Examining Article 5 of the Constitution

Introduction

The United States Constitution is famously difficult to change. Article 5 of the Constitution lays out the formal process for amendments, providing a balance between flexibility and stability. This report examines Article V in detail, exploring why the Framers designed the amendment process as they did, how the Constitution has actually been amended over time, and the challenges of passing amendments in the modern era. It also analyzes differing perspectives on constitutional change – from the debates of Federalists and Anti-Federalists in the 1780s to modern arguments between originalists and living constitutionalists. Finally, it evaluates the prospects of seeing another constitutional convention or major amendment in the foreseeable future, given historical precedent and today’s political dynamics.

Article V: The Amendment Process

Text of Article V: Article V of the U.S. Constitution provides two methods to propose amendments and two methods to ratify them. An amendment can be proposed either by Congress, with a two-thirds vote in both the House of Representatives and the Senate, or by a national convention called for that purpose by Congress when two-thirds of state legislatures (34 out of 50 states) apply for one. Once proposed, an amendment must be ratified by the legislatures of three-fourths of the states (38 states) or by ratifying conventions in three-fourths of the states. Congress gets to choose which ratification method will be used for each amendment. Importantly, Article V sets one permanent limitation: no state can be deprived of its equal representation in the Senate without that state’s consent. (In addition, Article V originally prohibited any amendment before 1808 that would affect the slave trade or direct taxation provisions, a clause that became obsolete after 1808.)

A Balanced Approach: The Framers deliberately made the amendment process neither too easy nor too hard. James Madison, in Federalist No. 43, explained that Article V “guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.” In other words, the Constitution shouldn’t be amended for light or transient reasons, but it also must not be impossible to fix serious flaws. By requiring supermajority agreement (two-thirds of Congress and three-fourths of states), Article V ensures that only amendments with broad national consensus can succeed. At the same time, by not requiring unanimity (unlike the Articles of Confederation, which had demanded unanimous consent of the states for any change), the Constitution could be updated when truly necessary. This balanced approach was intended to provide stability while still allowing adaptation over time.

Dual Paths – Federal and State Initiative: Article V empowers both the federal and state levels to initiate amendments. Congress has the primary role in proposing amendments (and indeed, every amendment to date has been proposed by Congress), but the Constitution also grants states a mechanism to act if Congress fails to. If two-thirds of state legislatures demand a convention to propose amendments, Congress “shall” call one. This state-initiated path was added at the urging of delegates like George Mason, who worried that Congress might become unwilling to propose amendments that restrain federal power. Mason argued that without an alternative route, “no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive.” The convention option thus serves as a constitutional “safety valve” – a way for the states and the people to bypass an obstinate Congress, should the need arise. Notably, though a state-driven Article V convention has never been convened in U.S. history, its mere presence in the Constitution has influenced Congress (for example, the threat of a states’ convention helped prod Congress to propose the Bill of Rights, and later the 17th Amendment for direct Senate elections).

Origins and Purpose of Article V

Learning from History: The amendment process was a product of intense debate at the 1787 Constitutional Convention. The Framers had learned from their experience under the Articles of Confederation, which had made amendments virtually impossible (requiring all 13 states to agree). Many founders saw that extreme rigidity as a fatal flaw that left the young nation unable to correct problems. At the same time, they were mindful of not making change too easy, which could lead to instability. Early state constitutions provided models of amendment procedures that were more flexible than the Articles but still required special majorities or conventions for changes. Drawing from these lessons, the delegates agreed that the new federal Constitution must have a viable mechanism for amendments “as time and experience” showed necessary improvements.

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Framers’ Intent: The delegates’ goal was to ensure the Constitution could evolve, but only with substantial agreement. They believed some provisions would need revision or addition over the years, but they wanted changes to reflect a broad consensus of the American people. James Madison noted that it was “requisite… that a mode for introducing [useful alterations] should be provided.” The solution they crafted allowed both Congress and the states to propose corrections or additions to the constitutional framework. Alexander Hamilton, in Federalist No. 85, argued that it would be easier for the united people of the new republic to adopt amendments later than to try to rewrite the Constitution upfront during ratification. He pointed out that once the Constitution was in place, any needed amendment would be just “a single proposition” requiring agreement of three-fourths of the states, rather than having to start from scratch with all states unanimous. Hamilton assured skeptics that whenever an amendment was truly necessary, enough states would rally behind it so that it “must infallibly take place.”

Federalist vs. Anti-Federalist Views: The amendment process was also a key point of contention in the ratification debates between Federalists (supporters of the new Constitution) and Anti-Federalists (opponents who feared a too-powerful central government). Federalists argued that Article V was an adequate remedy for any imperfections in the Constitution. They contended that while the Constitution as drafted was sound, any omissions or errors could be fixed by amendments in the future. For example, in response to criticism that the Constitution lacked a bill of rights, Federalists like James Madison initially held that the structure of government and state constitutions already protected liberties – but they ultimately conceded that adding explicit rights through amendment would be wise to placate public concerns. Indeed, Federalists promised to add a Bill of Rights as soon as the new government began, using the Article V process, in order to win over moderate Anti-Federalists.

