Amendments—Congressional Proposal Clause

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution. . . .

—Robert G. Natelson

Introduction

Article V specifies the Constitution’s amendment procedure. Its symmetrical parts exemplify James Madison’s observation in Federalist No. 39 that the Constitution is partly national and partly federal (state-based). Four assemblies perform functions in the process: state conventions, state legislatures, an interstate (federal) convention, and the federal legislature (Congress). In the first of two mandatory stages, amendments can be proposed by two-thirds of both houses of Congress or at “a Convention for proposing Amendments” called upon “Application of the Legislatures of two thirds of the several States.” Before the second stage, Congress decides which assembly will vote on ratification: the state legislatures or conventions within each state. Article V requires that for an amendment to be ratified, three-fourths of either state legislatures or state conventions must vote to ratify.

Article V also limits Congress and the conventions to “proposing Amendments to this Constitution.” These provisions suggest that Article V may not be employed to propose an entirely new Constitution.¹ (See also Essay Nos. 151 and 152.)

History Before 1787

The period from 1776 to 1787 was a time of intensive state constitution-writing, and the resulting documents displayed various approaches to amendment. The 1776 constitutions of New Jersey, South Carolina, and Virginia had no amendment provisions.² However, because the first two were legislative creations, a legislative power of amendment was implicit. The South Carolina document was replaced two years later by a new state constitution that permitted legislative amendment after specified procedures were followed.³ The constitutions of Delaware and Maryland of 1776 similarly permitted legislative alteration contingent upon compliance with special procedures or super-majority votes.⁴ The Massachusetts and New Hampshire constitutions provided for a one-time review by the people of the state after a set interval had passed.⁵

Several other state constitutions created an amendment procedure that reflected the “censorial power,” which allowed people outside state government to review the laws. This procedure was based on the recommendation of Jean-Louis De Lolme, a Swiss commentator. The 1776 Pennsylvania constitution authorized the election every seven years of a council of censors, which had the power to propose amendments to be ratified by a popularly elected convention.⁶ Vermont copied this approach in its constitutions of 1777 and 1784.⁷ Georgia’s 1777 constitution permitted a majority of voters in a majority of counties to call a statewide convention to draft amendments specified by the counties.⁸

At the national level, Article XIII of the Articles of Confederation permitted amendment only by unanimous state ratification of a congressional proposal. During the Founding era, a “confederation” was defined as merely a treaty or league, so this unanimity requirement was not surprising. The resulting impossibility of obtaining amendments that almost everyone agreed were necessary promoted interest in simply replacing the Articles.

The Constitutional Convention

On May 29, 1787, Edmund Randolph presented the Virginia Plan to the Constitutional Convention. Its provision on amendment contained two components: “provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary” and “the assent of the National Legislature ought not to be required.”⁹ On June 11, the Convention agreed to the first component but reserved decision on the role of Congress, if any.¹⁰ On July 23, the delegates again agreed to the first component and submitted it to the Committee of Detail,¹¹ which was entrusted with preparing the Constitution’s first draft. The committee assigned Edmund Randolph to construct an outline for a constitution, and in that outline Randolph proposed limiting the national legislature’s role to calling an amendments convention only on the application of two-thirds of the state legislatures. The Committee’s final report presented that formula to the full convention on August 6.¹²

Gouverneur Morris of Pennsylvania suggested that Congress be permitted to call an amendments convention “whenever they please.”¹³ But on August 30, the convention unanimously approved the Committee’s proposal instead.¹⁴

On September 10, the delegates again debated the issue. Elbridge Gerry of Massachusetts moved to reconsider the amendment procedure.¹⁵ Alexander Hamilton of New York successfully suggested that Congress, along with the states, be empowered to propose amendments. James Madison of Virginia was uncertain about the makeup of a proposing convention and successfully offered language providing that, on the application of two-thirds of the states, Congress rather than a convention would draft amendments. When John Rutledge of South Carolina objected to permitting amendments that might interfere with slavery, the Convention added a provision banning interference with the slave trade before 1808.

