Amending process. (2003). In K. Jost (Ed.), The Supreme Court A to Z. Washington: CQ Press. Retrieved August 19, 2005, from CQ Electronic Library, CQ Encyclopedia of American Government

Amending Process

The Constitution gives the Supreme Court no specific role in proposing or ratifying constitutional amendments. The Court's few substantive rulings on the amending process have generally supported the broad authority the Constitution grants to Congress on this subject.

Two procedures for proposing amendments are set out in Article V, but only one has ever been used. The process begins with Congress, which by two-thirds majority votes of the Senate and House of Representatives may submit amendments to the states for ratification. Under the second, untried method, amendments may be proposed by a constitutional convention, which Congress must convene if asked to do so by the legislatures of two-thirds of the states.

Under either method, a proposed amendment becomes part of the Constitution if it is ratified by three-fourths of the states, through state legislatures or state conventions, whichever Congress chooses. So far, in all but one instance Congress has specified ratification by state legislatures. The convention route was used to ratify the Twenty-first Amendment, which repealed Prohibition.

The president is not required to sign and cannot block a congressional resolution proposing a constitutional amendment. The Bill of Rights was not submitted to the president, and in 1798 the Supreme Court specifically endorsed this interpretation of the amending process in a decision regarding the effect of the Eleventh Amendment.

As of mid-2003, thirty-three amendments have been submitted to the states. Twenty-seven were ratified, four of which were written to overturn Supreme Court decisions.

The Twenty-seventh Amendment (prohibiting a pay raise for members of Congress from taking effect until after the next biennial congressional election) had the most curious history of any of the ratified amendments. It was submitted in 1789 as part of the Bill of Rights, but was ratified by just six states through 1791. After lying dormant for nearly two centuries, a new ratification drive began in the mid-1980s. This attempt led to approval by the needed thirty-eighth state on May 7, 1992.

After some speculation on the amendment's validity after such a long passage of time, the amendment was certified on May 18, 1992, by the archivist of the United States, who has responsibility for receiving notice of ratification from the states. Congress, seeking to have the final word on the issue, over the next two days adopted a joint resolution recognizing the amendment by a vote of 414 to 3 in the House and 99 to 0 in the Senate.

Four other proposed amendments were still technically pending in 1992. A resolution to invalidate these amendments was introduced in the Senate but was referred to committee.

Two other amendments proposed by Congress, the Equal Rights Amendment (ERA) for women and an amendment to give the District of Columbia voting representation in the House and Senate, failed to win ratification within the time period set by Congress.

The Supreme Court upheld Congress's power to set a deadline for ratification when the practice was first used, as part of what became the Eighteenth Amendment, which had established Prohibition. In Dillon v. Gloss (1921) the Court said that “the fair inference or implication from Article V is that the ratification must be within some reasonable time after the proposal” and that Congress's power to specify a deadline was “an incident of its power to designate the mode of ratification.”

In 1939 the time-limit issue reached the Court again in a case involving Kansas's attempt to withdraw its ratification of the proposed child labor amendment, which had been submitted to the states in 1924. In Coleman v. Miller the Court said that the decision on what constitutes a reasonable time limit was a political question to be decided by Congress, not by the Court.

In a concurring opinion four justices called into question the Court's earlier finding that ratification should occur within a reasonable time, calling it “an advisory opinion, given wholly without constitutional authority.” The acceptance of the Twenty-seventh Amendment in 1992 left uncertain whether Congress has the power to disregard state ratifications because of the passage of time if the amendment itself contains no time limit. Also uncertain are the right of a state to rescind its ratification of a proposed amendment and the right of Congress to extend a deadline for ratification.

In Coleman v. Miller the Court strongly indicated that only Congress could decide the rescission issue. Congress never dealt with the question, however, because the child labor amendment had not been ratified by enough states.

Earlier decisions on rescission were inconsistent. At Congress's direction, the secretary of state counted the ratification of the Fourteenth Amendment by three states that had voted to withdraw their approval of the measure. But the secretary of state apparently accepted North Dakota's rescission of its ratification of the Twenty-fifth Amendment (the presidential disability amendment added to the Constitution in 1967).

Both the rescission and extension issues arose in October 1978 when Congress passed a thirty-nine-month extension for approval of the ERA, which needed ratification by three more states to be adopted. Opponents of the amendment challenged the extension, while supporters hoped to nullify the actions of four state legislatures in voting to rescind their previous ratification of it.

In 1981 a federal judge in Idaho ruled that Congress had exceeded its power in extending the ratification deadline. He also ruled that states could rescind their approval of the amendment if they acted during the ratification period. Early in 1982 the Supreme Court agreed to hear an appeal from those rulings. After the ratification period expired on June 30, however, the Court dismissed the case as moot, leaving the questions unresolved.



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