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Article V of the US Constitution: Amendments

The Founding Fathers worked hard to come up with a Constitution that could stand the test of time. They had both the foresight and humility to know that with changing times there would be a need to change the charter for the US government.

US Constitution Article V, the Amendment Process

Understanding that future eras would bring different issues, challenges, and, the Founding Fathers created an amendment process by which enabling the Constitution to be altered. Article V of the Constitution defines this process as follows:

“The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid, to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”

Two Methods of Proposing Amendments

Article V provides two ways to propose amendments. The first, and only method that has ever been used, is for two-thirds of each House of Congress to pass an Amendment resolution and send it to the States for ratification. The President, whose position is defined in Article II, has no official role in the amendment process.

The second method is for two-thirds of the State legislatures to apply to Congress to call a Convention for the proposing of Amendments.  The Amendment does not provide Congress discretion once the 2/3 threshold is reached.  Article V indicates that “Congress shall” call the convention. This method has never been used, though its existence is credited with ratification of the 17th Amendment providing for the popular election of Senators.

In the book The Sword of Libertyauthor Loren J. Enns, combines an action/adventure story with a message about the value of a Convention to Propose Amendments.  It is both entertaining and educational.

Threat of Article V Convention

Results in Direct Election of Senators

Originally, Article I directed that State Legislatures choose Senators and not by the direct vote of the people. Many states had begun to hold popular elections for United States Senators.  State law or custom directed that the legislature choose the winner of the popular election.  Technically the legislature was still choosing the Senator as directed by Article II; the reality was many states chose their Senators by popular vote.

A movement arose to change to direct election of US Senators nationally, but this required a constitutional amendment. Most Senators had been chosen by the legislatures and were reluctant to send an amendment to the states changing the system by which the Senators had gotten their jobs.

States favoring the direct election of Senators began sending applications to Congress for an Article V Constitutional Convention. Congress, concerned that a convention might not confine itself to that single issue, ultimately proposed the 17th Amendment, which was ratified in 1913.  It was the threat of an Article V Convention that resulted in the 17th Amendment.

Two Methods of Ratification

Article V allows for two methods of ratification. The first, ratification by three-fourths of the State legislatures, has been used for 26 of the 27 amendments to the Constitution.

The second method for ratification is by state ratification conventions and passage by three-fourths of the state conventions. This method has been used once, for the 21st  Amendment, repealing the 18th Amendment and Prohibition.

Limitations on the Amendment Process

Article V limited the amendment authority as follows:

“Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Article I, section 9, clause 1 dealt with the slave trade and bringing new slaves into the country was expressly allowed by that clause, and there was a prohibition regarding changing the clause before 1808. Amendment to clause 4 was prohibited prior to 1808; that clause limited imposition of direct taxes prior to the conduct of a census.

The Constitution may not be amended to reduce a State’s vote in the Senate.

Difficulties of the Amendment Process

The Founding Fathers provided an amendment process, making it difficult on purpose. The Constitution was to have continuity and not to be easily changed by short-term popular sentiment. This has been effective. Congress has sent only 33 amendments to the states for ratification, and only 27 have passed, despite thousands of proposals. Of the 27 that have been ratified by the States, the first 10 known as the Bill of Rights, were ratified just four years after the Constitution was adopted.  The next 17 were added over a period of more than 200 years.

 

Changing Judicial Interpretations

Effectively Amending the Constitution

The Supreme Court has assumed the power of final interpreter of the Constitution’s words. Over the 223 years of its existence, the Court has changed the way the Constitution is read. For example, neither the Miranda Warnings, nor abortion rights are found explicitly in the Constitution, yet the Court has given them Constitutional status. When the Supreme Court changes the way the document is read, then its effect is amended, though the words of the Constitution have not been changed. The Court has assumed this power, though it is not granted in Article III.

 

Evaluating the Founders’ View of An Article V Convention

There are currently several major efforts to employ the Article V provision for a convention called by the states to propose amendments to the Constitution.  One of these efforts is the Compact for America.  A leading proponent of the Compact for America is Nick Dranias.  Mr. Dranias has researched the Founders view of an Article V Convention.  The issues involved and the Founders’ view are explained in a three part series that begins with:   Compact for America Solution to Article V Convention Issues According to the Founders, Part I  .

