All twenty‐seven amendments that have become the law of the land have been proposed by two‐thirds majorities in both houses of Congress and ratified by three‐fourths of the states. In some instances, the framers of these amendments aimed them directly at the Court; in most cases, however, the amendments have themselves fueled the justices' workload. Taken together with the high court's interpretation of them, these amendments are a barometer of the social, economic, and political change within the constitutional system.

The first ten constitutional amendments have been the most protean source of judicial interpretation. The first eight guaranteed individual liberties, and the ninth and tenth were adopted as assurances that nondelegated powers would remain with the states and the people. None of the ten amendments altered the structure of the new government, but the first eight gave recourse to the courts in cases where individuals thought their rights were being violated. Initially, the Court had little directly to do with the Bill of Rights, since its provisions were held to apply only against the national government. Indeed, in Barron v. Baltimore (1833), the justices decided as much. After the Fourteenth Amendment specified that states could not deprive any person of “due process of law,” however, the Court began increasingly to look to the provisions in the Bill of Rights as guides to the meaning of this Due Process Clause. Guarantees once applied only to the national government were gradually “absorbed” or “incorporated” into the Fourteenth Amendment and applied to the states (see Incorporation Doctrine). Thus, in Gitlow v. New York (1925), the Court ruled that freedom of speech (formerly guaranteed only by the First Amendment) might now be considered to be protected against state invasion as well. The Court has subsequently heard a myriad of state cases involving such controversial issues as the regulation of obscenity, sedition laws, advertising by attorneys (see Bar Advertising), and symbolic speech acts such as picketing, wearing arm bands, flag burning, and the like.

The nineteenth‐century Supreme Court became involved with constitutional amendments in other ways. The Eleventh Amendment was arguably less important for what it did than for the fact that it established the amending mechanism as a way of reversing judicial decisions and restricting judicial jurisdiction (see Reversals of Court Decisions by Amendment). This amendment was ratified in 1798 in reaction to Chisholm v. Georgia (1793), in which the Court, contrary to some Federalist interpretations during debates over ratification of the U.S. Constitution, but arguably in accord with the literal words of Article III, had accepted a suit instituted against Georgia for payment of a debt by a citizen of another state. Narrowly interpreted by the Marshall Court, this amendment was construed more expansively after the Civil War and was later again interpreted more restrictively.

Perhaps the most notable nineteenth‐century collision between the Court and the amending process involved the great constitutional debate over the extension of slavery into the territories. In Scott v. Sandford (1857), the Court denied congressional power to exclude slavery in such areas and further declared that blacks were not and could not become citizens of the United States. But three amendments adopted after the Civil War overturned the Court's most infamous decision. The Thirteenth Amendment prohibited involuntary servitude except as punishment for crimes. The Fourteenth Amendment declared that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens. …” Three provisions in this section extended to such citizens the “privileges or immunities” of citizenship as well as “due process” and “equal protection” of the law against state action.

The guarantees of the Fourteenth Amendment were in tension with the federal system, and a series of Court decisions demonstrated anew the complex relationship between change effected by amendment and change brought about by judicial interpretation. Cases narrowly interpreting the Fourteenth Amendment included the Slaughterhouse Cases (1873), restricting the Privileges or Immunities Clause; the Civil Rights Cases (1883), limiting protection against discrimination to cases of “state action”; and Plessy v. Ferguson (1896), sanctioning state‐mandated segregation as long as facilities were equal (see Separate but Equal Doctrine). The Privileges or Immunities Clause was damaged beyond repair; the Equal Protection Clause would later gain new life when, in Brown v. Board of Education (1954), the Court overturned Plessy and when Baker v. Carr (1962) opened the door to application of equal protection analysis to legislative apportionment (see Reapportionment Cases). Similarly, the Due Process Clause—increasingly applied at the end of the nineteenth century to the protection of industries (legally recognized as “persons”) against regulations—became the mechanism in the twentieth century by which most of the guarantees in the Bill of Rights, once applicable only to the national government, were now applied to the states as well.

The last of the three Civil War amendments, the Fifteenth Amendment, ratified in 1870, was designed to prevent citizens' voting rights from being abridged on the basis of color. The adoption of grandfather clauses, poll taxes, literacy tests, and white primaries effectively nullified this amendment well into the second half of the twentieth century. About this time, however, it came to serve as the basis of such cases as Smith v. Allwright (1944)—outlawing the all‐white primary—and others (see Vote, Right to).

