Amendments

What Article V says, and what it leaves out

Article V ends with a sentence that died on schedule. After laying out how the Constitution may be amended, it adds two exceptions. The first ran out in 1808: until that year, no amendment could touch the clauses on the slave trade or on direct taxes. The second has no expiration. No state, without its consent, may be deprived of its equal suffrage in the Senate.

A founding document with an expiration date inside it tells you something about what Article V is. It is not a statement of principle. It is a procedure with two bargains stapled to the end, and it leaves out almost everything a lawyer would want to know. Thousands of amendments have been introduced in Congress since 1789, and twenty-seven are in the Constitution. This reading is about what separates those twenty-seven from everything else, and the activity then has you take one of them and trace it yourself.

Read the text of Article V (opens in a new tab) for its silences. It does not say how long a proposal stays alive. It does not say whether a state that has ratified may change its mind, or whether a state that voted no may later say yes. It does not say who decides any of that. Nearly every fight over amendments in the last century has been fought in one of those gaps.

Two ways to propose, two ways to ratify

Proposal comes first, and Article V gives it two routes. Two-thirds of both houses of Congress can propose an amendment. Or two-thirds of the state legislatures can apply for a convention, and Congress then calls one. The second route has never been used. The Supreme Court said so in 1921, and it is still true.

Ratification is the second stage, and it also has two routes. Three-fourths of the states must approve, through their legislatures or through conventions called for the purpose. Congress picks which. It has picked conventions exactly once, for the Twenty-First Amendment, whose own text required ratification “by conventions in the several States.” Prohibition went in through the legislatures and came out through conventions.

Three-fourths is the number that does the work. With fifty states, thirty-eight have to agree, which means thirteen can stop anything. That threshold is harder than it sounds, because the thirteen never have to organize, or agree with each other, or explain themselves. They only have to not act.

What the twenty-seven had

The clearest thing the successful amendments share is a moment, not an argument. Something interrupted the ordinary politics that keeps thirty-eight legislatures from agreeing about anything.

The Reconstruction Amendments are the example. The Thirteenth was ratified in December 1865, the Fourteenth in July 1868, and the Fifteenth in February 1870. Slavery abolished, citizenship and equal protection guaranteed, the vote protected against racial denial, in four years. Nothing before or since has moved that fast, and the moment that made it possible was a war and the occupation that followed.

The Fourteenth Amendment also produced the first serious fight over taking a ratification back. Ohio and New Jersey ratified, then passed resolutions withdrawing their consent. Secretary of State Seward proclaimed the amendment ratified anyway in July 1868, noting in the proclamation that it was “a matter of doubt and uncertainty” whether those withdrawals counted for anything. Congress did not wait for the doubt to be resolved. The next day it passed a concurrent resolution listing Ohio and New Jersey among the ratifying states and declaring the Fourteenth Amendment part of the Constitution.

Georgia, North Carolina, and South Carolina had rejected the amendment outright in 1866, then ratified in 1868 under governments Congress had reconstructed. They went on the list too. So the lesson of 1868 is not that a withdrawal is legally void. It is that in 1868 the political branches answered the question, and nobody has undone that answer since.

Where the others stopped

Failed amendments fail in two different ways, and the difference matters. Some simply run out of states. The D.C. Voting Rights Amendment, which would have given the District congressional representation, cleared Congress in 1978 and never came near three-fourths. Others collect enough states, or nearly enough, and then hit a question Article V never answered.

The Child Labor Amendment is the second kind. Congress proposed it in June 1924 and set no time limit. Kansas rejected it in January 1925. Twelve years later the Kansas Senate split twenty to twenty on a ratifying resolution, and the Lieutenant Governor cast the deciding vote in favor. Twenty-one legislators sued to have the ratification struck from the record.

Coleman v. Miller, 307 U.S. 433 (1939) (opens in a new tab) is what came back. The petitioners argued that thirteen years was too long and that Kansas had spent its say when it rejected the amendment in 1925. The Court declined both questions. Whether a proposal has lost its vitality through lapse of time is for Congress, it held, when the time comes to promulgate the amendment. That decision is not reviewable by the courts. On prior rejection and attempted withdrawal it pointed back to 1868 and gave the same answer: a political question, with the ultimate authority in Congress.

That leaves the ratification deadline. Congress attached the first one to the Eighteenth Amendment, seven years, and a man arrested for transporting liquor argued that the deadline made the whole amendment invalid. Dillon v. Gloss, 256 U.S. 368 (1921) (opens in a new tab) held the opposite. Article V says nothing about timing, but proposal and ratification are steps in one endeavor, so ratification “must be within some reasonable time after the proposal.” Fixing that period is a detail Congress may settle.

Put the two cases together and you get the tangle the Equal Rights Amendment sits in. Congress proposed it in 1972 with a seven-year deadline, then extended the deadline to 1982. Thirty-five states had ratified when the extended deadline passed, three short of thirty-eight. Nevada, Illinois, and Virginia ratified between 2017 and 2020, which reaches thirty-eight if the deadline does not bind and if the five states that voted to rescind cannot. The Congressional Research Service report on the amendment (opens in a new tab) works through both questions without resolving either, because neither has been resolved.

Notice what did the sorting in all of this. Not the text of Article V, which is silent on every one of these questions. The twenty-seven got through because enough states agreed inside a window nobody disputed, or because the political branches settled a dispute and no court disturbed the settlement. The ones that stalled are still arguing about who decides.

Your amendment

The activity has you pick one amendment from Amendments 11 through 27 and follow it from the pressure that produced it to the cases that construed it. The National Archives list (opens in a new tab) is your menu, and it carries each amendment’s proposal and ratification dates. Look at the gap between those two dates before you choose. A short gap usually means the moment had already arrived. A long one usually means somebody had to build it.

Start with the Origins and Ratification Investigator, and hold it to the standard this reading has been using: where the pressure came from, who resisted it, and what actually happened in the states. Then check its account against the Constitution Annotated essays (opens in a new tab) for your amendment. Dates and vote counts are the easiest claims to verify, so verify those first, and expect at least one of them to be wrong.

Your amendment is one of twenty-seven. Working out why it is not one of the thousands is the assignment.