Constitutionally Speaking Discussion of Article V Convention

On November 30, 2013, on my radio show, Constitutionally Speaking, my guest was Loren Enns, author of The Sword of Liberty.  Mr. Enns is also a director of I Am American, an organization working towards a Convention to Propose Amendments pursuant to the never used state application procedure of Article V.   We discussed the process and prospects of such a convention.  That show is available here:

Michael Farris and Mike Huckabee Discuss Logistics of Article V Convention to Propose Amendments

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  1. […] of Confederation. Perhaps the most profound philosophical changes were in the Constitution’s Articles V and VII on amendments and ratification […]

  2. […] James Madison introduced 12 amendments to the First United States Congress. Congress, by joint resolution, sent these amendments to the states on September 25, 1789. On December 15, 1791, with Virginia’s ratification, (11th of the then 14 states) 10 of the proposed amendments became part of the Constitution through the Constitution’s Article V amendment process. […]

  3. […] women’s voting rights were introduced in the United States Congress.  The Constitution’s Article V requires a two-thirds vote by both houses of Congress for a proposed amendment to be submitted to […]

  4. […] Constitutional Amendment was intended to restrict the power and size of the federal government. Over the decades the federal […]

  5. […] war, the nation in 1865 took a new stand–freedom for all people. The new order was backed by amendments to the national constitution making it the fundamental law that thenceforth there should be no […]

  6. […] Article V  provides the amendment procedure;   Article VI contains the Supremacy Clause and Article VII defines the constitutional ratification process. […]

  7. […] defines the relationship between the states and each other and the states and federal government. Article V defines the roles of the states and Congress in amending the Constitution.  Article VI, which […]

  8. […] Article V establishes two methods of constitutional amendment. One, congressional initiation of amendments, has been employed 27 times. The never used second method empowers the states3 to bypass Congress and initiate an amendment convention. Article V provides power to the states and the people, as the creators of the federal government, to alter that government by convening an Article V Convention. Few Americans know they possess this power. […]

  9. […] for Altering or Revoking Agency (Art. V, Provisions to […]

  10. […] Article V made the states and the federal government full partners in making amendments to the Constitution. […]

  11. […] Fourth Amendment of the Bill of Rights was ratified in 1791.  In the following centuries the Supreme Court carved out exceptions to the Amendment’s […]

  12. […] general warrants and disparate treatment of Americans would lead to 1791′s Fourth Amendment ratification as part of the Bill of Rights.  The Amendment banned general warrants by requiring probable cause […]

  13. […] federalism, the original Constitution placed few limits on the exercise of state power.  Through amendment many of the Constitution’s limitations on government authority have been expanded to include […]

  14. […] the Fourteenth Amendment and sent it to the States for ratification on June 13, 1866. With the ratification of the twenty-eighth State, South Carolina, on July 9, 1868, it became part of the US […]

  15. […] and other legal documents to determine meaning.[8]  The Federalist Papers and proponents of ratification relied upon such rules when explaining the Constitution during the Ratification process.  Members […]

  16. […] Eleventh Amendment was proposed and obtained twelve state ratifications by February 7, 1795,[5] becoming the first amendment following the Bill of […]

  17. […] ratification of the Bill of Rights 1791 until the 1946 adoption of the Federal Rules of Criminal Procedure […]

  18. […] who were opposed to the tax, but had introduced the amendment, Delaware became the 36th state to ratify on February 3, 1913, and the Sixteenth Amendment became part of the […]

  19. […] the Twelfth Amendment to the States on December 9, 1803. New Hampshire was the thirteenth state to ratify on June 15, 1804 completing the ratification […]

  20. […] March 29, 1961 with the ratifications of Kansas and Ohio, the Twenty-Third Amendment became part of the […]

  21. […] a result of these issues on March 2, 1932, Congress sent the Twentieth Amendment to the States for ratification. Ratification became effective on Jan. 23, 1933 when the States of Georgia, Missouri, Ohio and Utah […]

  22. […] the number supporting the policies of the wet states shrank to 126. The time was right to send a constitutional amendment to the […]

  23. […] the approval of Congress (acknowledged in the Constitution‘s Article I, section 10) with the Article V state convention process for amending the Constitution.  This allows for a process that has speed, […]

  24. […] the second in a series of articles that examine the Founders’ opinions on how the Article V Convention process should have clear focus. The US Constitution’s Article V provides two […]

  25. […] Movements had started in Congress as early as 1939 to act to remove poll taxes, but it was not until August 27, 1962 that a two-thirds majority of both houses of Congress sent the following to the States for ratification: […]

  26. […] after the First Congress convened, New York and Virginia filed applications for an Article V[3] Convention on Amendments. The Federalists were in control of Congress, and led by James […]

  27. […] to do this was unclear.   For slavery to be abolished with certainty in the United States, a constitutional amendment was […]

  28. […] became the Fifteenth Amendment to the Constitution on February 3, 1870 with the ratification by […]