CONSTITUTIONAL AMENDMENT
The means by which an alteration to the U.S. Constitution, whether a modification, deletion, or addition, is accomplished.
Article V of the U.S. Constitution establishes
the means for amending that document accord-
ing to a two-step procedure: proposal of amend-
ments, followed by ratification. Amendments
may be proposed in two ways: by a two-thirds
vote of both houses of Congress or by a special
convention summoned by Congress on the peti-
tion of two-thirds (34) of the state legislatures.
In the long history of the U.S. Constitution,
over 5,000 amendments have been introduced
in Congress.Only 33 of these have been formally
proposed by Congress, and none has ever been
proposed by a special convention.
No matter which method is used for the pro-
posal of a constitutional amendment, Congress
retains the power to decide what method will be
used for ratification: approval of three-fourths
(38) of the state legislatures, or approval of
three-fourths (38) of special state conventions.
Congress may also place other restrictions, such
as a limited time frame, on ratification.
Of the 33 amendments proposed by Con-
gress, 27 were ratified. Of the amendments rat-
ified, only one—the TWENTY-FIRST AMENDMENT,
which repealed a PROHIBITION on alcohol—was
ratified by the state convention method. The rest
have been ratified by three-fourths of the state
legislatures.
The process for amending the Constitution
is deliberately difficult. Even when an amend-
ment is proposed by Congress, it has taken, on
average, two-and-a-half years for it to be ratified.
That difficulty creates stability, with its accom-
panying advantages and disadvantages. The
advantages lie in the fact that the Constitution’s
provisions are not subject to change according to
the whims of a particular moment. The disad-
vantages inhere in the reality that the Constitu-
tion must also adapt and be relevant to a
changing society. Given the difficulty of amend-
ment, much of the burden of adapting the Con-
stitution to a changing world has fallen on the
shoulders of the Supreme Court and its powers
of JUDICIAL REVIEW, which have been described
as an informal method of changing the Consti-
tution. However, constitutional amendments
may in turn modify or overturn judicial opin-
ion, as was the case with the Eleventh, Thir-
teenth, Fourteenth, Sixteenth, Nineteenth,
Twenty-fourth, and Twenty-sixth Amendments.
Commentators have also pointed out that
the amendment process is not a very democratic
one. As the constitutional scholar EDWARD S.
CORWIN wrote: “A proposed amendment can be
added to the Constitution by thirty-eight states
containing considerably less than half of the
population of the country, or can be defeated by
thirteen states containing less than one-twenti-
eth of the population of the country.”
Brief History of
Constitutional Amendments
Before the creation of the U.S. Constitution
in 1787, constitutional amendments had
already been instituted as part of several early
state constitutions. The pioneering framers of
these state constitutions recognized the need to
incorporate an element of flexibility into CON-
STITUTIONAL LAW, and they provided for con-
stitutional amendment through the legislature
or through special conventions. However, the
first national CONSTITUTION OF THE UNITED
STATES, the ARTICLES OF CONFEDERATION, did
not have such flexibility. Amendment of that
document required a unanimous vote of Con-
gress, nearly impossible to achieve.
The Framers of the U.S. Constitution sought
to avoid the inflexibility of the Articles of Con-
federation. JAMES MADISON, one of the principle
architects of the Constitution, argued in The
Federalist Papers that the new compact’s amend-
ment procedures, unlike those of the old Arti-
cles, protected “equally against that extreme
facility, which would render the Constitution
too mutable, and that extreme difficulty, which
might perpetuate its discovered faults.”
Proving the truth of Madison’s contention,
the first ten amendments to the Constitution
were passed as a package by the first session of
Congress in 1791. This group of amendments is
called the BILL OF RIGHTS. The Bill of Rights ful-
filled a promise that the backers of the Constitu-
tion, known as the Federalists, had made during
the ratification procedure of the Constitution. It
guarantees specific liberties relating to (1) rights
of conscience, including the freedoms of speech,
press, religion, and peaceable assembly (FIRST
AMENDMENT); (2) rights of the accused, includ-
ing freedom from “unreasonable searches and
seizures” (FOURTH AMENDMENT), freedom from
compulsory SELF-INCRIMINATION (FIFTH
AMENDMENT), the “right to a speedy and public
trial, by an impartial jury” and with legal coun-
sel (SIXTH AMENDMENT), and freedom from
“excessive bail” and “cruel and unusual punish-
ments” (EIGHTH AMENDMENT); and (3) rights of
property, including freedom from seizure of
property without “due process of law” (Fifth
Amendment).
Subsequent amendments have dealt with
many different issues, including the extent of
federal judicial jurisdiction (ELEVENTH AMEND-
MENT [1795]), the method of electing the presi-
dent (TWELFTH AMENDMENT [1804]), the
ABOLITION of SLAVERY (THIRTEENTH AMEND-
MENT [1865]), legalization of the INCOME TAX
(SIXTEENTH AMENDMENT [1913]), granting
women the right to vote (NINETEENTH AMEND-
MENT [1920]), presidential succession (TWENTY-
FIFTH AMENDMENT [1967]), and the voting age
(TWENTY-SIXTH AMENDMENT [1971]).
The FOURTEENTH AMENDMENT (1868),
which holds that no state shall “deprive any per-
son of life, liberty, or property, without DUE
PROCESS OF LAW; nor deny to any person . . . the
EQUAL PROTECTION of the laws,” has arguably
been the most important and far-reaching of all
the amendments, particularly with regard to its
Due Process and Equal Protection Clauses.
Through the Fourteenth Amendment, most of
the provisions of the Bill of Rights were eventu-
ally applied to the states.
In 1972, the EQUAL RIGHTS AMENDMENT
(ERA) was formally proposed by Congress. The
ERA, which would have forbidden discrimina-
tion on the basis of sex, failed to gain ratification
within the seven-year deadline proposed by
Congress, even after a 39-month extension through June 30, 1982.
FURTHER READINGS
Amar, Akhil R. 2000. The Bill of Rights: Creation and Reconstruction.
New Haven, Conn.: Yale Univ. Press.
Antieau, Chester James. 1995. A U.S. Constitution for the Year
2000. Chicago, IL: Loyola.
Chase, Harold W., and Craig R. Ducat, eds. 1978. “Article V.”
In The Constitution and What It Means Today, by
Edward S. Corwin. 14th ed. Rev. Harold W. Chase and
Craig R. Ducat. Princeton: Princeton Univ. Press.
Gilbert, Robert E., ed. 2000. Managing Crisis: Presidential
Disability and the Twenty-fifth Amendment. Bronx, N.Y.:
Fordham Univ. Press.
Gonzalez, Carlos E. 2002.“Popular Sovereign Generated Versus
Government Institution Generated Constitutional
Norms: When Does a Constitutional Amendment Not
Amend the Constitution?” Washington University Law
Quarterly 80 (spring): 127–242.
Harrigan, John J. 1984. Politics and the American Future.
Reading, Mass.: Addison-Wesley.
Kohn, Bernice. 1974. The Spirit and the Letter: The Struggle
for Rights in America. New York: Viking Penguin.
Palmer, Kris E., ed. 2000. Constitutional Amendments, 1789
to the Present. Detroit: Gale Group.
Strauss, David A. 2001. “The Irrelevance of Constitutional
Amendments.” Harvard Law Review 114 (March):
1457–1505.
Vile, John R. 2003. Encyclopedia of Constitutional Amendments,
Proposed Amendments, and Amending Issues,
1789-2002. 2d ed. Santa Barbara, Calif.: ABC-CLIO.
CROSS-REFERENCES
Constitution of the United States.
