Engage: Designed to Be Difficult
The Constitution has been amended only 27 times in 235+ years. Thousands of amendments have been proposed; only a tiny fraction succeeded. By comparison, state constitutions are amended constantly—some have hundreds of amendments.
This wasn’t an accident. The framers made the amendment process difficult on purpose. They wanted the Constitution to be stable, not subject to every passing passion. But they also wanted it changeable—unlike the Articles of Confederation, which required unanimous consent and proved impossible to amend.
Article V creates a process that’s demanding but not impossible—threading the needle between flexibility and stability.
Explore: Two Steps, Multiple Paths
Article V requires two steps: Proposal and Ratification. Each step has two possible paths:
Step 1 – Proposal (two methods):
- Congressional Proposal: 2/3 vote in both House and Senate
- Used for all 27 existing amendments
- Congress proposes, doesn’t ratify
- Constitutional Convention: Called by Congress when 2/3 of state legislatures request it
- Never used
- Many states have applied; never reached 2/3 threshold
- Raises questions: What would convention’s scope be? Could it rewrite the entire Constitution?
Step 2 – Ratification (two methods):
- State Legislatures: 3/4 of state legislatures must approve
- Used for 26 of 27 amendments
- Currently means 38 of 50 states
- State Conventions: 3/4 of special state conventions must approve
- Used only for 21st Amendment (repealing Prohibition)
- Bypasses state legislatures when they might oppose popular sentiment
Important: The President has no role in amendments. This is purely a congressional and state process.
Explain: Why So Difficult?
The framers studied failed republics. They saw two dangers:
Too Easy to Amend: Constitution becomes unstable, subject to temporary passions, manipulated by factions, loses authority.
Too Hard to Amend: Constitution becomes obsolete, can’t adapt to changing circumstances, eventually collapses or is overthrown.
The Articles of Confederation required unanimous state consent for amendments. Result: couldn’t be amended at all. When change was needed, the entire system was replaced.
The Constitution requires substantial supermajorities (2/3 and 3/4) but not unanimity. This ensures amendments have broad, lasting support across different regions and political divisions.
James Madison in Federalist No. 43 explained: The process “guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”
Elaborate: The Amendments That Succeeded
The Bill of Rights (1-10, 1791):
Proposed by the First Congress to fulfill ratification promises. All ten were proposed and ratified together.
Post-Civil War Amendments (13-15, 1865-1870):
- 13th: Abolished slavery
- 14th: Citizenship, equal protection, due process
- 15th: Voting rights regardless of race
Required as part of Southern states’ re-admission to Union after Civil War.
Progressive Era Amendments (16-19, 1909-1920):
- 16th: Federal income tax
- 17th: Direct election of senators (previously chosen by state legislatures)
- 18th: Prohibition of alcohol
- 19th: Women’s suffrage
Era of reform; amendments reflected changing social values.
Modern Amendments (20-27, 1933-1992):
- 20th: Changed presidential inauguration date
- 21st: Repealed Prohibition (only amendment to repeal another)
- 22nd: Presidential term limits (response to FDR’s four terms)
- 23rd: DC electoral votes
- 24th: Banned poll taxes
- 25th: Presidential succession procedures
- 26th: Voting age lowered to 18 (response to Vietnam draft)
- 27th: Congressional pay raises (proposed 1789, ratified 1992!)
Evaluate: Amendments That Failed
Thousands of amendments have been proposed. Most die in committee. Some came close:
Equal Rights Amendment (1972):
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Passed Congress easily. Ratified by 35 states—just 3 short of the 38 needed. Deadline expired in 1982. Some states ratified afterward, leading to ongoing legal debate about whether it’s still viable.
Balanced Budget Amendment:
Would require federal government to balance its budget except in emergencies. Proposed multiple times; never passed Congress.
District of Columbia Voting Rights Amendment (1978):
Would give DC full congressional representation. Passed Congress; only 16 states ratified. Expired in 1985.
Flag Desecration Amendment:
Would allow Congress to ban flag burning. Came within one vote of passing Senate multiple times. Raises First Amendment concerns.
Failed Historical Proposals:
- Eliminating Electoral College (proposed many times)
- Limiting federal spending or taxation
- School prayer
- Prohibition on same-sex marriage
- Balanced budget
- Campaign finance reform
- Line-item veto for President
Evaluate: Too Hard or Just Right?
Arguments the Process Is Too Difficult:
- Constitution enshrines outdated provisions (Electoral College, Senate representation)
- Small states representing minority of population can block needed changes
- Modern problems (climate change, digital privacy, campaign finance) need constitutional solutions
- Other democracies amend their constitutions more easily and survive
Arguments the Process Is Appropriately Difficult:
- Stability is valuable; rule of law requires enduring framework
- Difficult amendments ensure broad consensus
- Easy amendments would lead to constitutional chaos
- Other countries’ constitutions are weaker precisely because they’re easily changed
- Many issues can be addressed through legislation or interpretation, not amendment
Alternative to Amendment—Constitutional Interpretation:
Because formal amendment is so difficult, the Constitution evolves primarily through interpretation:
- Judicial decisions expand or contract constitutional meaning
- Congressional statutes fill in details
- Executive practices establish precedents
- Social movements change how rights are understood
Is this legitimate? Or does it bypass the amendment process the framers carefully designed?
The Unresolved Tension:
The Constitution is simultaneously:
- The supreme law—above normal politics
- A living document—evolving with society
How do we balance these? Too much change undermines stability. Too little change makes the Constitution irrelevant. Article V tries to thread this needle, but reasonable people disagree on whether it succeeds.
Key Vocabulary
- Amendment: Formal change to the Constitution
- Proposal: First step—amendment suggested (requires 2/3)
- Ratification: Second step—amendment approved (requires 3/4)
- Article V: Constitutional provision establishing amendment process
- Supermajority: More than simple majority (50%+1); amendments require 2/3 and 3/4
Think About It
If you could make the amendment process easier (simple majority? 60%?) or harder (unanimous consent?), would you? What would be the consequences of your choice?
Additional Resources
Primary Source: Read Article V of the Constitution:
https://www.archives.gov/founding-docs/constitution-transcript
Notice the careful balance: multiple paths to proposal and ratification, but all requiring supermajorities.
Read Federalist No. 43 by James Madison explaining Article V:
https://avalon.law.yale.edu/18th_century/fed43.asp
Madison addresses the Anti-Federalist criticism that the amendment process is too difficult, arguing it appropriately balances “that extreme facility… and that extreme difficulty.”
See the full list of proposed constitutional amendments:
https://www.congress.gov/search?q=%7B%22source%22%3A%22legislation%22%2C%22search%22%3A%22proposing+an+amendment%22%7D
Thousands have been proposed. The vast majority never leave committee.
Tomorrow: We’ll explore the major amendments after the Bill of Rights—how the Constitution has evolved through crisis and reform.