Attempts to Amend the Federal Amendment Clause
Peter Suber, Paradox of Self-Amendment Table of Contents
- A. Recent proposals
- B. An historical proposal passed by Congress
- C. Historical proposals not passed by Congress
- D. The Articles of Confederation
- E. Selected suggestions by writers
The amendment clause of the federal constitution is Article V. It has never been amended either by authorizing its own modification or by authorizing its replacement in a constitutional convention. Portions of the clause were under the control of sunset clauses inserted by the framers. The amending power was enhanced when the clauses expired in 1808, in effect amending the amending clause by augmenting its power or by revoking limitations on its power (see Section 14). Nothing in U.S. constitutional history comes closer to self-amendment at the federal level than the expiration of these sunset clauses and the limitations on the amending power they represented.
Recently Article V has been seen as an obstacle to conservatives who foresee difficulties in passing amendments to prohibit abortion and require a balanced budget, and by liberals who lost the struggle to ratify the Equal Rights Amendment. Hence proposed amendments to Article V have increased recently, though mostly by conservatives.
Another period of frequent proposals to amend Article V began after the ratification of the Eighteenth Amendment (Prohibition) in 1919. The adoption of the Nineteenth Amendment (Women's Suffrage) in 1920 intensified the discussion. Both amendments were much criticized, and challenged in court, for violating supposed implied limitations on the content or substance of amendments (see Section 8). The validity of the Eighteenth Amendment was upheld in the face of attack by Hawke v. Smith No. 1, 253 U.S. 221 (1920), National Prohibition Cases, 253 U.S. 350 (1920), Dillon v. Gloss, 256 U.S. 368 (1921), U.S. v. Sprague, 282 U.S. 716 (1931), and Coleman v. Miller, 307 U.S. 433 (1939). The validity of the Nineteenth Amendment was affirmed in Fairchild v. Hughes, 258 U.S. 126 (1922), and Leser v. Garnett, 258 U.S. 130 (1922). The period culminated in Roosevelt's proposal in 1937 to expand (and "pack") the Supreme Court. Eighteen proposed amendments to Article V were proposed from 1911 to 1928, and five were proposed in 1937 alone.[Note 1] Most would have made the amendment process more democratic in procedure, or less so in substance by prohibiting amendments of certain kinds.
A. Recent Proposals
These are the proposed amendments to Article V from three recent Congresses during a period of important amendment activity. The Equal Rights Amendment was proposed in 1972 with a ratification period of seven years; after a three year extension of the ratification period, it expired unratified June 30, 1982. All the following proposals died in their respective judiciary committees without a floor vote.
- The 95th Congress: 1978-79
- H.10,836. Sponsored by Hyde, Dornan, Grassley, Kelly, Logomarsino, Lunken, Thorne, and Young. It would provide procedures for calling a constitutional convention.
- H.11,546. Sponsored by Symms, Crane, Ashbrook, and MacDonald. It would prohibit the President and officers from the Executive Branch from attempting to influence State legislatures to ratify, or not to ratify, a constitutional amendment.
- H.11,600. Sponsored by Hyde, Cavanaugh, Smith (Neb.), Traxler, and Walsh. It would provide procedures for calling a constitutional convention.
- H.12,503. Sponsored by Wiggins, Hyde, Sawyer, Hughes, and Evans (La.). It would provide procedures to determine the validity of a State's ratification of a constitutional amendment.
- HJR.1110. Sponsored by LaFalce. It would allow Congress to determine that a simple majority of each house of a State legislature could suffice to ratify a constitutional amendment.
- The 96th Congress: 1979-80.
- HJR.595. Sponsored by Lujan. It would permit constitutional amendments to be ratified by a nationwide popular referendum.
- The 97th Congress: 1980-81.
- S.600. Sponsored by Helms. It would provide procedures for calling a constitutional convention.
- S.817. Sponsored by Hatch and Deconcini. It would provide procedures for calling a constitutional convention. Supported by the American Bar Association.
- H.297. Sponsored by Hansen (Ida.). It would give effect to State attempts to rescind ratification of constitutional amendments.
- H.353. Sponsored by Hyde and Lundgren. It would provide procedures for calling a constitutional convention.
- HJR.88. Sponsored by Jacobs. It would allow the States to propose amendments to the constitution.
B. An historical proposal passed by Congress
Only one attempt to amend Article V was among the select group of six proposed amendments that was actually passed by Congress and defeated by the states.[Note 2] It is the so-called Corwin amendment. Without its preamble it read:
No Amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any state, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.