Anti-Federalists, for their part, were wary that Article V might not be effective in practice. Some Anti-Federalists argued that the Constitution should be immediately amended before ratification, to include essential protections (they distrusted that the first Congress would actually follow through on adding rights). They also worried that the bar for future amendments was set too high. Luther Martin, an Anti-Federalist delegate who left the Convention, noted that requiring three-fourths of states to agree meant a few small states could block important changes favored by the majority. Nonetheless, prominent Anti-Federalists like George Mason and Patrick Henry insisted on the necessity of amendments to curb federal power and protect liberties. Mason’s influence ensured the inclusion of the state-driven convention option in Article V as a way to bypass a Congress that might resist needed reforms. Ultimately, the Anti-Federalists’ pressure led directly to the first ten amendments (the Bill of Rights) in 1791 – a series of amendments proposed by the First Congress in response to demands from state ratifying conventions. This early episode demonstrated Article V’s role as a political compromise: the Constitution was ratified largely on the understanding that it would promptly be amended to address its critics’ greatest concerns.

Historical Evolution Through Amendments

Over the past two centuries, the Constitution has been amended 27 times. These amendments usually came in clusters, often spurred by significant political and social movements or in response to national crises. Below is an overview of the major amendments in U.S. history, with their political context:

The Bill of Rights and Early Amendments (1789–1804)

• Bill of Rights (Amendments 1–10, ratified 1791): The first ten amendments were added immediately after the Constitution’s adoption, fulfilling the promise to Anti-Federalists to protect individual liberties and states’ rights. Led by James Madison in Congress, these amendments guarantee fundamental rights such as freedom of speech, religion, arms, due process, jury trial, etc. The Bill of Rights reflected widespread public demand for explicit safeguards against federal encroachment. They also set an important precedent that the Constitution could be quickly amended when a broad consensus (in this case, virtually everyone agreed on protecting basic liberties) was present.
• 11th Amendment (ratified 1795): This amendment was passed in direct reaction to a Supreme Court decision. In Chisholm v. Georgia (1793), the Court had allowed a citizen of one state to sue the government of another state. This alarmed states, who feared being hauled into federal court by private plaintiffs. The 11th Amendment was rapidly adopted to affirm the principle of “state sovereign immunity,” prohibiting most lawsuits against states in federal court. It showed that when the Supreme Court’s interpretation of the Constitution strayed from popular or legislative intent, the amendment process could be used to overturn the decision.
• 12th Amendment (ratified 1804): The 12th Amendment was prompted by the messy presidential election of 1800. Under the original rules, each Elector cast two votes for President, and the top vote-getter became President, second place became Vice President. This system broke down when Thomas Jefferson and his running mate Aaron Burr tied in the electoral vote. After a bitter contingent election in the House, Congress moved to amend the Constitution. The 12th Amendment requires electors to cast separate votes for President and Vice President, preventing future ties and aligning the Electoral College with the rise of political parties. It highlights how evolving political practices (the emergence of party tickets) necessitated a constitutional adjustment.

Civil War and Reconstruction Amendments (1865–1870)

The trauma of the Civil War led to fundamental transformations of the Constitution’s guarantees of liberty and equality:

• 13th Amendment (ratified 1865): Abolished slavery throughout the United States. Passed in the aftermath of the Union victory, it was the first of the Reconstruction Amendments and represented a profound social revolution – the end of an institution that the original Constitution had accommodated. Its passage was driven by the moral and political mandate to forever eliminate slavery after the Civil War (President Lincoln and abolitionists in Congress pushed it strongly, and former Confederate states were required to ratify it as a condition for regaining representation in Congress).
• 14th Amendment (ratified 1868): Redefined citizenship and guaranteed equal protection and due process under the law at the state level. This amendment was prompted by the need to protect the rights of newly freed African Americans against oppressive state laws in the former Confederacy (the “Black Codes”). The 14th Amendment’s key provisions include birthright citizenship, a broad definition of national citizenship, and the requirement that states provide equal protection of the laws and due process to all persons. It was championed by the Radical Republicans in Congress to enshrine civil rights and to overturn the infamous Dred Scott (1857) decision, which had denied citizenship to African Americans. Over time, the 14th Amendment became a cornerstone for many landmark Supreme Court decisions expanding civil rights and liberties (from racial equality to incorporation of the Bill of Rights against the states).
• 15th Amendment (ratified 1870): Prohibited denial of the right to vote based on race, color, or previous condition of servitude. Despite the 14th Amendment’s promise of equal rights, southern states still sought to bar Black Americans from voting. The 15th Amendment was passed to guarantee African American men the franchise. It reflected the advocacy of abolitionist societies and Reconstruction-era lawmakers to secure political rights for former slaves. However, in practice, many states later undermined this amendment through poll taxes, literacy tests, and other means – problems that would take nearly a century and further federal legislation (and another amendment) to address.

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These three Reconstruction Amendments profoundly altered the Constitution, expanding liberty and equality. They were born out of the exigencies of war and the moral resolve to remake the nation on new foundations. It’s worth noting that they succeeded because a unique super-majority existed after the Civil War – the former Confederate states were temporarily not counted or were compelled to ratify as they rejoined the Union, and northern states overwhelmingly supported the changes. This unique context enabled amendments that might have been impossible in a less unified political climate.

