The Amendment Process

A Constitution That Can Change — Carefully

Most written constitutions around the world are either too rigid to adapt or too easy to rewrite. The American Constitution was designed to avoid both failures.

Article V lays out a two-stage process: an amendment must first be proposed, then ratified. Each stage has two possible paths. The Framers deliberately made both stages difficult, but not impossible. The bar is high enough that changes require broad consensus, but low enough that the document can be repaired when it fails.

The result is a constitution that has been amended only 27 times in over two centuries. But those 27 amendments have abolished slavery, guaranteed equal protection, extended the vote to women and eighteen-year-olds, and fundamentally reshaped the relationship between the federal government and the states.

“The Constitution is not a suicide pact.” Justice Robert H. Jackson, Terminiello v. City of Chicago, 1949

That line was written about free speech, but it applies just as well to Article V. The amendment process exists because the Framers knew they were not omniscient. They built a way to fix what they got wrong — and to respond to problems they could not have imagined.

Two Ways to Put an Amendment on the Table

An amendment does not go directly to the states. It must first be formally proposed. Article V creates two mechanisms for this.

The Congressional method is straightforward. The convention method is a constitutional black box.

Scholars have debated the convention process for decades. Three questions remain unresolved:

First, must Congress actually call the convention? Article V says Congress “shall” call one, which sounds mandatory. But some modern scholars argue Congress can effectively block a convention by reviewing state applications and disputing whether the requisite number has been reached.

Second, can the convention be limited in scope? This is the “runaway convention” debate. Some argue states can apply for a convention on a specific topic, and the convention is bound to that topic. Others warn that once convened, a convention has the same plenary power as the original Constitutional Convention — which ignored its instructions to merely revise the Articles of Confederation.

Third, who controls the convention’s rules? Article V does not say. Congress might set procedural rules, or the states might, or the convention itself might.

These are not academic questions. At various points in American history, movements have pushed for a convention on a balanced budget amendment, term limits, and campaign finance reform. None have reached the 34-state threshold. But the possibility remains open.

Three-Fourths of the States

Once an amendment is proposed, it goes to the states for ratification. Article V gives Congress the power to choose between two modes of ratification.

Congress has sole discretion to choose the mode of ratification. The Supreme Court has confirmed this authority, stating that the choice of ratification mode “lies in the sole discretion of Congress.”

Once Congress selects a mode, three-fourths of the states must approve. No presidential signature is required. No popular vote is required. The states act through their legislatures or through specially elected conventions, and their decisions are final.

What Article V Cannot Touch

Article V contains two unamendable provisions. These are the only parts of the Constitution that cannot be changed through the normal amendment process.

The second limit is the more consequential one today. It means that the malapportionment of the Senate — Wyoming’s 580,000 residents have the same voting power as California’s 39 million — is constitutionally locked in place. No amendment can change it without every state agreeing, which is functionally impossible.

Thousands Proposed, Twenty-Seven Ratified

The numbers tell the story of how difficult amendment is.

The six amendments that failed to be ratified include some of the most significant proposals in American history: the Titles of Nobility Amendment (1810), the Corwin Amendment protecting slavery (1861), the Child Labor Amendment (1924), the Equal Rights Amendment (1972), the D.C. Voting Rights Amendment (1978), and the Balanced Budget Amendment (various versions).

A Case Study in Ratification Failure

The Equal Rights Amendment is the clearest modern example of how the amendment process can stall — and how contested its mechanics remain.

Congress proposed the ERA in March 1972 with the required two-thirds vote. The resolution included a seven-year ratification deadline in its preamble. By 1977, 35 states had ratified — three short of the 38 needed. Congress extended the deadline to 1982, but no additional states ratified before it expired.

Since 1982, three more states have voted to ratify: Nevada (2017), Illinois (2018), and Virginia (2020). That brings the total to 38 — the threshold required by Article V. But the deadline expired, and the National Archivist has not certified the amendment.

The legal questions are unresolved:

Are ratification deadlines constitutional? Article V says nothing about time limits. Congress began adding them to proposed amendments in the twentieth century. The Supreme Court upheld a deadline in Dillon v. Gloss (1921), but did not settle whether Congress can revive an amendment after a deadline expires.

Can states rescind their ratifications? Six states voted to rescind their ERA ratifications before 1982. The Constitution does not say whether rescission is permitted. A federal district court ruled in 1981 that Idaho could rescind, but the case became moot before the Supreme Court could review it.

Does Article V allow a deadline at all? The American Bar Association updated its policy in 2024 to support the position that ratification deadlines are not consistent with Article V. Others argue that Congress has broad authority to structure the amendment process.

The ERA is not just a story about women’s rights. It is a story about the unresolved questions inside Article V itself.

The Supermajority Principle

Article V requires supermajorities at every stage. Two-thirds to propose. Three-fourths to ratify. That means an amendment must command near-consensus — not just a bare majority, but agreement across regions, populations, and political factions.

This was intentional. The Framers had seen how easily state constitutions could be rewritten. They wanted the national Constitution to be stable enough to be a foundation, but flexible enough to be a forge.

The difficulty cuts both ways. It means that good amendments can fail — the ERA, the Child Labor Amendment, and the D.C. Voting Rights Amendment all fell short. It also means that bad amendments are hard to pass — Prohibition was ratified, but it was repealed fourteen years later. The system corrected itself.

The supermajority requirement also means that small states have enormous power. Thirteen states — representing less than 10% of the population — can block any amendment. That is a feature, not a bug, of the system the Framers designed. It forces amendment proposals to appeal beyond population centers and to win support from rural and small-state interests.

“The mode of amendment is neither wholly national nor wholly federal. It is a compromise between the two.” James Madison, The Federalist No. 39, 1788

A Hammer and an Anvil

Article V is the hinge on which the Constitution swings between permanence and adaptation. It is the reason the document can be both a foundation and a forge — stable enough to build on, flexible enough to reshape when the building is flawed.

The process is slow. It is frustrating. It requires more than most political movements can achieve. But every amendment that has succeeded — from the Bill of Rights to the Twenty-Seventh — has earned its place through the most demanding ratification process in the democratic world.

That is not a bug. It is the design. The hammer is heavy because the anvil matters.