Article 5 — Historical Background On Amending The Constitution

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Article V:

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.

Prior to the Constitutional Convention of 1787, the people of the United States experienced difficulties in attempting to amend the Nation’s first charter, the Articles of Confederation.[1](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn1art5 " See, e.g., 2 The Records of the Federal Convention of 1787, at 558 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Madison’s notes, Sept. 10, 1787) (statement of Alexander Hamilton). ") Under the Articles, Congress and all of the states had to approve amendments before they would become effective.[2](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn2art5 " Articles of Confederation and Perpetual Union art. XIII ( “And the Articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” ). ") Perhaps unsurprisingly, attempts to amend the Articles to address perceived shortcomings, such as Congress’s lack of authority to raise revenues by levying import duties, were unsuccessful.[3](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn3art5 " Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 Farrand’s Records, supra note 1, at 120–21 ( “[I]t is to this unanimous consent, the depressed situation of the Union is undoubtedly owing. Had the measures recommended by Congress and assented to, some of them by eleven and others by twelve of the States, been carried into execution, how different would have been the complexion of Public Affairs? To this weak, this absurd part of the Government, may all our distresses be fairly attributed.” ). See also 1 Constitutional Documents and Records, 1776–1787, at 140–41 (Merrill Jensen ed., 1976) (discussing a proposal to grant Congress the power to collect import duties). ") Nonetheless, several state constitutions in existence at the time of the Founding provided for amendments.[4](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn4art5 " See, e.g., Mass Const. of 1780, pt. 2, ch. 6, art. X (setting forth procedures for amending the Massachusetts Constitution that included two-thirds of eligible voters calling a convention for that purpose); Md. Const. of 1776, The Constitution, or Form of Government, cl. LIX (authorizing the state legislature to amend the Constitution by an affirmative vote before and after a new election, but requiring a higher vote threshold for approval of amendments affecting the government of the eastern shore). ") These early provisions for amendments in the Articles and state charters informed the Founder’s deliberations at the Convention.

During early debates over the Federal Constitution, the delegates agreed to consider language that would permit the states to amend the Nation’s charter without Congress’s approval.[5](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn5art5 " 1 Farrand’s Records, supra note 1, at 22 (Madison’s notes, May 29, 1787) ( “Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.” ). ") Proponents of including specific procedures for amending the Constitution maintained that such a mechanism would provide stability to the new government.[6](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn6art5 " 1 Farrand’s Records, supra note 1, at 121–22, 202–03 (Madison’s notes, June 5, 11, 1787). ") For example, George Mason stated it was “better to provide for [amendments] in an easy, regular and Constitutional way than to trust [alterations] to chance and violence.” [7](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn7art5 " 1 Farrand’s Records, supra note 1, at 121–22, 202–03 (Madison’s notes, June 5, 11, 1787). ") He argued that states should have the power to amend the Constitution without Congress’s approval because the national legislature would inevitably abuse its power and ignore states’ calls for necessary changes.[8](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn8art5 " 1 Farrand’s Records, supra note 1, at 121–22, 202–03 (Madison’s notes, June 5, 11, 1787). ") Other delegates viewed the inclusion of a provision for amending the Constitution as unnecessary or improper.[9](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn9art5 " 1 Farrand’s Records, supra note 1, at 121–22, 202–03 (Madison’s notes, June 5, 11, 1787). ")

The delegates did not consider the draft Article V language until a month before the end of the Federal Convention.[10](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn10art5 " 2 Farrand’s Records, supra note 1, at 461 (Journal, Aug. 30, 1787). ") At that time, the draft text required Congress to call a convention for proposing amendments to the Constitution upon the request of two-thirds of the states.[11](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn11art5 " 2 Farrand’s Records, supra note 1, at 557 (Madison’s notes, Sept. 10, 1787). ") Some delegates believed that this text made amendments too difficult and advocated for Congress to play a greater role in proposing amendments. For instance, Alexander Hamilton, who noted the difficulties in amending the Articles of Confederation,[12](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn12art5 " 2 Farrand’s Records, supra note 1, at 558. As noted, the Articles of Confederation required Congress and all of the states to approve an amendment before it would become effective. Articles of Confederation art. XIII ( “And the Articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” ). ") suggested that Congress, acting on its own initiative, should have the power to call a convention to propose amendments.[13](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn13art5 " 2 Farrand’s Records, supra note 1, at 558 (Madison’s notes, Sept. 10, 1787). In contrast to Hamilton’s views, some delegates expressed concerns that the draft Article V language made the amendment process too easy. For instance, Elbridge Gerry raised concerns that a majority of states at a convention could ratify amendments that would subvert state constitutions. 2 Farrand’s Records, supra note 1, at 557–58. See also Douglas Linder, What in the Constitution Cannot Be Amended?, 23 Ariz. L. Rev. 717, 720 (1981). ") In his view, Congress would perceive the need for amendments before the states.[14](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn14art5 " 2 Farrand’s Records, supra note 1, at 558 (Madison’s notes, Sept. 10, 1787). ") Roger Sherman took Hamilton’s proposal a step further, moving that Congress itself be authorized to propose amendments that would become part of the Constitution upon ratification by all of the states.[15](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn15art5 " 2 Farrand’s Records, supra note 1, at 558 (Madison’s notes, Sept. 10, 1787). ") James Wilson moved to modify Sherman’s proposal to require three-fourths of the states for ratification of an amendment.[16](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn16art5 " 2 Farrand’s Records, supra note 1, at 559. ") James Madison offered substitute language that permitted two-thirds of both houses of Congress to propose amendments, and required Congress to propose an amendment after two-thirds of the states had applied for one.[17](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn17art5 " 2 Farrand’s Records, supra note 1, at 559. ") This language passed unanimously.[18](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn18art5 " 2 Farrand’s Records, supra note 1, at 559. ")

The delegates also debated whether Article V should prohibit amendments on certain subjects. Some delegates from the southern states, including John Rutledge of South Carolina, opposed allowing amendments to existing provisions of the draft Constitution that already limited Congress’s power to (1) restrict the importation of slaves, or (2) levy taxes on land or slaves.[19](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn19art5 " 2 Farrand’s Records, supra note 1, at 559. ") Fervent disagreement between northern and southern states over slavery prompted inclusion of these provisions.[20](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn20art5 " Linder, supra note 13, at 721. Some of the delegates were apparently concerned that amendments removing the limitation on Congress’s power to levy direct taxes without apportionment could result in federal taxes on slaves, who were considered property at the time. The Federalist No. 43 (James Madison) (stating that both exceptions in the first sentence on unamendable subjects “must have been admitted on the same considerations which produced the privilege defended by it” ). ") To preserve the compromise on the issue of slavery, the delegates added a sentence to the draft of Article V prohibiting amendments on these subjects before 1808.[21](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn21art5 " 2 Farrand’s Records, supra note 1, at 559 (Madison’s notes, Sept. 10, 1787). ") At a later meeting of the convention, Roger Sherman and Gouverneur Morris proposed that no state should, without its consent, be deprived of equal suffrage in the Senate.[22](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn22art5 " 2 Farrand’s Records, supra note 1, at 630–31 (Madison’s notes, Sept. 15, 1787). ") This proposal, which sought to safeguard state sovereignty and the delegates’ delicate compromise on the structure of the national legislature,[23](https://www.law.cornell.edu/constitution-conan/article-5/historical-background-on-amending-the-constitution#fn23art5 " Linder, supra note 13, at 722. ") was agreed to without debate and appended t