Article V Explained, and the Amendment That Took More Than 200 Years

Sometime in the early 1980s, a college student in Texas wrote a term paper about an amendment to the Constitution that most people thought was dead. It had been proposed in 1789. It had sat in the ratification pile for the better part of two centuries, a forgotten item in a drawer. The student argued that it could still be ratified, because Congress had never put a deadline on it. His grade, the story goes, was a C. Then he started writing letters to state legislators. In May of 1992, the amendment became the 27th Amendment to the Constitution. The paper got an A years later, or so the story goes.

I tell that story because it shows two things at once. Amending the Constitution is unbelievably hard: that amendment took 202 years. And it is not impossible: one stubborn person with a stamp and a legislative directory can move a mountain if the rules are on his side. Whether you want to pass a balanced budget amendment, term limits, or just win an argument at the family table about how the Constitution changes, you need to know how Article V works. It is one of the shortest parts of the document and one of the most misunderstood.

What Article V says

Article V is a single long sentence. In plain English it sets out how an amendment gets proposed and how it gets ratified. It offers two ways to do each.

Proposal. An amendment may be proposed in one of two ways:

1. By Congress. Two-thirds of both the House and the Senate vote to propose it.
2. By a convention. Two-thirds of the state legislatures apply to Congress, and Congress then "shall call a Convention for proposing Amendments."

Ratification. Once proposed, an amendment becomes part of the Constitution when it is ratified in one of two ways, and Congress picks which:

1. By the state legislatures, three-fourths of them.
2. By state conventions, in three-fourths of the states.

Mix and match and you get four possible roads, and Americans have used exactly one and a half of them. Every amendment has been proposed by Congress. Twenty-six of the twenty-seven were ratified by state legislatures. One, and only one, was ratified by state conventions. The convention route for proposing amendments has never been used.

The arithmetic

Numbers make Article V real, so let me do them out loud with fifty states and a full Congress.

• Senate: two-thirds of 100 is 66.67, so 67 senators.
• House: two-thirds of 435 is 290 members.
• State legislatures to call a convention: two-thirds of 50 is 33.33, so 34 states.
• States to ratify: three-fourths of 50 is 37.5, so 38 states.

Two points on those numbers. First, the two-thirds requirement technically applies to the members present and voting, so the exact number can vary with absences. The numbers above assume everyone shows up. Second, look at the ratification number. Thirty-eight states is a landslide. Thirteen states, a quarter of the total plus one, can block anything. Put another way, the smallest group that can stop an amendment is 13 states, and the thirteen smallest states hold only a small slice of the American people. That is by design. The founders wanted changes to require something close to national consensus, and they got it.

What Article V does not say

A few features surprise people.

The president has no role. There is no signature, no veto. In 1798, in Hollingsworth v. Virginia, the Supreme Court held that the president's approval is not part of the amendment process. A president can cheer or complain, but cannot block.

There is no deadline in the text. Congress has since 1917 often put a time limit, usually seven years, in the proposing resolution or in the preamble. The Supreme Court in Dillon v. Gloss (1921) held that Congress can set a reasonable limit. The 27th Amendment had no such limit, which is why a proposal from 1789 could still be ratified in 1992.

Two things cannot be amended away. Article V had a protected clause on the slave trade that expired in 1808. And it still says that no state, without its consent, can be deprived of its equal suffrage in the Senate. That is a lock on the structure of the Senate, and it shows how seriously the founders took the bargain between large and small states.

Congress picks the ratification mode. When Congress proposes an amendment, it chooses whether the states will vote through legislatures or conventions. The choice is not up to the states.

The 27 amendments in a minute

The first ten, the Bill of Rights, were ratified in 1791. They came from a package of twelve proposed in 1789. The second of the twelve, the one about congressional pay, was not ratified at the time, and is the one the Texas student revived. The first of the twelve, which dealt with the size of House districts, never became law. Between 1791 and 1804 came the 11th and 12th. The three Civil War amendments followed: the 13th in 1865, the 14th in 1868 and the 15th in 1870. Then the Progressive Era brought the 16th through the 19th, which covered the income tax, popular election of senators, Prohibition and women's suffrage. The 20th through the 26th handled things like presidential terms and succession, the repeal of Prohibition, the two-term limit, the District of Columbia's electoral votes, the poll tax and the voting age of 18. The 27th, as noted, took 202 years.

If you would like to read the story of one of those, see The Conservative Case Against the 17th Amendment, Weighed Honestly on the 17th. The fight over it is a good example of why amendments are rare and slow.

The one that used conventions: the 21st

Prohibition began with the 18th Amendment, ratified in 1919, which banned the manufacture, sale and transport of intoxicating liquors. By the early 1930s, it had become unpopular and associated with organized crime. The 21st Amendment repealed it, and it was ratified on December 5, 1933.

Congress chose state conventions for the 21st, and there is a reason for it. Supporters of repeal believed that state legislatures, many of which were friendly to the temperance movement and shaped by rural districts, might refuse to vote themselves out of Prohibition. Conventions of delegates elected specifically on the question of repeal would reflect the voters more directly. It worked. It remains the only amendment ever ratified that way, and a handy lesson in how to use the process's flexibility.