Progressive Era Amendments (1913–1920)

The early 20th century saw a flurry of amendments driven by Progressive Era reform movements aiming to make government more responsive and society more just. Four amendments in the 1910s addressed long-debated issues:

• 16th Amendment (ratified 1913): Authorized Congress to levy an income tax without apportioning it among the states by population. This came after a Populist and Progressive campaign to tax higher incomes; it effectively overturned an 1895 Supreme Court ruling (Pollock v. Farmers’ Loan & Trust Co.) that had struck down a previous federal income tax law. The amendment was born of growing concern about inequality and the need for the federal government to have a stable revenue source beyond tariffs. It showed how a combination of public opinion (many Americans supported taxing the wealthy) and practical fiscal need led to constitutional change.
• 17th Amendment (ratified 1913): Established the direct election of U.S. Senators by the people, instead of senators being chosen by state legislatures. This reform was pushed by Progressives who argued that the Senate had become a “millionaires’ club” rife with corruption and backroom deals in state legislatures. Over several decades, public pressure mounted as reformers and many state governments themselves advocated for direct elections. By the early 1900s, the call for this change was so widespread that Congress finally proposed the amendment. It’s an example of a political movement (for greater democracy and accountability) forcing a structural change in the Constitution.
• 18th Amendment (ratified 1919): Instituted national Prohibition of alcoholic beverages. The drive for Prohibition was led by the temperance movement – a coalition of social reformers, many churches, and women’s groups – which had been growing since the 19th century. By the 1910s, World War I added momentum (with arguments that grain should be used for food, not liquor, and linking alcohol to unpatriotic behavior). The 18th Amendment shows how a passionate social movement can succeed in amending the Constitution, albeit temporarily. (This amendment would later be the only one ever repealed.)
• 19th Amendment (ratified 1920): Granted women the right to vote. This was the culmination of the women’s suffrage movement that had begun in the mid-1800s with leaders like Susan B. Anthony, Elizabeth Cady Stanton, and many others. After decades of advocacy, protests, and state-level victories (some states had already given women voting rights), a broad national consensus finally emerged that denying half the population the vote was unjust. The drive gained crucial support after World War I, as women’s contributions to the war effort underscored their claim to equal citizenship. The 19th Amendment stands as a landmark expansion of democracy, achieved through persistent social activism and changing public attitudes.

Mid-20th Century Changes (1933–1967)

Amendments slowed during the mid-20th century but still addressed important governance issues arising from historical circumstances:

• 20th Amendment (ratified 1933): Shortened the “lame-duck” period by moving the start of new Congressional terms to January 3 and the presidential inauguration to January 20 (from March, as originally set). This reform came during the Great Depression. After Franklin D. Roosevelt was elected in November 1932, the country had to wait four months (until March 1933) for him to take office while the economy crumbled. Public consensus grew that the transition period was too long. The 20th Amendment was a practical fix to make government more responsive and reduce the awkward gap when outgoing officials were inactive or unaccountable lame ducks.
• 21st Amendment (ratified 1933): Repealed the 18th Amendment, ending Prohibition. By the early 1930s, it was clear that Prohibition had failed – it had led to organized crime, speakeasies, and general public disregard for the law, and it deprived governments of tax revenue during the Depression. The call to repeal crossed party and regional lines, uniting a large majority of Americans. The 21st Amendment is notable not only as the sole repeal of another amendment, but also for its ratification process – it was ratified by state conventions rather than state legislatures, the only time that method has been used. This choice was made to speed up ratification and because many state legislators were still elected on “dry” tickets and might not reflect public opinion. The swift repeal of Prohibition underscored that even after an amendment is adopted, public sentiment can reverse dramatically, necessitating another amendment.
• 22nd Amendment (ratified 1951): Limited the President to two terms in office (or a maximum of ten years if finishing part of a predecessor’s term). This amendment followed Franklin D. Roosevelt’s unprecedented four elections to the presidency (1932, 1936, 1940, 1944). After FDR’s long tenure, and once a new Congress dominated by the opposition party (Republicans) came in 1947, there was strong support for formalizing the two-term tradition that George Washington had started. The 22nd Amendment reflected a belief, shared by many across the political spectrum, that no one person should hold too much power for too long, and it showed how a singular historical experience (FDR’s presidency) produced a lasting constitutional change.
• 23rd Amendment (ratified 1961): Gave the District of Columbia the right to participate in presidential elections by allocating it electoral votes (up to the number of the smallest state, which is 3). Washington, D.C., had long been unique: its residents could not vote for President and had no voting representatives in Congress, despite living in the nation’s capital. By 1960, the population of D.C. was large and the denial of a presidential vote was seen as a glaring democratic gap. The 23rd Amendment was a modest step to include D.C. in the electoral college (though D.C. still has no voting Congress members). Its passage during the Cold War era also had symbolic value, as the U.S. sought to demonstrate its commitment to democracy – allowing citizens of the capital city to vote for the nation’s leader was seen as the right thing to do.
• 24th Amendment (ratified 1964): Banned poll taxes in federal elections. Poll taxes had been used in many Southern states as a means to disenfranchise poor African American (and white) voters, since paying a fee was required to vote. By the 1960s, the civil rights movement was in full swing, and there was broad recognition that poll taxes were an unjust barrier to voting. The 24th Amendment outlawed this practice for federal elections (and later, the Supreme Court would extend this principle to state elections as well). This amendment was part of the broader civil rights era push to make the promises of the 15th Amendment (voting rights) a reality.
• 25th Amendment (ratified 1967): Addressed presidential succession and disability. This amendment came on the heels of the assassination of President John F. Kennedy in 1963. It clarified the process for filling a vacancy in the vice presidency (previously, there was no way to replace a Vice President until the next election) and established procedures for the Vice President to serve as Acting President if the President becomes unable to perform duties (for instance, due to surgery or illness). The 25th Amendment had wide bipartisan support as a good-government measure to ensure continuity and stability in the executive branch during emergencies. It has been invoked several times for temporary transfers of power during medical procedures, and Section 2 was used to fill vice-presidential vacancies in the 1970s. This amendment shows how a crisis (the JFK assassination and the Cold War context) focused attention on constitutional gaps that needed to be fixed for the functioning of government.