Congress adopted this proposal on March 2, 1861. It is substantively, although somewhat covertly, concerned with slavery. It proposes to protect slave states from congressional interference. But it can rightly be considered an amendment to Article V because, if ratified, it would significantly and expressly have curtailed the federal amending power. Moreover, as originally adopted, Article V included an express limitation that prevented the abolition of slavery by amendment until 1808. The Corwin amendment would have renewed the limitation in perpetuity.
The Corwin amendment is ambiguous on the question whether it precludes an amendment directly abolishing slavery, or merely precludes amendments that authorize Congress to abolish slavery. The former would constitute the entrenchment, but not the self-entrenchment, of slavery; even under its stringent interpretation, the Corwin amendment did not (explicitly) bar its own repeal.
Orfield counts 14 proposed amendments that would somehow have precluded the abolition of slavery. Only the Corwin amendment passed Congress.[Note 3] Four years and one Civil War after passing the Corwin amendment, Congress passed the Thirteenth Amendment, abolishing slavery, which was ratified by the states. Needless to say, the ratification of the Thirteenth Amendment preempted the movement to ratify the Corwin amendment. However, the Corwin amendment had only been validly ratified by two states (Ohio, Maryland). Illinois attempted to ratify it, but probably did so defectively by voting to ratify it in a state constitutional convention that happened to be in session in 1861.[Note 4]
Incidentally, the Corwin amendment and the Thirteenth Amendment were the only proposed amendments ever signed by the President. James Buchanan signed the Corwin amendment two days before leaving office for Abraham Lincoln, in a desperate eleventh-hour effort to avert the Civil War. Lincoln signed the Thirteenth Amendment abolishing slavery, but thinking he erred he notified Congress. The Senate declared the signature unnecessary and not to be a precedent. When the Twelfth Amendment was still in Congress, a Senate resolution to submit it to the President (Jefferson) was defeated. Before and after the Corwin amendment Congress realized that the President need not sign, and cannot veto, a constitutional amendment.[Note 5]
C. Historical proposals not passed by Congress
Proposals to amend Article V prior to the 20th century have been collected by Herbert Vandenberg Ames and discussed in admirable detail in Chapter VI of his The Proposed Amendments to the Constitution of the United States During the First Century of its History.[Note 6] I list the proposals here in chronological order, not the order in which Ames discusses them.
- Rhode Island proposed an amendment to Article V at the time it ratified the constitution, May 29, 1790. It proposed that after 1793, no amendment be valid without the consent of at least 11 of the original 13 states. The other states resisted the strong appeal to their self-interest and defeated this proposal, leaving them without any legal privilege over subsequently admitted states.
- Although not strictly an amendment to Article V, in 1822 an attempt was made to call a convention to propose amendments to the body of the constitution generally but in a way violating Article V. Alabama, Georgia, New York, South Carolina, and Virginia attempted to call a convention of states; Delaware succeeded in averting the convention by arguing that Article V authorizes only a convention of the people, not a convention of states. But for Delaware's action, Article V may have been amended by violation, sub silentio, replaced by a self-declared successor.
- In 1826 Representative Herrick of Maine proposed that future proposals to amend the constitution be heard only every tenth year.
- In January of 1861, Senator Crittenden of Kentucky proposed to entrench absolutely the slavery laws of the several states, together with his own amendment. He would allow slavery below, and forbid it above, 36o 30', and would forever bar blacks from voting or holding public office. The self-entrenchment of the amendment would have been the first for a constitutional amendment. Crittenden also made it part of his proposal that it be ratified by popular referendum, which would have violated Article V even if approved unanimously (see ##7, 10, below).
- In January of 1864, Senator Henderson of Missouri proposed that the supermajority of state concurrences needed to ratify an amendment be reduced from three-fourths to two-thirds.
- Shortly after the Civil War, Virginia called and sponsored a "Peace Convention" attended by representatives from 21 states. The convention was not called under the procedures of Article V, yet it drafted amendments that it recommended to Congress; it did not purport to ratify the amendments. One proposal by a Mr. Florence, representative from Pennsylvania, is particularly germane to our topic:
The reserved power of the people in three-fourths of the states to call and form a national convention to alter, amend, or abolish this Constitution, according to its provisions, shall never be questioned, notwithstanding the direction in Article V of the Constitution.
The amendment would in effect have made solid constitutional law out of the glorious but legally uncertain language of the Declaration of Independence (see Section 18). However, Mr. Florence did not appreciate that making the right to "alter, amend, or abolish" into an express part of the constitution not only solidifies it, but also subjects it to amendment. The last clause of the proposal attempts to protect the right from amendment by entrenchment, but does so badly. It merely immunizes it from "the direction" whatever that is in Article V, which in any case may be replaced by self-amendment. Further, entrenchment clauses are liable to amendment, even if they are self-entrenched (see Sections 8, 9). Finally, the intent of the proposal is obviously to carve out an indefeasible right, but without heed to the paradox of self-amendment: even under their reserved power, may the people amend their indefeasible right to amend?
