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The Amendment Process

There are essentially two ways spelled out in the Constitution for how to propose an amendment. One has never been used.

The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd).

The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.

Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by simple majority.

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Comment by verndewd on March 13, 2009 at 5:05pm: “Beware the leader who bangs the drums of war in order to whip the citizenry into a patriotic fervor, for patriotism is indeed a double-edged sword. It both emboldens the blood, just as it narrows the mind. And when the drums of war have reached a fever pitch and the blood boils with hate and the mind has closed, the leader will have no need in seizing the rights of the citizenry. Rather, the citizenry, infused with fear and blinded by patriotism, will offer up all of their rights unto the leader and gladly so. How do I know? For this is what I have done. And I am Caesar.”

— Julius Caesar

“Today, Americans would be outraged if U.N. troops entered Los Angeles to restore order. Tomorrow, they will be grateful. This is especially true, if they were told there was an outside threat from beyond – whether real or promulgated – that threatened our very existence. It is then that all the peoples of the world will pledge with world leaders to deliver them from this evil. The one thing that every man fears is the unknown. When presented with this scenario, individual rights will be willingly relinquished with the guarantee of their well-being, granted to them by their world government.”

— Henry Kissinger, at the Bilderberg Conference in Evians, France, 1991

“Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we.”

— George W. Bush, allegedly misspeaking, at a bill-signing ceremony, August 5, 2004

Comment by verndewd on March 13, 2009 at 5:04pm: The Constitution, then, spells out four paths for an amendment:

* Proposal by convention of states, ratification by state conventions (never used)
* Proposal by convention of states, ratification by state legislatures (never used)
* Proposal by Congress, ratification by state conventions (used once)
* Proposal by Congress, ratification by state legislatures (used all other times)

It is interesting to note that at no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 US 378 [1798]):

The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.

"Informal Amendment"

Another way the Constitution's meaning is changed is often referred to as "informal amendment." This phrase is a misnomer, because there is no way to informally amend the Constitution, only the formal way. However, the meaning of the Constitution, or the interpretation, can change over time.

There are two main ways that the interpretation of the Constitution changes, and hence its meaning. The first is simply that circumstances can change. One prime example is the extension of the vote. In the times of the Constitutional Convention, the vote was often granted only to monied land holders. Over time, this changed and the vote was extended to more and more groups. Finally, the vote was extended to all males, then all persons 21 and older, and then to all persons 18 and older. The informal status quo became law, a part of the Constitution, because that was the direction the culture was headed. Another example is the political process that has evolved in the United States: political parties, and their trappings (such as primaries and conventions) are not mentioned or contemplated in the Constitution, but they are fundamental to our political system.

The second major way the meaning of the Constitution changes is through the judiciary. As the ultimate arbiter of how the Constitution is interpreted, the judiciary wields more actual power than the Constitution alludes to. For example, before the Privacy Cases, it was perfectly constitutional for a state to forbid married couples from using contraception; for a state to forbid blacks and whites to marry; to abolish abortion. Because of judicial changes in the interpretation of the Constitution, the nation's outlook on these issues changed.

In neither of these cases was the Constitution changed. Rather, the way we looked at the Constitution changed, and these changes had a far-reaching effect. These changes in meaning are significant because they can happen by a simple judge's ruling and they are not a part of the Constitution and so they can be changed later.

Popular Amendment

One other way of amendment is also not mentioned in the Constitution, and, because it has never been used, is lost on many students of the Constitution. Framer James Wilson, however, endorsed popular amendment, and the topic is examined at some length in Akhil Reed Amar's book, The Constitution: A Biography.

The notion of popular amendment comes from the conceptual framework of the Constitution. Its power derives from the people; it was adopted by the people; it functions at the behest of and for the benefit of the people. Given all this, if the people, as a whole, somehow demanded a change to the Constitution, should not the people be allowed to make such a change? As Wilson noted in 1787, "... the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them."

It makes sense - if the people demand a change, it should be made. The change may not be the will of the Congress, nor of the