The Vietnam Era and Modern Amendments (1971–1992)

The most recent amendments reflect the pressures of the Vietnam War era and unique historical anomalies:

• 26th Amendment (ratified 1971): Lowered the voting age from 21 to 18 for all elections. The slogan “old enough to fight, old enough to vote” encapsulated the driving force behind this change – during the Vietnam War, young Americans were subject to military draft at 18 but in many states could not vote until 21. There was a strong youth movement and broad public agreement that this discrepancy was unfair. In 1970, Congress tried to mandate a lower voting age by statute, but the Supreme Court (in Oregon v. Mitchell) ruled that Congress could only lower the voting age for federal, not state, elections. This situation virtually required a constitutional amendment to create a uniform rule. The 26th Amendment was passed by Congress and ratified by the states with remarkable speed (it became the fastest-ratified amendment in U.S. history) – demonstrating that when an issue has overwhelming consensus, the Article V process can still move quickly.
• 27th Amendment (ratified 1992): This amendment bars any law that changes the compensation of members of Congress from taking effect until after the next House election. The story of the 27th Amendment is unusual: it was originally proposed in 1789 as part of James Madison’s package of amendments (what became the Bill of Rights) but was not ratified by enough states at that time. It lingered dormant for nearly 203 years until the 1980s, when a university student’s research project reignited interest in it. Ultimately, more states ratified it, and in 1992 it crossed the required threshold to become part of the Constitution. The 27th Amendment’s content was not controversial in modern times – it essentially prevents Congress from giving itself an immediate pay raise – but the amendment’s extremely delayed ratification raised interesting legal questions. (Congress eventually recognized it as valid, given that Article V does not impose an explicit time limit unless Congress sets one.) While not indicative of the typical amendment process, the 27th Amendment underscores that amendments can still happen under unusual circumstances, and that an idea from the Founding era can become law in the 20th century if the conditions allow.
• Failed Amendments and Modern Attempts: Since 1992, no new amendment has been added, marking one of the longest stretches in U.S. history without a constitutional change. Several high-profile amendment efforts have failed in the late 20th and early 21st centuries. The most noteworthy was the Equal Rights Amendment (ERA), which aimed to guarantee equality of rights regardless of sex. Congress approved the ERA and sent it to the states in 1972 with a seven-year ratification deadline. Initially, it gained rapid support and 35 of the needed 38 states ratified it. However, a conservative backlash led by activists like Phyllis Schlafly mobilized opposition, and no additional states ratified before the deadline (Congress extended the deadline to 1982, but it still fell short). In recent years, a few more states symbolically ratified the ERA long after the deadline, sparking debate about whether it could still be adopted, but as of now it remains unratified and its future is legally uncertain. Other attempts have included the District of Columbia Voting Rights Amendment (proposed in 1978 to give D.C. full representation in Congress, it expired in 1985 far short of ratification), various versions of a balanced budget amendment (a perennial proposal, sometimes passing one house of Congress but never fully adopted), amendments to ban flag burning or prohibit same-sex marriage, and more. These failures highlight how difficult it has become to achieve the broad consensus needed for amendment, especially on divisive social or political issues.

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Patterns of Constitutional Change: Historically, formal amendments often occur in response to a broad consensus or clear necessity, rather than narrow partisan interest. The successful amendments tend to either expand rights (Bill of Rights, 15th, 19th, 26th, etc.), adjust governmental structure or procedure with wide agreement (12th, 20th, 22nd, 25th), or correct Supreme Court decisions or constitutional defects that virtually everyone recognizes as problematic (11th, 16th, 27th). They also tend to come in waves during or after major national events (the Civil War, the Progressive Era, the civil rights movement). In contrast, proposed amendments that lack overwhelming public support or that engender regional and partisan splits have not succeeded. In recent decades, American society has been politically polarized on many issues, making it extremely challenging to gather the supermajorities required in Congress and the states. Thus, while amendments were relatively frequent in the 18th, 19th, and early 20th centuries, they have become rare in the modern era.

Supreme Court Influence on the Amendment Process

The Supreme Court’s role in the Article V process is limited, but at key moments the Court has interpreted aspects of how amendments are proposed and ratified. Several important rulings have shaped our understanding of Article V:

