be passed by a two-thirds majority vote in both the House and the Senate. It is then ratified by three-fourths of the states.
Yes, the 18th Amendment, which established Prohibition, was repealed by the 21st Amendment in 1933.
The Supreme Court, in many of its decisions, effectively modifies the Constitution. Congress, through the legislative process, also has the power to enact laws that expand the Constitution.
Thomas Jefferson believed the Constitution should be amended at regular intervals. He recommended that "each generation" should have the "solemn opportunity" to update the Constitution "every nineteen or twenty years".