The four amendments ratified from 1913 through 1920 were products of the Progressive movement (see Progressivism). The Sixteenth Amendment was the third to overturn a Supreme Court decision. Legalizing the income tax after the Court had declared in Pollock v. Farmers' Loan & Trust Co. (1895) that this tax was void, the amendment presented the opportunity both to put government programs on a solid financial footing and to redistribute income. This latter possibility, with its overtones of socialism, appears to have motivated the Pollock decision more than constitutional language that was ambiguous. Although the Seventeenth Amendment, which provided for the direct election of senators, did not stir litigation, the far more controversial Eighteenth did. Nonetheless, the justices willingly acceded to the constitutional prohibition on alcohol in the National Prohibition Cases (1920) and in U.S. v. Sprague (1931) and allowed expansion of prohibition legislation already in force during World War I. The new amendment spawned a number of important cases, including Carroll v. United States (1925) and Olmstead v. United States (1928), both related to searches and seizures (see Fourth Amendment). The only amendment ever formally repealed—by the Twenty‐First Amendment ratified in 1933 by state conventions, rather than, as all other amendments to date, by state legislatures—the Eighteenth Amendment is more frequently remembered for the widespread disobedience it spawned and the boost it gave to organized crime than for its more “noble” motives. The Nineteenth Amendment, ratified in 1920, extended voting rights to women. The amendment had been preceded by years of suffragette activity and marks America's greatest expansion of the franchise. Like the earlier Prohibition amendment, the Nineteenth Amendment was accepted in Leser v. Garnett (1922) as a legitimate exercise of the amending power.

Not all efforts in the Progressive Era to overcome Supreme Court decisions were successful. A proposed child labor amendment was both prompted by judicial decisions, like Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922), declaring national child labor laws to be unconstitutional, and mooted by a subsequent judicial reversal of this stance in United States v. Darby Lumber Co. (1941).

The Court has also figured prominently in determining the exact scope of constitutional amendments, often doing through judicial authority what the Congress refused to do in the amending process. For example, the Twenty‐fourth Amendment overturned the poll tax in federal elections, but it was the Supreme Court's decision in Harper v. Virginia State Board of Elections (1966) that abolished the tax on the state level. The Congress and the states retain significant power to broaden constitutional protections beyond what the Court is willing to do. The Twenty‐sixth Amendment extended the right to vote to eighteen‐year‐olds after the Court declared in Oregon v. Mitchell (1970) that congressional legislation by itself could only extend the vote in national elections, and not in state and local contests.

In 1992, Congress accepted the belated ratification of an amendment relating to the timing of congressional pay raises that was originally proposed as part of the Bill of Rights but that then became the Twenty‐seventh Amendment. Two other amendments that Congress proposed by the necessary majorities have failed in recent years—the Equal Rights Amendment, which would have prohibited discrimination on the basis of sex, and an amendment that would have granted congressional representation to the District of Columbia. Debate over the Equal Rights Amendment was particularly vigorous, and the amendment failed despite a questionable thirty‐nine‐month extension of the original seven‐year ratification proposed by Congress. Ironically, one argument raised against the amendment was that increasingly liberal judicial decisions such as Reed v. Reed (1971) and Frontiero v. Richardson (1973) had made it unnecessary. The decision liberalizing abortion in Roe v. Wade (1973) also raised concerns about how such an amendment might be interpreted by the Court (see Gender).

The judiciary can alter constitutional understandings through interpretation, but courts are subject to the amending check. Among proposed amendments in recent years that have been directed to modify or reverse court decisions are proposals concerning state legislative apportionment, school prayer and Bible reading, school busing, abortion, flag burning, and congressional term limits. The Eleventh, Fourteenth, Sixteenth, and Twenty‐sixth Amendments, while sometimes producing results that would have surprised their authors, show that such attempts can be successful. Although amendments serve as authoritative statements of popular will, they are, by comparison to judicial interpretations, extremely difficult to adopt; this difficulty exerts pressure on the courts to adapt constitutional interpretations to changing times. While there are obvious structural changes that can only be effected by amendment, debates on and off the bench about the proper extent of judicial interpretation demonstrate the perpetual tension and constant interplay that will always exist between formal constitutional amendment and judicially initiated changes in constitutional interpretation.

See also Constitutional Amending Process.