The 27th: 1789 to 1992

Now to the amendment in the title. James Madison drafted the proposals that became the Bill of Rights. One of them said that no law varying the pay of senators and representatives could take effect until an election of representatives had intervened. In other words, if Congress voted itself a raise, the raise would not start until the voters had a chance to react. The text of the 27th, as ratified, says exactly that: no law varying the compensation for the services of the senators and representatives shall take effect until an election of representatives shall have intervened.

The proposal went out to the states with the rest in 1789. A handful of states ratified in the first few years. Then it stalled, and for generations it was forgotten. In 1982 a University of Texas student named Gregory Watson, working from the observation that the proposal had no expiration date, began a campaign to ratify it state by state. By May 1992, the necessary 38 states had approved. Congress treated it as part of the Constitution.

Why does this matter to a conservative? Because it was a grassroots win for a conservative idea: keep the people who spend the money from raising their own pay without a voter check. It was also a win by the book. No one cheated. Someone read Article V, saw an open door and walked through it.

The graveyard: amendments that passed Congress and still died

Getting through Congress is only the first mountain. Thousands of amendments have been introduced in Congress over the years, and only a tiny fraction ever reach a floor vote. Of those that did clear both chambers and went to the states, 27 were ratified and six were not. That tells you something. Even after a two-thirds vote in Congress, a proposal can lose in the states.

Three examples are worth knowing. The Child Labor Amendment was sent to the states in 1924 and never reached three-fourths, in part because the issue was later handled by ordinary legislation and Supreme Court decisions. The Equal Rights Amendment went to the states in 1972 with a seven-year deadline, Congress extended the deadline to 1982, and it still fell short of the 38 states it needed. And a 1978 proposal to give the District of Columbia voting representation in Congress expired in 1985 without enough states. Whatever you think of those three, notice the pattern: each had energy and a majority at some point, and none had the broad, durable agreement across regions that Article V demands.

That is a feature, not a bug, and it is the best conservative answer to people who complain that the Constitution is too hard to change. A rule that bends whenever a majority is angry is a rule that does not protect anyone from a majority. The founders wanted the document to change slowly, when the country was really of one mind. I make a related argument, from the other direction, in The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It: if the formal door is hard to open, there will always be a temptation to climb through a window. The right response is to resist the window and keep working on the door.

For a practical test of whether a federal law is on firm ground before anyone talks about amending anything, you can use A Five-Question Constitutional Test You Can Run on Any Federal Law.

The balanced budget amendment that came up short

Now to the debate over the one amendment conservatives have tried hardest to pass in modern times. A balanced budget amendment would require Congress to match spending to revenue except in specific circumstances such as war or by a supermajority vote. Republicans made it a plank of the 1994 Contract with America, and the House of Representatives passed a version on January 26, 1995, with more than the necessary two-thirds.

Then it went to the Senate, where it needed 67 votes. In March 1995 the vote fell short. The recorded tally was 65 to 35, after the majority leader changed his vote to preserve the right to bring it back, and the count had stood at 66 before that: one vote short of 67. Two years later, in March 1997, the Senate tried again and the measure fell one vote short a second time, at 66 to 34. Had a single senator switched, the amendment would have gone to the states. Whether it would have been ratified by 38 of them is another question, but the ratification fight never happened, because the first gate shut.

Here is the strongest objection, and I want to state it fairly. Critics argue that a balanced budget amendment would tie the government's hands in a recession, when deficit spending can cushion a downturn, or in a war, when spending must rise quickly. They also worry that a hard rule would be enforced by courts or evaded by accounting tricks. Those are real concerns, and the amendment's drafters wrote exceptions for them. My reply is a plain one: the federal budget is running deficits in good times and bad, a family that did that would be in the hands of a lender, and the discipline has to come from somewhere. If Congress will not supply it by statute, a rule in the Constitution is a reasonable thing to ask for. I discuss the deficit fight at more length in the posts on Congress's spending and in Nixon Impounded the Money, Congress Fought Back, and the 1974 Law Still Rules.

The convention route and why people talk about it

If Congress will not propose a balanced budget amendment, the other road is an Article V convention. The Constitution says Congress "shall call" one when two-thirds of the state legislatures, 34 of them, apply. No convention has been called under this clause, though a long list of state legislatures have passed applications on topics from a balanced budget to term limits. The legal questions are unsettled: must the applications be on the same subject? Can a convention be limited to a single topic? Who sets the rules and chooses delegates? The text does not say.

The conservative case for a convention is that it lets the states bypass a Congress that will never limit itself. The caution is that no one can be certain how it would operate, and any proposal it produced would still need 38 states to ratify. Many conservatives, including thoughtful ones, are on both sides of this, and I do not claim the question is easy.

The bottom line

• Four roads, one and a half used. Congress proposes, the states ratify. Remember the numbers: 67 senators, 290 House members, 34 states to call a convention and 38 to ratify.
• Hard on purpose. Thirteen states can stop any amendment. If you want one to pass, build a coalition that crosses party lines and regions.
• The 27th shows what patience does. One citizen read Article V and wrote letters. If your state legislature is asked to ratify or to apply for anything, find out how to contact your representative and ask.
• Check the record. Congress.gov lists every proposed amendment and its status, and your state legislature's website shows what it has acted on.
• Do not wait for a miracle. The balanced budget amendment fell one vote short at its closest. The lesson is to elect senators who will vote for what they promise, then hold them to it.