The Committee of Style adopted Madison’s language allowing Congress to propose amendments and to designate whether ratification would be by state legislatures or state conventions.¹⁶ However, at the insistence of George Mason of Virginia, the federal proposing convention was reinserted.

The Ratification Debates

In Federalist No. 43, Madison defended the congressional proposal. He observed that the Constitution “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.” The Constitution’s opponents did not seriously question the wisdom of allowing Congress to propose amendments. Most of the discussion centered on the prospective role of a federal convention.

Subsequent Practice

All amendments that have been proposed have originated with Congress. The federal convention route has never been used. For the first 170 years of the Republic, Congress responded preemptively whenever the popular will was strong enough to make a convention likely. For example, in 1789, James Madison, as a member of the House of Representatives, introduced a proposed Bill of Rights. Fearing that an amendments convention might propose more sweeping changes, he emphasized the importance of congressional action to avoid such an eventuality.¹⁷

Several years later, Congress again responded to the popular will. The decision of the U.S. Supreme Court in Chisholm v. Georgia (1793) held that non-consenting states could be sued in federal court.¹⁸ This case caused widespread outrage. Congress promptly proposed the Eleventh Amendment, which effectively reversed the Court’s decision. (See Essay No. 189.)

By 1911, nearly two-thirds of the states had applied for a convention to propose an amendment for direct election of U.S. Senators.¹⁹ Congress responded reluctantly by proposing the Seventeenth Amendment on May 16, 1912.²⁰ (See Essay No. 203.) Similarly, after the fifth state had applied for a convention for an amendment limiting the President to two terms, Congress proposed the Twenty-Second Amendment.²¹ (See Essay No. 209.)

Judicial Precedent

In 1981, a federal court in Idaho observed that most Article V issues have been adjudicated, either directly or indirectly.²² Moreover, there has been a substantial amount of case law since then. A marked characteristic of Article V case law has been its adherence to historical practice, both during the Founding era and in subsequent years.²³

First, the courts have addressed whether Article V disputes can be resolved in the courts. In other words, are such cases justiciable? The courts have held repeatedly that they are, or at least should be, justiciable.

Second, the courts have decided whether a congressional resolution proposing an Article V amendment has to be presented to the President. Hollingsworth v. Virginia (1798) held that it does not.²⁴ Hollingsworth was the first in a series of judicial decisions ruling that when legislative assemblies act under Article V, they perform “federal functions” as independent bodies empowered directly by the Constitution rather than as federal or state legislatures.²⁵

Third, the courts have analyzed the voting rules for Congress to propose an amendment. The traditional parliamentary common law rule of decision requires a majority vote of those present as long as a quorum is present.²⁶ Article V altered the traditional rule by requiring a “two thirds” vote of each house. But Article V did not alter the rest of the formula.²⁷ The common law rules seem to apply to other actions Congress undertakes as part of the amendment process, such as deciding whether to debate a suggested amendment and choosing a mode of ratification.

Fourth, the courts have considered whether Congress must include an explicit finding of necessity in its proposals. Under the parliamentary common law rule, the answer is “no.” Accordingly, the Court also has answered “no,” despite the fact that Article V includes the phrase “whenever two thirds of both Houses shall deem it necessary.”²⁸ This is one of several judicial decisions applying the ordinary parliamentary common law to Article V procedures where the Constitution does not specify a different rule.²⁹

Fifth, the courts also have addressed whether Congress may fix a time limit within which a proposed amendment must be ratified. Dillon v. Gloss (1921) ruled that Congress may do so as “an incident of its power to designate the mode of ratification.”³⁰ However, it is difficult to see how a time limit is incidental to the bare choice of whether ratification shall be by state legislatures or state conventions. It makes more sense to consider a time limit adopted at the time of proposal as part of the proposal itself. Coleman v. Miller (1939) held that “ Congress has the power . . . to fix a reasonable limit of time for ratification in proposing an amendment.”³¹ This case suggests that the time limit is part of the proposal.

Open Questions

In 1972, Congress proposed the Equal Rights Amendment (ERA) with a seven-year ratification deadline. By 1978, several states had repealed their ratifications, and it was clear that the necessary three-fourths would not ratify the ERA within the original time frame. Congress then passed a joint resolution purporting to extend the deadline for another three years. This resolution was supported only by a simple majority.