Bibliography

• Richard B. Bernstein and Jerome Agel, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (1993).
• David E. Kyvig, Explicit & Authentic Acts: Amending the U.S. Constitution, 1776–1995 (1996).
• John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (1994).
• John R. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002, 2d ed. (2003)

— John R. Vile

The authors of the U.S. Constitution realized that this document would have to be revised to meet new needs that would arise as times changed. George Washington expressed the inevitable need for, and value of, constitutional change in a letter to his nephew, Bushrod Washington (Nov.10, 1787):

The warmest friends and best supporters the Constitution has do not contend that it is free from imperfections….I think the People (for it is with them to Judge) can…decide with as much propriety on the alterations and amendments which are necessary [as] ourselves. I do not think we are more inspired, have more wisdom, or possess more virtue than those who will come after us.

The amendment process

George Washington, who presided at the Constitutional Convention of 1787, recognized the importance of Article 5 of the Constitution, which specifies how formal changes, or amendments, may be made. Article 5 says:

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; 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.

The usual procedure for making amendments is for two-thirds of the members of Congress to vote for the proposed amendments. Then the amendment is sent to the legislatures of the 50 states for approval. If three-fourths of the state legislatures ratify, or vote for, the proposal, it becomes an amendment to the U.S. Constitution. Of the 27 constitutional amendments, 26 of them have been made in this way. The 21st Amendment was approved by special conventions in three-fourths of the states, rather than by votes in state legislatures.

There is another method of proposing amendments to the Constitution–a method that has never been used. Congress, upon request of the states, can call for a special constitutional convention to write a proposed amendment. Article 5 states that Congress “shall call a convention for proposing amendments” whenever two-thirds of the states petition for one. This method of proposing amendments is known as an “Article 5 Convention.”

The Bill of Rights

The Constitution was first amended in 1791. Amendments 1 through 10, known as the Bill of Rights, were ratified together by the end of 1791. This Bill of Rights limits the power of the federal government in order to protect the civil liberties and rights of individuals. These rights include the freedom of speech, press, and religion; protection against unwarranted searches and seizures; and provision of due process and other rights for people accused of criminal behavior.

Amendments 11 and 12

The 11th Amendment became part of the Constitution in 1795. It was proposed and ratified in response to an unpopular Supreme Court decision, Chisholm v. Georgia (1793). The Court decided that the citizens of one state can sue another state in a federal court without the consent of the state being sued. The 11th Amendment reversed the Court's decision by barring citizens of another state or a foreign country from suing a state in a federal court without the state's consent.

Amendment 12 was ratified in 1804 to correct a defect in the procedures for electing the President and Vice President. Article 2, Section 1, of the Constitution said that Presidential electors would vote for two people for President. The person who received the most votes would be the President, provided that he also received a majority of the votes cast. The person who came in second would be the Vice President. If no one received a majority of the electoral votes, then the House of Representatives had to elect the President from among the five candidates with the most votes.

This system broke down in the election of 1800, when Thomas Jefferson and Aaron Burr received an equal number of votes. It was generally understood that Jefferson was the candidate for President and Burr the candidate for Vice President. The Constitution, however, provided only that each elector vote for two people, without specifying which vote was for the Vice Presidential candidate. When Jefferson and Burr received the same number of votes, Burr tried to take advantage of the confusion to win the Presidency. Instead of stepping aside for his partner, Jefferson, he insisted that the contest be decided by the House of Representatives, as provided by the Constitution. Jefferson was the winner in the House election, but it was clear that the Constitution had to be amended to prevent confusion of this kind from happening again. The 12th Amendment provided that electors would cast separate ballots for President and Vice President. If no one receives a majority of votes for President, the House of Representatives selects the President from the three candidates with the largest number of votes. Each state then has one vote, no matter how many representatives it has in the House. If no one receives a majority of the electoral votes for Vice President, then the Senate selects the Vice President from the two candidates with the most votes.

Civil War amendments

Amendments 13, 14, and 15 are known as the Civil War amendments. They were passed in the wake of the Union victory over the slave-holding states of the Confederacy. These three amendments were passed to protect the rights of former slaves.

The 13th Amendment, approved in 1865, prohibits slavery or involuntary servitude. The 14th Amendment, added to the Constitution in 1868, defined citizenship in such a way that state governments could not deny former slaves their rights and privileges as citizens. This amendment says that all people born in the United States are citizens, as are all individuals who are naturalized (foreign-born persons who become citizens through a legal process defined by Congress). According to Amendment 14, all citizens (natural-born and naturalized) have the same legal rights and privileges. This amendment forbids state governments from making and enforcing laws that would deprive any person of life, liberty, or property “without due process of law”; it also says that a state government may not deny to any person under its authority “the equal protection of the laws.”