- In January of 1869, Senator Davis of Kentucky proposed to allow ratification by popular referendum, not only for future amendments but also for his very amendment proposal. This raises the bootstrapping problem of #4 above, but cleared of the distractions of entrenchment and slavery (see also #10 below). Article V does not permit ratification by popular referendum; this is clear from Article V, confirmed in part by Hawke v. Smith, 253 U.S. 221, 10 A.L.R. 1504 (1920), and presupposed by Davis' own proposal. Insofar as Article V is exclusive (see Section 12.A), a popular vote simply could not ratify the Davis amendment just as whites had to vote to give blacks the right to vote in the Fifteenth Amendment, and men had to vote to give women the right to vote in the Nineteenth Amendment. However, if Davis' proposal had been endorsed by the requisite popular vote, but never ratified under the procedures of Article V, and if it were treated as if it were validly ratified by the people and officials, then we would need something like an acceptance theory to explain its legality.
- In 1869 Senator Morton of Indiana proposed to include in Article V certain minimal procedures to be used by state legislatures when ratifying federal amendments. His proposal was prompted by an embarrassing series of procedural irregularities that plagued the Indiana legislature in its "deliberations" on the Fifteenth Amendment (Black Suffrage). In the state senate, for example, the democrats who opposed ratification tried to break quorum by leaving the chamber. The republican leadership locked them in before they could escape. In the house, all but 10 democratic representatives abruptly resigned, again to break quorum. The speaker ruled that the house was still competent to act, and obtained a 2/3 vote in favor of ratification from the "members present".
- In the same session of Congress, a proposal similar to Senator Morton's was introduced in the House by Representative Shanks, also of Indiana.
- In January of 1872, Representative Porter of Virginia proposed to allow ratification of amendments by simple majority in a popular referendum. His proposal avoided the bootstrapping problems of ##4 and 7 above by requesting ratification through the methods of Article V, not through a popular referendum.
D. The Articles of Confederation
Although the AC of the present constitution has never been directly amended, one might argue that it is itself an amended form of the AC of the Articles of Confederation (hereafter, the "Articles"). If the present constitution was written under the authority of the Articles (which is controversial) and if the present AC differs from the old one (which is certain), then the latter authorized its own change, indirectly by convention rather than directly by amendment.
The AC of the Articles is contained in the first paragraph of Article XIII:
[N]or shall any alteration at any time hereafter be made in any of them [the Articles]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.
This clause differs from the present one in two significant respects: (1) it does not expressly allow amendment by convention, and (2) it requires unanimous concurrence by the states, not merely a three-fourths majority. The requirement that Congress assent to amendments remains in the new AC, although in the new AC Congressional assent must take the form of two-thirds of each house. More importantly, the condition of Congressional assent is missing from the new constitution's ratification clause (Article VII) under which the new constitution was adopted.
Ever since 1789 scholars have debated whether the new constitution was a product of the authority of the Articles or a revolutionary break with it. It could be a product of the Articles if it could be construed as a product of the Articles' AC, for the Articles provided no other means for their own replacement.
The convention of 1787 was called by Congress to suggest amendments. This by itself did not violate the Articles, for the convention's power was limited to the proposal of amendments and did not include their ratification. In its call for the convention, Congress declared that it intended to comply with the AC of the Articles. The language of Congress suggested that it wished for amendments to the Articles rather than an entirely new constitution. The resolution in pertinent part read:[Note 7]
Whereas there is provision, in the Articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the Legislatures of the several states; and whereas experience hath evinced that there are defects in the present Confederation; as a mean to remedy which, several of the States, and particularly the state of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government,
Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the Union.
But notoriously the convention exceeded its mandate and wrote an entirely new document. However, the new constitution was merely a proposal that Congress had the power to discard or to take up under the Articles' AC for consideration by the states.[Note 8] The important question is not whether the convention went beyond its legal authority or the scope of its enabling resolution, for the Articles are silent on the methods of proposing revision, but whether the procedures laid down in the Articles were violated in the adoption of the new constitution.
