Article V of the United States Constitution

Why the procedure is so demanding

The framers had just seen the Articles of Confederation require unanimity for amendment, which had made change impossible. Article V is a deliberate relaxation of unanimity, and by the standards of 1787 it was thought workable.

Two things have made it harder since.

The number of States rose from thirteen to fifty. Three quarters of thirteen is ten; three quarters of fifty is thirty eight. Thirteen States can block anything, and thirteen States contain less than five per cent of the population.

The parties polarised. Two thirds of both Houses is now almost unobtainable on any contested question.

The result is that the last ratified amendment was in 1992, and it had been proposed in 1789.

The consequence

Constitutional change in the United States now happens almost entirely through the Supreme Court, and that is the most important comparative fact about Article V.

Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), overruled Roe v. Wade, 410 U.S. 113 (1973), and the constitutional position on abortion changed completely without a word of the text being altered. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overruled Chevron and moved the interpretation of ambiguous statutes from agencies to courts. Neither required, or could have obtained, an amendment.

That is why the appointment of a Justice is a political event of a kind India does not have: in a system where Article V is closed, the composition of the Court is the amending procedure.

A worked example

A proposal to limit the terms of members of Congress commands the support of large majorities in opinion polls.

Step one. Two thirds of both Houses must propose it. The members whose terms would be limited must vote for it, which is the practical obstacle.

Step two, alternatively. Two thirds of the State legislatures, thirty four, apply for a convention. The route has never been used and the questions in [The Convention Route] have never been answered.

Step three. Thirty eight State legislatures ratify.

And the alternative. A statute imposing term limits was held unconstitutional as applied to congressional qualifications, because the qualifications in Article I are exclusive, so the only route is Article V.

The cases

Facts. Dillon v. Gloss, 256 U.S. 368 (1921), was brought by a prisoner held under the National Prohibition Act, who argued that the Eighteenth Amendment was invalid because Congress had attached a seven-year limit to its ratification, which Article V does not mention.

Held, by Van Devanter J for the Court. The fair inference from Article V is that ratification must be within some reasonable time after the proposal; and of the power of Congress, keeping within reasonable limits, to fix a definite period, the Court entertained no doubt.

Why it matters here. It is the authority for the time limits now attached to most proposals, and it supplies half the answer to how long a proposal stays open.

Facts. Coleman v. Miller, 307 U.S. 433 (1939), concerned Kansas's ratification of the Child Labor Amendment after an earlier rejection, and after thirteen years had passed since the proposal.

Held, by Hughes CJ with a controlling concurrence of four. The efficacy of a ratification after an earlier rejection, and the question how long a proposal remains open in the absence of a limit, should be regarded as political questions pertaining to the political departments, with the ultimate authority in Congress in the exercise of its control over the promulgation of the adoption of the amendment.

Why it matters here. It is the other half of the answer, and it makes the American amending procedure largely non-justiciable, which is the sharpest contrast with India.

Distinctions

What beginners get wrong

"The President signs an amendment." He has no role in Article V. An amendment is not presented to him.

"Article V requires two thirds of the whole membership." Two thirds of those present and voting, a quorum being present.

"Three quarters means three quarters of the population." Three quarters of the States, which since 1959 means thirty eight, regardless of population.

Limits and criticism

Small States have a disproportionate veto. Thirteen States containing a small fraction of the population can block any amendment.

The equal suffrage entrenchment cannot itself be removed, except with the consent of every State affected, which makes it effectively permanent.

The closure of Article V has transferred constituent power to the Court, which is the central American constitutional criticism of the last fifty years and which Dobbs brought into sharp relief.

Quick revision

1. Proposal: two thirds of both Houses, or a convention called on the application of two thirds of the State legislatures.
2. Ratification: legislatures of three quarters of the States, or conventions in three quarters, as Congress proposes.
3. Convention ratification used once, for the Twenty First Amendment.
4. Entrenchments: the 1808 clause, now spent; and equal suffrage in the Senate without a State's consent.
5. No role for the President; no time limit in the text; nothing about rescission.
6. Dillon v. Gloss, 256 U.S. 368 (1921): a reasonable time, and Congress may fix a period.
7. Coleman v. Miller, 307 U.S. 433 (1939): political questions, with the ultimate authority in Congress.

Test yourself

1. Set out Article V. Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments, or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments; either way the amendments are valid when ratified by the legislatures of three quarters of the several States, or by conventions in three quarters, as the one or the other mode of ratification may be proposed by Congress. No amendment made before 1808 was to affect the first and fourth clauses of Article I section 9, and no State shall without its consent be deprived of its equal suffrage in the Senate.

2. What role does the President have? None. An amendment proposed under Article V is not presented to the President and he cannot veto it, which distinguishes the amending process from ordinary legislation under Article I section 7. In India, by contrast, article 368(2) requires the Bill to be presented to the President, who shall give his assent.

3. What is the only permanently entrenched provision, and why does it matter? That no State shall, without its consent, be deprived of its equal suffrage in the Senate. It matters because equal representation is the single most counter-majoritarian feature of the American system, giving Wyoming and California two senators each, and it cannot be removed by any majority however large.

4. What has been the constitutional consequence of Article V's difficulty? That constitutional change happens through judicial interpretation rather than through amendment. Nothing has been ratified since 1992, and the meaning of the Constitution has changed substantially in that period through decisions of the Supreme Court, of which Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), overruling Roe v. Wade, 410 U.S. 113 (1973), is the clearest example. In such a system the composition of the Court performs the function an amending procedure performs elsewhere.