Amendment 15, adopted in 1870, barred the federal and state governments from denying any citizen the right to vote on the basis of race, color, or previous enslavement.

20th-century amendments

The 16th Amendment, passed in 1913, allows the federal government to collect taxes on income earned by citizens. In 1895, the Supreme Court had ruled that a federal income tax law passed in 1894 was unconstitutional. Representatives of the people in Congress and state legislatures overruled the Supreme Court through passage and ratification of this 16th Amendment.

The 17th Amendment was also passed in 1913. It provides for the election of two senators from each state by direct vote of the eligible voters of the state. Before passage of this amendment, two senators were selected by the legislature of each state.

The 18th Amendment, approved in 1919, prohibited the production, sale, or transportation of intoxicating liquors in the United States. The 21st Amendment was passed in 1933 to repeal the 18th Amendment.

Amendments 19, 23, 24, and 26 extended and protected the voting rights of certain groups of people. The 19th Amendment, ratified in 1920, guaranteed the voting rights of women. The 23rd Amendment, adopted in 1961, gave citizens residing in the District of Columbia the right to vote in Presidential elections. The 24th Amendment, ratified in 1964, prohibited state governments from requiring people to pay a tax to qualify to vote, thereby extending the right to vote to people who could not afford to pay a poll tax. The 26th Amendment, added to the Constitution in 1971, required that neither the federal nor state governments could deny to someone 18 years of age or older the right to vote on account of age.

The 20th Amendment, passed in 1933, provided that the term of office of the President and Vice President shall end at noon, January 20, of the year following the last Presidential election. The term of office of senators and representatives shall end at noon, January 3.

The 22nd Amendment was passed in 1951 to prevent a President from serving more than two four-year terms of office. It was passed in response to the four-time election of President Franklin D. Roosevelt. Previously, Presidents had followed a custom begun by George Washington and had retired from office after serving two terms. Many people feared that a President might gain too much power if permitted to hold office for too long. The Constitution was amended to avoid this risk.

The 25th Amendment, passed in 1967, specifies how vacancies are to be filled in the office of Vice President. The President nominates a Vice President to fill a vacancy, but this choice must be approved by a majority of the members of the Senate and House of Representatives. The 25th Amendment also specifies how the Vice President can assume the duties of the President if he is incapacitated. When the President recovers, he can take charge again, but if recovery is not likely to occur, the Vice President can be approved as the new President by a two-thirds vote of both houses of Congress. The 25th Amendment allows a President to resign from office and be replaced by the Vice President. The new President has the power to appoint a new Vice President, subject to approval by a majority of the members of both houses of Congress.

The 27th Amendment, passed in 1992, holds that if members of Congress vote a pay raise for themselves, their constituents must have the opportunity, before the pay raise takes effect, to vote out of office the members who voted for it. This amendment was originally proposed in 1789, along with the amendments that became parts of the Bill of Rights, but it was rejected. In the 18th century, six states ratified the amendment, and one more state ratified it in the 19th century. Thirty-three states approved it between 1978 and May 7, 1992, when Michigan became the final state needed to ratify it.

See also Bill of Rights; Constitution, U.S.; Lame-duck sessions of Congress

Sources

• Richard B. Bernstein with Jerome Agel, Amending America : If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (1993; reprint, Lawrence: University Press of Kansas, 1995).
• David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (1996; reprint, Lawrence: University Press of Kansas, 1998).
• Maggie McComas, “Amending the Constitution”, Constitution 4, no. 2 (Spring-Summer 1992): 26–31.
• Donald A. Ritchie, The Constitution (New York: Chelsea House, 1989)

This entry contains information applicable to United States law only.

The means by which an alteration to the U.S. Constitution, whether a modification, deletion, or addition, is accomplished.

Article V of the U.S. Constitution establishes the means for amending that document according to a two-step procedure: proposal of amendments, followed by ratification. Amendments may be proposed in two ways: by a two-thirds vote of both houses of Congress, or by a special convention summoned by Congress on the petition of two-thirds (thirty-four) of the state legislatures.

In the long history of the U.S. Constitution, over five thousand amendments have been introduced in Congress. Only thirty-three of these have been formally proposed by Congress, and none have ever been proposed by a special convention.

No matter which method is used for the proposal of a constitutional amendment, Congress retains the power to decide what method will be used for ratification: approval of three-fourths (thirty-eight) of the state legislatures, or approval of three-fourths (thirty-eight) of special state conventions. Congress may also place other restrictions, such as a limited time frame, on ratification.