Two violations of those procedures occurred. First, the new constitution by its own terms (Article VII) would be established if ratified by nine states (and only for the ratifying states), whereas the Articles required unanimous ratification. Thomas Reed Powell, among others, thinks this defect was cured by the fact that a unanimous ratification was eventually received.[Note 9] Powell believes the constitution did not become law until the 13th state (Rhode Island) ratified; ratification by the 9th state (New Hampshire) did not suffice. On this theory, there is a strong paradox for the nation during the two-year period between the 9th and 13th ratifications (June 21, 1788 to May 29, 1790): the new document was valid under its own terms but not under the terms of the Articles. If its own terms did not suffice, then at least after the 13th ratification, apparently, all the terms of the new document would be effective. That would include the validation of the new constitution's ratification clause, Article VII, which says that a 9/13 vote will establish the constitution. Does this mean that the 13th ratification would bring the retroactive validation of the new document for the previous two years?
The delegates to the constitutional convention, in writing the ratification clause of the new document, knew they were departing from the terms of the AC of the Articles. John Randolph, a delegate, defended the irregularity of the less-than-unanimous ratification terms by appeal to "necessity", on the theory that a new constitution, providing a strong national government, was necessary to preserve the union. To require unanimity, or to use the AC of the Articles, would risk defeat when the stakes were high.[Note 10]
In Federalist #43, James Madison also defended the irregular adoption of the new constitution by appeal to "absolute necessity", "self-preservation", and "the transcendent law of nature and of nature's God". With some diffidence he then offered a novel theory based on international treaty law: if the Articles were a treaty signed by sovereign powers, then breaches may be found in adequate numbers to absolve all signatories of future allegiance. In Federalist #40 he offered justifications based on a waiver theory, overriding moral duty, and the curative effect of subsequent ratification.
The second violation was the stipulation in the new constitution (again, Article VII) that ratification by the states without the assent of Congress will suffice, whereas the Articles required ratification by both the Congress and the states. This defect was cured, if at all, by the fact that Congress did ratify the new constitution an historical contingency similar to the garnering of a unanimous state ratification.[Note 11]
John Alexander Jameson summarized the view of many when he said,[Note 12]
[I]t is clear, that the act of disregarding the [amendment] provision of the 13th of the Articles of Confederation, was done confessedly as an act of revolution, and not as an act within the legal competence of either the people or the Convention, under the Constitution then in force.
The defects in the adoption of our constitution, that make it revolutionary or illegal, have also been the object of judicial notice. When the Nebraska constitution was challenged for procedural defects in its adoption, the Nebraska Supreme Court held that the challenge was as futile as one to the federal constitution, which is valid despite the well-known irregularities in its making and adoption. Brittle v. People, 2 Neb. 198, 210 (1873).
Our present constitution is valid even if not validated by its predecessor. The AC of the present constitution, according to most writers, cannot be considered a self-amended product of the AC of the Articles. It is a revolutionary replacement, not an antecedently authorized one.
E. Selected Suggestions by Writers
Many writers have proposed changes in Article V from their sovereign position as citizens.[Note 13]
Some writers have written entirely new constitutions that are serious in the sense that they are proposed for adoption and, in theory, are perfectly eligible to be taken up through proper channels and ratified. Some of these alternative or utopian constitutions are very thoughtful and challenging. Some are little more than excrescences of anger. A good example of the former was written by Virginia Woodhull,[Note 14] published in the same year (1872) that she became the first woman to run for President of the United States. (She ran for the Equal Rights Party, with Frederick Douglass for Vice President.) The amendment articles, XVIII and XIX, are not innovative except for including provision for ratifying the constitution itself. Woodhull's constitution is revolutionary in that it provides its own ratification procedure independent of antecedent authority (that is, the current Article V) and makes no pretension to derive its authority from that which it would replace. In that sense its relation to the present constitution would be the same as that of the present constitution to the Articles of Confederation.
