The First Amendment

By Robert Longley

  • Updated January 16, 2020

Amending the Constitution was never meant to be simple. Although thousands of amendments have been discussed since the original document was approved in 1788, there are now only 27 amendments in the Constitution.

Though its framers knew the Constitution would have to be amended, they also knew it should never be amended frivolously or haphazardly. Clearly, their process for amending the Constitution has succeeded in meeting that goal.

Constitutional amendments are intended to improve, correct, or otherwise revise the original document. The framers knew it would be impossible for the Constitution they were writing to address every situation that might come along.

Ratified in December 1791, the first 10 amendments—The Bill of Rights—list and vow to protect certain rights and freedoms granted to the American people and speak to the demands of the Anti-Federalists among the Founding Fathers by limiting the power of the national government.

Ratified 201 years later, in May 1992, the most recent amendment—the 27th Amendment—prohibited members of Congress from raising their own salaries

Two Methods

Article V of the Constitution itself establishes the two ways in which it may be amended:

“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.”

In simple terms, Article V prescribes that amendments may be proposed either by the U.S. Congress or by a constitutional convention when and if demanded by two-thirds of the legislatures of the states.

Method 1: Congress Proposes an Amendment

An amendment to the Constitution may be proposed by any member of the House of Representatives or the Senate and will be considered under the standard legislative process in the form of a joint resolution.

In addition, as ensured by the First Amendment, all American citizens are free to petition Congress or their state legislatures to amend the Constitution.

To be approved, the amending resolution must be passed by a two-thirds supermajority vote in both the House and the Senate.

Given no official role in the amendment process by Article V, the president of the United States is not required to sign or otherwise approve the amending resolution. Presidents, however, typically express their opinion of proposed amendments and may attempt to persuade Congress to vote for or against them.

States Ratify the Amendment

If approved by Congress, the proposed amendment is sent to the governors of all 50 states for their approval, called “ratification.” Congress will have specified one of two ways by which the states should consider ratification:

  • The governor submits the amendment to the state legislature for its consideration; or
  • The governor convenes a state ratifying convention.

If the amendment is ratified by three-fourths (currently 38) of the state legislatures or ratifying conventions, it becomes part of the Constitution.

Congress has passed six amendments that never received ratification by the states. The most recent was to give full voting rights to the District of Columbia, which expired unratified in 1985.

Resurrecting ERA?

Clearly, this method of amending the Constitution can be lengthy and time-consuming. However, the U.S. Supreme Court has stated that ratification must be completed within “some reasonable time after the proposal.”

Beginning with the 18th Amendment granting women the right to vote, it has been customary for Congress to set a maximum time period for ratification.

This is why many have felt the Equal Rights Amendment (ERA) is dead, even though it now needs only one more state to ratify it to achieve the required 38 states.

The ERA was passed by Congress in 1972, and 35 states had ratified it by its extended deadline of 1985. However, in 2017 and 2018, two more states ratified it, concerned about the constitutionality of setting those deadlines.

An effort in Virginia to become the 38th state to ratify the ERA failed by a single vote in February 2019. Pundits expected a battle to ensue in Congress over whether to accept the “late” ratifications had Virginia succeeded.

Method 2: The States Demand a Constitutional Convention

Under the second method of amending the Constitution prescribed by Article V, if two-thirds (currently 34) of the state legislatures vote to demand it, Congress is required to convene a full constitutional convention.

Just as in the Constitutional Convention of 1787, delegates from every state would attend this so-called “Article V Convention” for the purpose of proposing one or more amendments.

Though this more momentous method has never been used, the number of states voting to demand a constitutional amending convention has come close to the required two-thirds on several occasions. The mere threat of being forced to surrender its control of the constitutional amendment process to the states has often prompted Congress to preemptively propose amendments itself.

Although not specifically mentioned in the document, there are five unofficial yet legal ways of changing the Constitution used more often—and sometimes even more controversially—than the Article V amendment process. These include legislation, presidential actions, federal court rulings, actions of the political parties, and simple custom.

Can Amendments Be Repealed?

Any existing constitutional amendment can be repealed but only by the ratification of another amendment. Because repealing amendments must be proposed and ratified by one of the same two methods of regular amendments, they are very rare.

In the history of the United States, only one constitutional amendment has been repealed. In 1933, the 21st Amendment repealed the 18th Amendment—better known as “prohibition”—banning the manufacture and sale of alcohol in the United States.

Though neither has ever come close to happening, two other amendments have been the subject of repeal discussion over the years: the 16th Amendment establishing the federal income tax and the 22nd Amendment limiting the president to serving only two terms.

Most recently, the Second Amendment has come under critical scrutiny. In his opinion piece appearing in The New York Times on March 27, 2018, former Supreme Court Justice John Paul Stevens controversially called for the repeal of the Bill of Rights amendment, which guarantees “the right of the people to keep and bear Arms, shall not be infringed.”

Stevens argued that it would give more power to people’s desire to stop gun violence than the National Rifle Association.


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