Of the thirty-three amendments proposed by Congress, twenty-six have been ratified. Of the amendments ratified, only one — the Twenty-first Amendment, which repealed a prohibition on alcohol — was ratified by the state convention method. The rest have been ratified by three-fourths of the state legislatures.

The process for amending the Constitution is deliberately difficult. Even when an amendment is proposed by Congress, it has taken, on average, two-and-a-half years for it to be ratified. That difficulty creates stability, with its accompanying advantages and disadvantages. The advantages lie in the fact that the Constitution's provisions are not subject to change according to the whims of a particular moment. The disadvantages inhere in the reality that the Constitution must also adapt and be relevant to a changing society. Given the difficulty of amendment, much of the burden of adapting the Constitution to a changing world has fallen on the shoulders of the Supreme Court and its powers of judicial review, which have been described as an informal method of changing the Constitution. However, constitutional amendments may in turn modify or overturn judicial opinion, as was the case with the Eleventh, Thirteenth, Fourteenth, Sixteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments.

Commentators have also pointed out that the amendment process is not a very democratic one. As the constitutional scholar Edward S. Corwin wrote, "A proposed amendment can be added to the Constitution by thirty-eight states containing considerably less than half of the population of the country, or can be defeated by thirteen states containing less than one-twentieth of the population of the country."

Brief History of Constitutional Amendments

Before the creation of the U.S. Constitution in 1787, constitutional amendments had already been instituted as part of several early state constitutions. The pioneering framers of these state constitutions recognized the need to incorporate an element of flexibility into constitutional law, and they provided for constitutional amendment through the legislature or through special conventions. However, the first national constitution of the United States, the Articles of Confederation, did not have such flexibility. Amendment of that document required a unanimous vote of Congress, nearly impossible to achieve.

The Framers of the U.S. Constitution sought to avoid the inflexibility of the Articles of Confederation. James Madison, one of the principle architects of the Constitution, argued in The Federalist papers that the new compact's amendment procedures, unlike those of the old Articles, protected "equally against that extreme facility, which would render the Constitution too mutable, and that extreme difficulty, which might perpetuate its discovered faults."

Proving the truth of Madison's contention, the first ten amendments to the Constitution were passed as a package by the first session of Congress in 1791. This group of amendments is called the Bill of Rights. The Bill of Rights fulfilled a promise that the backers of the Constitution, known as the Federalists, had made during the ratification procedure of the Constitution. It guarantees specific liberties relating to (1) rights of conscience, including the freedoms of speech, press, religion, and peaceable assembly (First Amendment); (2) rights of the accused, including freedom from "unreasonable searches and seizures" (Fourth Amendment), freedom from compulsory self-incrimination (Fifth Amendment), the "right to a speedy and public trial, by an impartial jury" and with legal counsel (Sixth Amendment), and freedom from "excessive bail" and "cruel and unusual punishments" (Eighth Amendment); and (3) rights of property, including freedom from seizure of property without "due process of law" (Fifth Amendment).

Subsequent amendments have dealt with many different issues, including the extent of federal judicial jurisdiction (Eleventh Amendment [1795]), the method of electing the president (Twelfth Amendment [1804]), the abolition of slavery (Thirteenth Amendment [1865]), legalization of the income tax (Sixteenth Amendment [1913]), granting women the right to vote (Nineteenth Amendment [1920]), presidential succession (Twenty-fifth Amendment [1967]), and the voting age (Twenty-sixth Amendment [1971]).

The Fourteenth Amendment (1868) — which holds that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person … the equal protection of the laws" — has been arguably the most important and far-reaching of all the amendments, particularly with regard to its Due Process and Equal Protection Clauses. Through the Fourteenth Amendment, most of the provisions of the Bill of Rights were eventually applied to the states.

In 1972, the Equal Rights Amendment (ERA) was formally proposed by Congress. The ERA, which would have forbidden discrimination on the basis of sex, failed to gain ratification within the seven-year deadline proposed by Congress, even after a thirty-nine-month extension through June 30, 1982.

Recent Developments

In the late twentieth century, the convention method found increasing favor as a means of proposing and ratifying constitutional amendments, with amendment efforts most often focusing on single issues such as requiring a balanced federal budget. Groups seeking to pass amendments found that working at the state level allowed them to advance amendment initiatives with less public and media scrutiny and less resulting opposition. Some constitutional scholars consider the convention method a potentially dangerous means of amending the Constitution. They fear that, even with a single-issue proposal for amendment, a "runaway" convention might expand its agenda to take in other controversial topics.

United States; specific amendments.

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