• No Presidential Veto: In one of the earliest cases, Hollingsworth v. Virginia (1798), the Supreme Court made clear that the President has no formal role in the constitutional amendment process. When Congress proposes an amendment, it does not go to the President for signature or veto. Article V doesn’t mention the President, and the Court confirmed that proposing amendments is a power the Constitution gives directly to Congress and the states, bypassing the usual law-making process.
• State Legislature Authority vs. Referenda: In Hawke v. Smith (1920), the Court struck down an Ohio state provision that allowed the people to veto the state legislature’s ratification of a federal amendment via referendum. The Supreme Court held that when Article V says an amendment shall be ratified by state “Legislatures” or “Conventions,” it means those bodies alone act in the federal amendment process. A state can’t alter the process by adding a referendum or any other step not specified in Article V. This affirmed the principle that Article V creates a federal function for state legislatures – one in which they derive authority from the U.S. Constitution’s mandate, not from their state constitutions or laws. Similarly, in Leser v. Garnett (1922), the Court rejected challenges to the ratification of the 19th Amendment, making it clear that if an amendment is properly ratified by the requisite states, it is valid nationwide regardless of any state-level procedural quirks or prior state laws. Once the constitutional criteria are met, an amendment’s legitimacy cannot be undone by states.
• Proposal Power of Congress vs. Convention: While no case has directly involved a state-called Article V convention (since none has occurred yet), the Supreme Court has recognized the equal validity of both methods of proposal. In United States v. Sprague (1931), the Court stated that Article V’s methods are clear and that Congress’s choice of ratification method (legislatures vs. conventions) is entirely discretionary and not limited by the subject of the amendment. This case arose when some argued that the 18th Amendment (Prohibition) should have required state conventions because it affected individual rights; the Court flatly said Article V doesn’t differentiate — any amendment can be ratified by either method as long as the chosen method is followed. Essentially, Sprague underscored that Article V means what it says: if the formal procedure is adhered to, the substantive nature of the amendment is irrelevant to its validity.
• Reasonable Time for Ratification – Deadlines: Article V does not specify how quickly states must act on a proposed amendment, but the Supreme Court has weighed in on whether amendments can hang open indefinitely. In Dillon v. Gloss (1921), the Court opined that the amendment process was intended to be completed within a “reasonable time” to reflect a contemporaneous consensus. That case upheld Congress’s power to set a time limit for ratification (Congress had, for the first time, placed a seven-year deadline in the text of the 18th Amendment’s resolution). The Court noted that an amendment’s adoption should be relatively timely so that the political will behind it is roughly the same among the states ratifying. Since then, most proposed amendments have included a seven-year ratification deadline (the ERA being a notable example). However, Dillon also left some questions open: it implied a time limit is not absolutely required, just that Congress may impose one.
• Ratification Timeframe and Political Questions: In Coleman v. Miller (1939), the Supreme Court faced the issue of a very old pending amendment – the Child Labor Amendment, proposed in 1924 without a deadline. A state (Kansas) ratified it about 13 years later after initially rejecting it, raising questions: Was the amendment still open for ratification? Could a state change from rejecting to ratifying? Did long delay invalidate earlier ratifications? The Court essentially dodged the core issues by declaring them political questions not suitable for judicial resolution. The justices said that it was up to Congress to determine whether an amendment, ratified long after proposal, was still viable or whether the ratifications were too late. In effect, Coleman suggested that if Congress hasn’t set a deadline, an amendment remains pending and Congress, when receiving new ratifications, can decide whether to count them. The Court also signaled that issues like states rescinding prior ratifications or the “staleness” of amendments involve political judgments (considering “a great variety of conditions, political, social and economic”) beyond the judiciary’s purview. This deferential stance was important decades later when the long-dormant 27th Amendment was finally ratified — Congress accepted it despite the long gap, consistent with Coleman’s logic that it was a matter for Congress.

In summary, Supreme Court rulings on Article 5 of the constitution have mostly reinforced the primacy of the written procedure and the authority of Congress and states in that process, while keeping the courts out of deciding substantive political questions about amendments. The judiciary ensures that the rules (proper bodies voting, correct numbers reached) are followed, but it does not second-guess the content of amendments or the timing unless Congress has clearly prescribed a condition. Once an amendment is properly ratified, the Court treats it as an integral part of the Constitution. For example, after the 16th Amendment was ratified, the Supreme Court immediately recognized Congress’s new power to impose income taxes. Similarly, challenges to properly adopted amendments (like prohibition or women’s suffrage) were swatted away – the Court respects the outcome of Article V as the ultimate expression of constitutional authority.

Originalism vs. Living Constitutionalism: Evolving Views on Change

The difficulty or ease of amending the Constitution plays into broader philosophical debates about constitutional interpretation. Two major schools of thought offer conflicting viewpoints on how the Constitution should adapt over time: originalism and living constitutionalism. Each views Article V’s role in constitutional change differently:

Originalist Perspective: Originalists believe the Constitution’s meaning is fixed as of the time of enactment (or amendment) and that changes to that meaning should occur through the formal Article V process, not through judicial reinterpretation. From an originalist viewpoint, Article V’s stringent requirements are a deliberate feature to ensure that any change has overwhelming democratic legitimacy. Originalists often praise the Article V process for protecting the Constitution from whims and transient majorities. They argue that if societal values genuinely shift enough, the people will be able to amend the text, as has happened in the past for significant issues (for instance, ending slavery or extending suffrage required amendments because those were fundamental changes). A classic originalist stance, articulated by the late Justice Antonin Scalia, is that the Constitution is “not a living document, it’s dead, dead, dead” – meaning it does not evolve on its own through interpretation; rather, it should be changed by amendment if the people desire new provisions. Originalists point to the amendment process as the proper democratic outlet for updating the Constitution: for example, if Americans want to overturn a Supreme Court decision or add a new right, they should do the hard work of building consensus for an amendment. They often lament what they see as a decline in using Article V. Some scholars suggest that because formal amendment is so difficult, there has been pressure on courts to “interpret” new meanings into the old words – something originalists view as an illegitimate shortcut. In summary, originalists hold Article 5 of the constitution in high regard as the sole legitimate mechanism for change, and they believe the rigidity it imposes is important to maintain the rule of law and the original principles of the Constitution until the people decide to change them through the supermajoritarian process.

