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Article V of the U.S. Constitution provides two processes for proposing and two processes for ratifying amendments. Consistent with the role of the Constitution as a superior law designed to rein in legislative and other governmental powers, both processes are designed to be more difficult than the processes for ordinary legislation. Congress must either muster a two-thirds majority to propose amendments, or, in a still unused provision, two-thirds of the states can request Congress to call a convention to propose amendments. Three fourths of the state legislatures, or special conventions within three-fourths of the states (a mechanism used only in the case of the amendment repealing national alcoholic prohibition), must subsequently approve them.

The Early Amendments

During ratification debates over the Constitution, Federalist proponents of the document praised its amendment-making mechanisms as being superior to the process under the Articles of Confederation, which required congressional proposal and unanimous approval of the states. Federalist claims got an early test. Anti-Federalists had criticized the new Constitution for omitting a bill of rights to protect the people against the new national government. When James Madison, a prominent proponent of the new Constitution, agreed to work for a bill of rights, he hoped to protect individual rights, but he also wanted to ensure that amendments did not undo the work of the Constitutional Convention, which had provided for a more powerful national government. Madison fought a heroic and successful fight to get the first Congress to devote attention to introducing such rights to calm Anti-Federalist fears at a time when many of his colleagues thought that there were more pressing issues at state. Ultimately, Congress proposed twelve amendments, ten of which the states ratified in 1791. Although Madison had favored integrating these amendments into the constitutional text, Roger Sherman succeeded in convincing Congress to add them to the end of the document, which now provides a trail of constitutional alterations throughout American history.

The Bill of Rights continues to represent some of the nation’s most important ideals. The First Amendment protects freedoms of religion, speech, press, peaceable assembly (linked to freedom of association), and petition. The Second Amendment provides for the right to bear arms, and the Third Amendment limits the quartering of troops in private homes. The Fourth Amendment prohibits unreasonable searches and seizures and requires probable cause for search warrants, and, in addition to providing for compensation for government takings, the Fifth and Sixth Amendments follow with a variety of rights for individuals accused of crimes or on trial for them. The Seventh Amendment provides for jury trials in civil cases, and the Eighth Amendment limits bail, fines, and prohibits cruel and usual punishments. The Ninth Amendment indicates that the list of rights is not exclusive, while the Tenth Amendment recognizes that states reserve some unspecified powers to themselves.

Congress proposed the Bill of Rights in 1789, which the states ratified in 1791. Similarly, states ratified the Eleventh Amendment in 1795, just two years after a Supreme Court decision in Chisholm v. Georgia, which had allowed out-of-state citizens to sue states without their consent and contrary to assurances that some Federalists had made during ratification debates.

Congress proposed the Twelfth Amendment in 1803, and the states ratified in 1804. Reacting both to presidential elections in which the president and vice president had been chosen from different parties and to the 1800 election in which Democratic and Republican presidential and vice presidential candidates tied, this amendment altered the electoral college mechanism so that electors began to cast separate votes for the top two offices.

Post–Civil War Amendments

The first twelve amendments suggested that the amending process was relatively easy, but subsequent experience proved otherwise. Despite rising tensions between the North and South, and numerous proposals for alterations that might head off conflict, Congress proposed only two amendments between 1803 and the Civil War (1861–1865), and both failed. The first would have disbarred individuals who accepted titles of nobility from citizenship, while the second would have exempted slavery from federal action.

The Civil War temporarily broke the amending logjam and resulted in the most consequential amendment in U.S. history. The Thirteenth Amendment (1865) prohibited involuntary servitude. The Fourteenth Amendment (1868) overturned the Scott v. Sandford (1857), by declaring that all persons, including blacks, who were born or naturalized in the United States were citizens. It also guaranteed all such citizens the privileges and immunities of U.S. citizens and protections of due process and equal protection. The Fifteenth Amendment (1868) further prohibited voting discrimination on the basis of race. Supreme Court decisions, culminating in the doctrine legitimizing “separate but equal” treatments in Plessy v. Ferguson (1896), however, narrowed interpretations of the Thirteenth and Fourteenth Amendments, while states embraced poll taxes, literacy tests, and other devices that limited African American voting rights.

Progressive Era Amendments

The years from 1868 to 1913 marked a period of amendment stalemate, followed by another period of reform associated with the Progressive Era. The Sixteenth Amendment overturned the Supreme Court decision in Pollock v. Farmers’ Loan & Trust Co. (1895), and allowed for a national income tax, while the Seventeenth Amendment provided for direct election of U.S. senators (previously chosen by state legislatures). The Eighteenth Amendment (1919) inaugurated national alcoholic prohibition, while the Nineteenth (1920) prohibited discrimination on the basis of sex. Significantly, the Seneca Falls Convention had called for such a right, which both the Fourteenth and Fifteenth Amendments had ignored, in 1848.

Modern Amendments

Subsequent amendments have been largely inconsequential by comparison. The Twentieth Amendment (1933) shortened the so-called lame-duck service of the president and members of Congress after new elections. The Twenty-first Amendment (1933) repealed the Eighteenth. The Twenty-second Amendment (1951), adopted in the wake of Franklin D. Roosevelt’s unprecedented election to four terms, capped future presidential service at two full terms or no more than ten years. The Twenty-third Amendment (1961) provided for representation in the electoral college for the District of Columbia while the Twenty-fourth (1964) prohibited the poll tax in national elections. The Twenty-fifth Amendment (1967) made provision for presidential disability, the Twenty-sixth (1971) provided for national voting at age eighteen, thus effectively negating the Supreme Court decision in Oregon v. Mitchell (1970), which had ruled that Congress could only legislate on this matter relative to national elections. Finally, the Twenty-seventh amendment, originally proposed as part of the Bill of Rights and limiting the timing of congressional pay raises until after intervening elections, was putatively ratified in 1992.

Many Are Called, But Few Are Chosen

Members of Congress have introduced more than twelve thousand amending proposals, most of which have been redundant. Congress has only proposed thirty-three by the required majorities, and the states have ratified only twenty-seven. In addition to proposals discussed previously, states have failed to ratify an amendment relative to congressional representation proposed with the original bill of rights, a child labor amendment, an amendment that would have granted the District of Columbia voting representation in Congress, and a proposed equal rights amendment for women.

After comparing the U.S. amending process to those in eleven democratic nations that use a system of legislative supremacy to adopt constitutional changes—those in nine nations that have legislative supremacy with an intervening election; those in five nations that allow for an amendment referendum to bypass the legislature; and those in seven nations, including the United States, that require such a referendum or its equivalent in complexity—political scientist Donald Lutz found that the U.S. system was the second most difficult in the world behind Australia. Because the Constitution is interpreted capaciously, however, institutions of government, especially the courts, have been able to render many decisions that have adapted the constitution to changing times, short of formal amendments.

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