Article Five of the United States Constitution

Article V provides two methods for amending the nation's frame of government. The first method authorizes Congress, "whenever two-thirds of both houses shall deem it necessary",[lower-alpha 1] to propose constitutional amendments. The second method requires Congress, "on the application of the legislatures of two-thirds of the several states" (presently 34), to "call a convention for proposing amendments".[6]

This duality in Article V is the result of compromises made during the 1787 Constitutional Convention between two groups, one maintaining that the national legislature should have no role in the constitutional amendment process, and another contending that proposals to amend the constitution should originate in the national legislature and their ratification should be decided by state legislatures or state conventions.[7] Regarding the consensus amendment process crafted during the convention, James Madison (writing in The Federalist No. 43) declared:

It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the General and the State Governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.[8]

Each time the Article V process has been initiated since 1789, the first method for crafting and proposing amendments has been used. All 33 amendments submitted to the states for ratification originated in Congress. The second method, the convention option, a political tool which Alexander Hamilton (writing in The Federalist No. 85) argued would enable state legislatures to "erect barriers against the encroachments of the national authority", has yet to be invoked.[9]

Resolution proposing the Nineteenth Amendment

When the 1st Congress considered a series of constitutional amendments, it was suggested that the two houses first adopt a resolution indicating that they deemed amendments necessary. This procedure was not used. Instead, both the House and the Senate proceeded directly to consideration of a joint resolution, thereby implying that both bodies deemed amendments to be necessary. Also, when initially proposed by James Madison, the amendments were designed to be interwoven into the relevant sections of the original document.[8] Instead, they were approved by Congress and sent to the states for ratification as supplemental additions (codicils) appended to it. Both these precedents have been followed ever since.[10]

Once approved by Congress, the joint resolution proposing a constitutional amendment does not require presidential approval before it goes out to the states. While Article I Section 7 provides that all federal legislation must, before becoming Law, be presented to the president for his or her signature or veto, Article V provides no such requirement for constitutional amendments approved by Congress, or by a federal convention. Thus the president has no official function in the process.[lower-alpha 2][lower-alpha 3] In Hollingsworth v. Virginia (1798), the Supreme Court affirmed that it is not necessary to place constitutional amendments before the president for approval or veto.[10]

Three times in the 20th century, concerted efforts were undertaken by proponents of particular amendments to secure the number of applications necessary to summon an Article V Convention. These included conventions to consider amendments to (1) provide for the popular election of U.S. Senators; (2) permit the states to include factors other than equality of population in drawing state legislative district boundaries; and (3) to propose an amendment requiring the U.S. budget to be balanced under most circumstances. The campaign for a popularly elected Senate is frequently credited with "prodding" the Senate to join the House of Representatives in proposing what became the Seventeenth Amendment to the states in 1912, while the latter two campaigns came very close to meeting the two-thirds threshold in the 1960s and 1980s, respectively.[6][13]

Tennessee certificate of ratification of the Nineteenth Amendment. With this ratification, the amendment became valid as a part of the Constitution.

After being officially proposed, either by Congress or a national convention of the states, a constitutional amendment must then be ratified by three-fourths (38 out of 50) of the states. Congress is authorized to choose whether a proposed amendment is sent to the state legislatures or to state ratifying conventions for ratification. Amendments ratified by the states under either procedure are indistinguishable and have equal validity as part of the Constitution. Of the 33 amendments submitted to the states for ratification, the state convention method has been used for only one, the Twenty-first Amendment.[6] In United States v. Sprague (1931), the Supreme Court affirmed the authority of Congress to decide which mode of ratification will be used for each individual constitutional amendment.[14] The Court had earlier, in Hawke v. Smith (1920), upheld the Ohio General Assembly's ratification of the Eighteenth Amendment—which Congress had sent to the state legislatures for ratification—after Ohio voters successfully vetoed that approval through a popular referendum, ruling that a provision in the Ohio Constitution reserving to the state's voters the right to challenge and overturn its legislature's ratification of federal constitutional amendments was unconstitutional.[15]

An amendment becomes an operative part of the Constitution when it is ratified by the necessary number of states, rather than on the later date when its ratification is certified.[16] No further action by Congress or anyone is required. On three occasions, Congress has, after being informed that an amendment has reached the ratification threshold, adopted a resolution declaring the process successfully completed.[lower-alpha 4][17] Such actions, while perhaps important for political reasons, are, constitutionally speaking, unnecessary.

Presently, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S. Code § 106b. The Archivist officially notifies the states, by a registered letter to each state's Governor, that an amendment has been proposed.[18] Each Governor then formally submits the amendment to their state's legislature (or ratifying convention). When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. Upon receiving the necessary number of state ratifications, it is the duty of the Archivist to issue a certificate proclaiming a particular amendment duly ratified and part of the Constitution.[lower-alpha 5] The amendment and its certificate of ratification are then published in the Federal Register and United States Statutes at Large. This serves as official notice to Congress and to the nation that the ratification process has been successfully completed.[1]

The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states.[lower-alpha 6] The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.[18]

In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times.[21] The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment. Based upon this precedent, the Archivist of the United States, on May 7, 1992, proclaimed the Twenty-seventh Amendment as having been ratified when it surpassed the "three fourths of the several states" plateau for becoming a part of the Constitution. It had been submitted to the states for ratification—without a ratification deadline—on September 25, 1789, an unprecedented time period of 202 years, 7 months and 12 days.[18]

Whether once it has prescribed a ratification period Congress may extend the period without necessitating action by already-ratified States embroiled Congress, the states, and the courts in argument with respect to the proposed Equal Rights Amendment (Sent to the states on March 22, 1972, with a seven-year ratification time limit attached). In 1978 Congress, by simple majority vote in both houses, extended the original deadline by 3 years, 3 months and 8 days (through June 30, 1982).

The amendment's proponents argued that the fixing of a time limit and the extending of it were powers committed exclusively to Congress under the political question doctrine and that in any event Congress had power to extend. It was argued that inasmuch as the fixing of a reasonable time was within Congress' power and that Congress could fix the time either in advance or at some later point, based upon its evaluation of the social and other bases of the necessities of the amendment, Congress did not violate the Constitution when, once having fixed the time, it subsequently extended the time. Proponents recognized that if the time limit was fixed in the text of the amendment Congress could not alter it because the time limit as well as the substantive provisions of the proposal had been subject to ratification by a number of States, making it unalterable by Congress except through the amending process again. Opponents argued that Congress, having by a two-thirds vote sent the amendment and its authorizing resolution to the states, had put the matter beyond changing by passage of a simple resolution, that states had either acted upon the entire package or at least that they had or could have acted affirmatively upon the promise of Congress that if the amendment had not been ratified within the prescribed period it would expire and their assent would not be compelled for longer than they had intended.[21]

In 1981, the United States District Court for the District of Idaho, however, found that Congress did not have the authority to extend the deadline, even when only contained within the proposing joint resolution's resolving clause.[22] The Supreme Court had decided to take up the case, bypassing the Court of Appeals,[23] but before they could hear the case, the extended period granted by Congress had been exhausted without the necessary number of states, thus rendering the case moot.[24]