Living Constitutionalist Perspective: Living constitutionalists, on the other hand, argue that the Constitution’s interpretation can and indeed must evolve to meet contemporary needs, often without formal amendments. They don’t necessarily oppose Article V’s existence – indeed, they celebrate many amendments as advancing justice – but they point out that Article V is an extremely high bar, one that in modern times is almost insurmountable for all but the least controversial matters. Living constitutionalists tend to emphasize that the judiciary, through constitutional interpretation, and the political branches, through new laws and practices, have “adapted” the Constitution in ways that the Article V process has not. For example, the Constitution has only been amended 27 times, but the nation has seen enormous social and technological change over 230+ years. Many of those changes – such as the expansion of rights to privacy, racial integration, one-person-one-vote in legislative apportionment, etc. – were accomplished by Supreme Court interpretation of broad phrases like “equal protection” or “due process,” not by adding new amendments each time. Living constitutionalists often contend that expecting formal amendments for every necessary change is unrealistic; the amendment process is so onerous that without a more flexible interpretive approach, the Constitution might become hopelessly outdated or fail to protect modern values. They sometimes cite Thomas Jefferson, who believed each generation might need its own constitution, to argue that a static view is dangerous. Instead of re-writing the document every 20 years (which Jefferson mused about), American constitutional development has often relied on reinterpretation of existing clauses. Critics of this approach (often the originalists) say it allows unelected judges to “amend” the Constitution informally. Living constitutionalists respond that the judiciary operates within constraints and often reflects evolving societal consensus – for instance, by the time Brown v. Board of Education (1954) outlawed segregated schools, the country’s views on segregation had substantially shifted from the era of Plessy v. Ferguson (1896). And in areas where Article V did prove workable (like the civil rights movement leading to the 24th and 26th Amendments), living constitutionalists welcome those changes too. Essentially, living constitutionalists see Article V as only one part of a broader, organic process of constitutional change, whereas originalists see Article V as the exclusive legitimate path for change.

Reconciling the Two?: The tension between these views is an ongoing feature of constitutional discourse. Originalists worry that bypassing Article V undermines the very idea of a constitution by allowing its meaning to drift without the people’s formal consent. Living constitutionalists worry that clinging strictly to Article V – which they consider almost “too difficult” now – would freeze the Constitution in the 18th or 19th century and ignore the practical reality that amendments can’t keep up with a changing society. For example, rather than pass an amendment for every new technology affecting free speech or privacy, courts have interpreted the First and Fourth Amendments to cover things like the internet or electronic surveillance, applying old words to new contexts. In one sense, Article V’s difficulty has indirectly given the courts a larger role in updating constitutional norms, fueling the living constitution approach. Meanwhile, whenever there is a push for a formal amendment on a controversial issue, you often see this philosophical divide: one side says “change the Constitution to reflect modern values” and the other says “either stick to the original meaning or achieve a consensus broad enough to amend, otherwise don’t change it at all.” This debate also surfaces in arguments over how to respond to Supreme Court decisions. If the Court issues a ruling that many disagree with (say on campaign finance, or flag burning, or voting rights), one approach is to push for an amendment to overturn it, and another approach is to hope that the Court’s composition changes and the interpretation shifts – the latter being essentially a “living” approach via the judiciary.

In conclusion on this point, Article V stands as a testament to the Framers’ belief in a deliberate, thoughtful process for constitutional change. Originalists today echo that belief, insisting on its use for any substantial change. Living constitutionalists respect the amendment process but view it as a tool that has been used only sparingly, with the heavy lifting of constitutional adaptation happening through interpretation. Both perspectives agree that Article V is important – it’s just a question of whether it should be the primary engine of change or more of a constitutional backstop when interpretation alone cannot accomplish a needed reform (such as giving women the vote or lowering the voting age, which clearly required text changes).

Modern Challenges to Amending the Constitution

Amending the Constitution in the 21st century is widely regarded as a daunting endeavor. Several modern factors make the Article V hurdles even higher:

• Partisan Polarization: The United States is deeply polarized along partisan and ideological lines. To achieve a constitutional amendment, a proposal must have broad bipartisan appeal to get two-thirds of Congress and then win support in a diverse array of states representing three-fourths of the nation. In today’s climate, few issues attain that level of cross-party consensus. Even if a majority of Americans favor some change, if that majority is mostly from one political camp, the minority camp can usually block it either in Congress or in enough state legislatures. For instance, proposals like a balanced budget amendment or a campaign finance reform amendment tend to be championed by one party and opposed by the other, making it extremely hard to reach the supermajority threshold. The near-impossibility of amending the Constitution without bipartisan unity means that, in practice, only relatively uncontroversial matters or structural tweaks stand any chance.
• Alignment of Government and States: In earlier eras, one political coalition sometimes held overwhelming power (for example, the Republican Party during Reconstruction, or a broad progressive coalition during the 1910s), which allowed amendments to advance. Today, power is more evenly (and bitterly) divided. It’s rare for the same party or ideological group to control two-thirds of both houses of Congress. And even if it did, three-fourths of state legislatures would need to approve – but about half the states are dominated by the opposite party in any given period. This division provides multiple veto points. In effect, our federal system means that a relatively small minority of states (just 13 states can block an amendment) can thwart proposals even if those states represent a minority of the population. For example, an amendment could be supported by states covering, say, 80% of Americans, yet if the other 20% of Americans (mostly in 13 small states) disagree, those 13 states can prevent ratification. This disproportionate possibility was intentional to protect smaller states’ interests, but in a highly partisan era, it translates into one party’s base states being able to veto the other’s favored amendments.
• Public Apathy or Caution: Another modern challenge is simply a political culture that is cautious about tampering with the Constitution. The Constitution is venerated, and there is a reluctance to open it up unless absolutely necessary. Many Americans, while possibly unhappy with certain outcomes (like controversial Supreme Court decisions), are still nervous about amending the Constitution. The fear of unintended consequences or a “slippery slope” can dampen popular movements for amendments. For instance, there might be broad dislike of the influence of money in politics, but the idea of amending the First Amendment’s speech protections to regulate campaign spending raises concerns and has not gained enough traction to seriously approach ratification. In short, convincing everyday citizens (and their state representatives) that a constitutional amendment is needed is a high bar – most issues are addressed via normal legislation or elections, and the public often sees amendment campaigns as extreme or unlikely to succeed, which can become a self-fulfilling prophecy.
• Procedural Barriers and Uncertainty: The process of a state-initiated convention, in particular, is seen as untested and potentially risky. Even if the requisite 34 state applications are reached, there are questions about how the convention’s delegates would be chosen, whether its agenda could be limited, and what rules would govern its operation. The prospect of a wide-open convention (sometimes pejoratively called a “constitutional convention,” though technically it would be limited to proposing amendments) raises anxiety that it could propose sweeping changes beyond the initial issue – a so-called “runaway convention.” The lack of precedent makes this route politically and legally uncertain. This fear has been a barrier even to those who might support one specific amendment – they worry about opening Pandora’s box. In Congress, there are also procedural hurdles: even getting a two-thirds vote in both chambers means overcoming Senate filibusters, party leadership hesitations, and prioritization (Congress is often consumed with immediate issues and rarely spends time debating amendments that are seen as long shots). Moreover, if an amendment is proposed, the mechanics of ratification come into play: Congress sometimes sets a deadline, and coordinating 38 state approvals (often via 50 different state political battles) is a huge undertaking. Interest groups must mount 50-state campaigns, and opposition groups have many opportunities to stop the amendment in at least one chamber of one key state. All of these procedural complexities mean that an amendment drive must be extraordinarily well-organized and sustained to succeed today.

Despite these challenges, it’s important to note that amendments are not impossible in modern times – just very rare. The 26th Amendment in 1971 demonstrated that a clear, uncontroversial principle (18-year-olds voting) could sail through. The 27th in 1992, while atypical, showed that sometimes an idea can come to fruition in unexpected ways. If an issue arose that genuinely united a supermajority of Americans across the spectrum (for example, if there were a consensus on an amendment to fix a structural problem that both parties agreed on), it could happen. But so far in the 21st century, no issue has met that description. Even proposals that poll well nationally can falter due to partisan framing or regional differences.

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Prospects for a Future Convention or Major Amendment

Given the historical record and current conditions, how realistic is a new constitutional convention or a major amendment in the near future? It remains a subject of debate, with arguments on both sides:

Another Article V Convention? The idea of an Article V convention – where states initiate a convention to propose amendments – has gained some momentum recently in certain political circles. For decades, this was mostly a theoretical discussion, since as of yet the United States has never held such a convention under the Constitution. However, in the past few years, several campaigns have pushed for it. The most prominent is a conservative-led effort for a balanced budget amendment: as of today, legislatures in about 28 states have passed resolutions calling for a convention to draft a balanced budget requirement for the federal government. The threshold for Congress to be forced to call a convention is 34 states, so they are not terribly far off – only six more state legislatures would need to join. Advocates argue that Washington will never discipline its own spending, so the states must step in with an amendment. There are also groups calling for a broader convention (sometimes dubbed a “Convention of States”) to consider multiple amendments aimed at restraining federal power – such as term limits for Congress or imposing fiscal constraints. On the other side, many observers, including constitutional scholars and public interest groups, are wary of an Article V convention. They warn that once convened, a convention might not stick to its stated agenda and could propose sweeping changes to the Constitution (potentially altering the amendment process itself or core provisions like the Bill of Rights). This fear of a runaway convention has historically been a powerful deterrent; even states that might like a balanced budget amendment often hesitate to actually trigger an unprecedented convention. There’s also ambiguity on whether states can limit their convention delegates to a single issue, and who would even set the rules – would Congress do so in the enabling legislation, or would the convention set its own rules? Because these questions have no clear answers, a convention is seen as a leap into the unknown.

Considering the landscape, a limited-purpose convention is not completely out of the question. If one party were to dominate state legislatures sufficiently (for example, if a few more Republican-leaning states join the calls while that party controls a majority of state legislatures), the 34-state mark could be reached for something like a balanced budget amendment. Should that happen, Congress and the states would venture into uncharted territory. It’s possible Congress would preemptively propose the amendment itself to avoid the unpredictability of a convention (this “preemption” happened historically: the push for direct election of senators via a convention got close to the threshold in the early 1900s, which pressured Congress to act and propose the 17th Amendment directly). Thus, even the threat of a convention can spur federal action.

If a convention were called, the proposals it passes would still require 38 states to ratify, providing a check on extreme outcomes. Nonetheless, the political climate would be intense. Right now, the realistic likelihood of an Article V convention in the near future seems low, but not zero. It largely depends on state-level politics and whether advocates can convince a handful more states to sign on, all while opponents rally efforts to rescind applications or discourage additional ones. In short, a convention is a remote possibility that grows a bit more plausible if partisan control of state governments remains lopsided in one direction and if public dissatisfaction with federal gridlock or finances continues to mount.