If a deadline is adopted by a two-thirds majority of each house of Congress when an amendment is proposed, it is difficult to see how a simple majority or even a two-thirds majority could change that deadline after the fact: The deadline is part of the package weighed by state legislatures and conventions when deciding whether and when to ratify. Extending the deadline should require a new amendment. The Justice Department’s Office of Legal Counsel reached this conclusion in 2020.³² And in 2023, the D.C. Circuit Court of Appeals ruled that Congress likely has the authority “to set deadlines outside of the text of the amendment.”³³

Nevertheless, some politicians and scholars argue that states still may ratify the ERA—although even the purportedly extended deadline has long passed. On January 17, 2025, President Joe Biden stated “that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment.”³⁴

1. Robert G. Natelson, The Founders’ Origination Clause (and Implications for the Affordable Care Act), 38 Harv. J.L. & Pub. Pol. 629, 682–87 (2015). ↩︎
2. N.J. Const. of 1776; S.C. Const. of 1776; Va. Const. of 1776. ↩︎
3. S.C. Const. of 1778, art. XLIV. ↩︎
4. Del. Const. of 1776, art. X; Md. Const. of 1776, art. X . ↩︎
5. Mass. Const. of 1780, art. X; N.H. Const. of 1784, Pt, II. ↩︎
6. Pa. Const. of 1776, § 47. ↩︎
7. Vt. Const. of 1777, § 44; Vt. Const. of 1786, art. XL. ↩︎
8. Ga. Const. of 1777, art. LXIII. ↩︎
9. 1 Farrand’s 22. ↩︎
10. Id. at 203. ↩︎
11. 2 Farrand’s 87. ↩︎
12. Id. at 188. ↩︎
13. Id. at 468. ↩︎
14. Id. ↩︎
15. Id. at 557–59. ↩︎
16. Id. at 578. ↩︎
17. 1 Annals of Cong. 446 (1789). ↩︎
18. 2 U.S. 419 (1793). ↩︎
19. Natelson, supra at 682–87. ↩︎
20. George H. Haynes, The Senate of the United States: Its History and Practice 116 (1938). ↩︎
21. Article V Library, Article V Convention Application Analysis: Limit Presidential Tenure, https://perma.cc/ZJF4-JAAJ. ↩︎
22. Idaho v. Freeman, 529 F.Supp. 1107, 1126 (D. Idaho 1981), judgment vacated as moot, Carmen v. Idaho, 459 U.S. 809 (1982). ↩︎
23. Robert G. Natelson, The Law of Article V: State Initiation of Constitutional Amendments (2d ed., 2020). ↩︎
24. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798); Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned, 83 Tex. L. Rev. 1265 (2005). ↩︎
25. Robert G. Natelson, Federal Functions: Execution of Powers the Constitution Grants to Persons and Entities Outside the Federal Government, 23 U. Penn. J. Const. L. 193, 197 (2021). ↩︎
26. Oldknow v. Wainright, [K.B. 1760] 2 Burr. 1017, 97 Eng. Rep. 683. ↩︎
27. Rhode Island v. Palmer (National Prohibition Cases), 253 U.S. 350 (1920). ↩︎
28. Id. ↩︎
29. Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975). ↩︎
30. Dillon v. Gloss, 256 U.S. 368, 376 (1921). ↩︎
31. Coleman v. Miller, 307 U.S. 438, 454 (1939). ↩︎
32. Stephen A. Engel, Ass’t Att’y Gen., Off. of Legal Counsel, U.S. Dep’t of Justice, Memorandum Opinion for the General Counsel, National Archives and Records Administration (Jan. 6, 2020), https://perma.cc/RH4C-2S4N. ↩︎
33. Illinois v. Ferriero, 60 F.4th 704, 719 (D.C. Cir. 2023). ↩︎
34. Statement from President Joe Biden on the Equal Rights Amendment (Jan. 17, 2025), https://perma.cc/3Q66-DGUH. ↩︎