Another well-considered alternative, presented as a series of criticisms and suggestions rather than as a proposed draft, is William MacDonald's A New Constitution for a New America.[Note 15] He proposes vast changes in the constitution, but no new amendment clause. However, he believes the present Article V is inadequate to accomplish the enormous task he contemplates, and breaks new ground by suggesting that the authority may be found in the Declaration of Independence for a "right of the people to abolish it [their form of government] and to institute a new government, laying its foundations on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness."[Note 16] This right is not abstract or merely rhetorical, he believes, but may support a call for a constitutional convention, though the need for it is surely based on a misinterpretation of the power of the present Article V.[Note 17]
An example of a less reflective work is provided by William Gardiner in A Proposed Constitution for the United States.[Note 18] The amendment clause, Article XX, is novel in allowing the unanimous Supreme Court to propose or ratify an amendment, but not both for the same amendment. In the ratification article, XXI, Section 1 stipulates that his constitution can be ratified through Article V of the present constitution. Section 2 permits ratification by a President who chooses to "make himself a dictator after arranging for safeguards that he will not become a permanent dictator." Section 3 describes the poverty and hardships endured by Greek farmers in 595 B.C. Section 4 tells how Solon "became a dictator and did a good job in cleaning up the mess."[Note 19]
1. For a thoroughly documented discussion of the efforts to amend Article V in that period see Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, Chapter VI. [Resume]
2. The six amendment proposals rejected by the states after passing Congress are as follows: (1) a scheme to apportion the members of the House of Representatives (submitted with the Bill of Rights in 1789), (2) a rule barring Congressional salary increases from taking effect until after the next election of representatives (submitted with the Bill of Rights in 1789), (3) a rule to strip U.S. citizenship from any citizen accepting a title, present, or office from a foreign power without the consent of Congress (1810), (4) the Corwin amendment, an attempt to forestall the abolition of slavery, discussed in the text accompanying this note, (5) the Child Labor Amendment, which would have given Congress authority to regulate the labor of those under 18 years of age (1924), and (6) the Equal Rights Amendment, which would have prohibited discrimination by the state and federal governments on account of sex (1972). [Resume]
3. Orfield, ibid., at 204. [Resume]
4. Orfield, ibid., at 204-05; Herbert Vandenberg Ames, The Proposed Amendments to the Constitution of the United States During the First Century of its History, Washington, D.C.: Government Printing Office, 1897, at 286. [Resume]
5. See Hollingsworth v. Virginia, 3 U.S. 378 (1798); Hawke v. Smith, 253 U.S. 221, 229; John Alexander Jameson, Constitutional Conventions, 4th ed. (1887), ##556-61; Orfield, op. cit. at 50.n.30. [Resume]
6. Ames, op. cit. See also Michael A. Musmanno, "Proposed Amendments to the Constitution, House Document 551 (70th Congress, 2d Session), 1928, pp. 191-97. [Resume]
7. February 21, 1787. The resolution is frequently reprinted, e.g. in Allen Johnson (ed.), Readings in American Constitutional History, 1776-1876, Houghton Mifflin Co., 1912, pp. 98-99. It also appears, with comparable resolutions of the various states, in W.U. Solberg, The Federal Convention and the Formation of the Union of the American States, The Liberal Arts Press, 1958, p. 54 (call by Congress), pp. 58ff (calls by the States). [Resume]
8. The fact that the convention wrote an entirely new document, instead of submitting separate amendments, would be improper under the many state constitutions that distinguish "amendment" from "revision". Only revision, for them, embraces wholesale alteration. However, the call for a convention called for "revising the Articles", and in any case the silence of the Articles on the distinction between amendment and revision suggests that the scope of the proposed change was not a violation of the Articles' AC, even if it was a violation of the Congressional resolution calling the convention. [Resume]
9. T.R. Powell, "Changing Constitutional Phases," Boston University Law Review, 19 (1939) 509-32, at pp. 511-12. [Resume]
10. See Jonathan Elliott, Debates, vol. 5, J.B. Lippincott, 2d ed., 1886, pp. 352-56, 499-502, 532-34. [Resume]
11. Orfield believes that the ratification by Congress did cure this defect, while the unanimous ratification by the states did not cure the first defect. Op. cit., at 147. [Resume]
12. John Alexander Jameson, Constitutional Conventions, Callahan and Co., 4th ed., 1887, #564, p. 596. [Resume]
13. The best discussion of the suggestions by jurists up to 1942 is Orfield's Chapter VI, op. cit. [Resume]
14. Her constitution first appeared in Woodhull and Claflin's Weekly for February 10, 1872, and has been reprinted in Philip S. Foner (ed.), We, The Other People, University of Illinois Press, 1976, pp. 180-201. [Resume]
15. William MacDonald, A New Constitution for a New America, B.W. Huebsch, 1921. [Resume]
16. Ibid., at p. 211, quoting the Declaration of Independence, second paragraph, second sentence. [Resume]
17. However, in his next chapter (Chapter XX) MacDonald solidifies his call for a convention by basing it on Article V. He maintains that the procedures of Article V are not exclusive and cannot limit the people's right to create a new form of government (p. 228). [Resume]
18. William Gardiner, A Proposed Constitution for the United States, Summerfield, Florida: William Gardiner, 1973. [Resume]
19. Gardiner, who earned a master's degree in 1924, calls himself "Dr. Gardiner" and reveals that he is a member of the "United Methodist Church, Phi Delta Kappa, Masonic Order, and Order of the Eastern Star." [Resume]
This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.
Department of Philosophy,
Earlham College, Richmond, Indiana, 47374, U.S.A.
firstname.lastname@example.org. Copyright © 1990, Peter Suber.