Major Amendment by Congress? What about the more traditional route – Congress proposing an amendment on a major issue? In the contemporary environment, it’s difficult to see Congress mustering two-thirds support on topics that lack broad bipartisan agreement. Still, there are scenarios that could lead to an amendment drive:

• A response to a Supreme Court decision: Sometimes a controversial Supreme Court ruling ignites a call for a constitutional amendment to override it. For example, the 2010 Citizens United decision (expanding political spending rights for corporations) led to proposals for a campaign finance amendment. Similarly, some groups have called for an amendment to overturn Roe v. Wade (before it was overturned by the Court itself in 2022) or to enshrine certain rights like reproductive rights now that the Court has left them to the states. However, while these ideas galvanize activists, they have not come close to the two-thirds consensus in Congress. Typically, one party favors the amendment and the other vehemently opposes, making it a non-starter at the congressional level.
• Structural reforms: There is periodic discussion of structural amendments, such as imposing term limits on members of Congress, altering the Electoral College, or clarifying the presidential election process. Term limits for Congress, for example, are popular in opinion polls and have been championed by various politicians. In the 1990s, as part of the “Contract with America,” the House actually voted on a term limits amendment but it did not reach the two-thirds threshold. Electoral College reform (moving to a popular vote for President) is another idea often floated, especially after elections where the popular vote and electoral vote diverge. Yet, the hurdle here is obvious: smaller states and swing states benefit from the current system and would likely refuse to ratify a change that reduces their influence. Thus, even if Congress proposed such an amendment (which is unlikely itself), ratification would be very doubtful. Another structural idea is a constitutional amendment to set Supreme Court term limits or other judiciary reforms – which again would require bipartisan agreement that is currently lacking.
• Broad national consensus issues: If an issue emerges that unites Americans across typical partisan lines, Congress might act. For instance, if in the future there is near-universal agreement on something like a balanced budget requirement (this used to have some bipartisan support in the 1980s and 1990s), it could possibly advance. In the mid-1990s, a balanced budget amendment actually passed the House and fell just one vote short in the Senate. Those conditions—unified Republican support and a significant number of Democratic votes—were rare. In today’s politics, that specific issue still divides opinion (concerns about hamstringing government response to recessions, etc., have dampened some support). But the example shows that under the right circumstances (concern over rising national debt combined with broad public pressure), it’s not inconceivable for Congress to revisit it.

In general, any successful amendment in the near future would likely have to be relatively narrow and clearly beneficial to the democratic process itself, so that opposition would be hard to justify. One could imagine, for example, an amendment to clarify some ambiguous constitutional process that both parties have struggled with. The 25th Amendment on succession had that character in the 1960s. In recent times, discussions about clarifying the line of succession beyond the Vice President or cleaning up constitutional ambiguities in the Electoral Count Act (the law that governs Congress’s counting of electoral votes) have been mentioned. However, most of those issues can be resolved by statutes rather than amendments, and lawmakers usually prefer the easier path of a statute if possible.

Public Opinion and Social Movements: It’s worth noting that many past amendments succeeded because a strong social movement created undeniable momentum (e.g., women’s suffrage, civil rights, youth voting rights). If a future social or generational movement were to gain overwhelming support for a clear constitutional change, politicians would face pressure to act. For example, if over time there was a massive groundswell for an amendment addressing climate change or protecting digital privacy rights, and it gained support across many states, that could drive an amendment. Right now, most movements find avenues in legislation or court cases rather than the slow amendment route. But public opinion can shift unexpectedly, and if an issue becomes both critical and consensual, Article V could be invoked.

Likelihood in the Near Future: All told, the near-term likelihood of another major amendment or convention is relatively low. The last few decades have shown how difficult it is: popular proposals like the ERA or DC statehood stalled, and even responses to perceived problems (like campaign finance reform or balancing budgets) have not cleared the high bar. The political polarization and the multiple veto points (Senate filibuster, partisan state legislatures, etc.) make it hard to envision the kind of sweeping consensus needed. Incremental changes are more likely to happen through laws and court decisions than through formal amendments in the short run.

That said, history has its surprises. The Constitution itself has survived and adapted in part because the amendment process, while slow, is available when absolutely needed. A major national crisis or a dramatic political realignment could revive the amendment process. For instance, the experience of the Civil War and Reconstruction fundamentally altered the Constitution with three amendments in five years – something no one would have predicted a decade earlier. We can’t entirely rule out a scenario where, say, the states call a convention out of frustration with federal dysfunction, or where a galvanizing issue unites left and right in a demand for reform. If the Article V convention route ever does occur, it would be a historic event with unpredictable outcomes, but ultimately any proposals it produced would face the same ratification gauntlet.

In conclusion, while the constitutional amendment process remains available, it is constrained by design and even more by modern political realities. The Framers intended Article 5 of the constitution to allow change but only with a strong consensus. Today’s environment rarely produces such consensus on major issues. Therefore, any talk of new amendments or conventions is met with both skepticism and caution. In the near future, a sweeping constitutional convention or amendment is not impossible, but it would likely require an extraordinary convergence of public will, political leadership, and cross-partisan agreement that is difficult to see on the horizon. The more probable outlook is that the Constitution will continue to change informally – through interpretation and evolving norms – unless and until a truly unifying issue or crisis demands formal amendment. The amendment process, as Article V envisions, remains a crucial part of the constitutional system, even if it is infrequently used: it is the mechanism by which the American people, at the highest level, can alter their fundamental law, and its existence can influence political behavior (as seen by the pressure campaigns for amendments). Whether America will experience another burst of amendment activity or a convention is uncertain, but understanding Article V’s history and challenges helps explain why such changes are so rare and significant when they do occur.