Article V of the Constitution | US government and civics | Khan Academy

Hey, this is Kim from Khan Academy, and today I'm learning about Article 5 of the U.S. Constitution, which describes the Constitution's amendment process. To learn more about Article 5, I talked to two experts: Professor Michael Rappaport, who is the Darling Foundation Professor at the University of San Diego School of Law, where he also serves as the Director of the Center for the Study of Constitutional Originalism; and David Strauss, who's the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago Law School and author of The Living Constitution.

Professor Strauss, Article 5 provides this process for amending the Constitution. Can you take us through that process a little bit? How does it work?

The quick description of the process is it's really hard. It's really hard to amend the Constitution. There are actually a couple of different processes that are laid out in Article 5, but only one has ever been used. Amendment starts in Congress; two-thirds of each house of Congress, two-thirds of the House of Representatives and two-thirds of the Senate, has to approve the amendment. Then it goes to the states, and three-quarters of the states have to approve the amendment. So you have to have a really strong consensus in order to get the Constitution changed that way.

So, Professor Rappaport, take us through this process of amending the Constitution. Why did the framers set it up this way?

The framers gave a good bit of thought to coming up with an amendment process because they recognized that the Constitution might need to be changed over time, either because there were problems with it that weren't anticipated or because circumstances or values changed. So there are two steps to the amendment process: for an amendment to go into the Constitution and become part of the Constitution, it has to be both proposed and ratified.

On the proposal side, Congress can propose; alternatively, a proposal can come from the action of the state legislatures. So if two-thirds of the state legislatures say, “We'd like to have a constitutional convention to propose an amendment,” there's two parts of that. Obviously, the state legislatures have got to want it, and then you get the calling of a constitutional convention. Okay, that's the proposal side.

There's also the ratification side, which is a little bit simpler. You need three-quarters of the states to ratify a constitutional amendment, and they can ratify it either through the actions of the state legislatures or the actions of state conventions, which are special bodies elected to decide one question: whether or not to ratify that proposed constitutional amendment.

This is fascinating! I actually had no idea about the two-thirds of the state legislatures being able to propose a constitutional amendment. How often does that happen?

It has never occurred throughout our history, although a couple of times there were actions taken to sort of move in that direction. But we've never actually had a constitutional convention that has proposed any amendments. It's important to go into why the framers would have set up the system the way they did. The most usual situation is for Congress to propose the amendments, and that's happened in all of the 27 amendments which have been ratified.

But what happens if Congress is the problem? What happens if the Congress is usurping power or standing in the way of changes that are important or need to be reformed? You can't count on Congress to want to reform itself. So what they did was to have this alternative mechanism which would bypass Congress, and that alternative mechanism was the constitutional convention. So the state legislatures propose, apply for it, and then the separate entity, the constitutional convention, makes a proposal. They were quite explicit in discussing this; they wanted this as an alternative to Congress.

So was this on purpose, that they made it very difficult to amend the Constitution?

Well, it sure seems like it. Now, of course, we don't know back then what they had in mind—whether they thought, “Well, the House, the Senate, the states, they'll all run by the same kind of people and they'll kind of agree on things.” Maybe they thought that; we just don't know. But whatever they were thinking, what they gave us was a very difficult process to get through.

So how long was it from the period when the Constitution was first ratified to the first amendment to the Constitution beyond the Bill of Rights?

Okay, so the first 10 amendments were ratified in 1791, and then just a mere three years later, we had the 11th amendment. There was an 11th amendment in 1798 to correct a really kind of technical problem that the Supreme Court did something that the framers really didn't anticipate it would do, didn't want it to do, and the 11th amendment was adopted to correct that. The 12th amendment was adopted in 1804 after the really kind of disaster in the election of 1800 when there was a tie in the Electoral College. The framers had not foreseen the rise of political parties, and political parties made the system for electing the president very difficult to work with.

But then there was nothing—nothing until after the Civil War. After the Civil War, there were three amendments, then nothing again, really, until the Progressive Era in the early 20th century when there were again a bunch of amendments, and then after then, things have sort of paled off. So we really see these kind of, as I said, these kind of waves in our history.

What do you think brings those waves on? Why are there some eras when there are lots of constitutional amendments and other eras when there's nothing?

Well, come here, I'm going to say something I think some people will disagree with, but I think it's right, and that is that I don't think the process of amending the Constitution has really been the way we actually change it. I think what happens is just because the amendment process is so difficult, we've worked out other ways of changing things. So amendments come along sometimes because a change has already happened, and people decide, “Well, let's put it in the Constitution just so we can kind of have official recognition of it.” But a lot of times changes happen, and they're a little bit too controversial to get into the Constitution, but they seem pretty solid and pretty secure, so we just don't— I guess it's fair to say we don't bother to amend the Constitution or don't want to go through the process of amending the Constitution very often.

People's values may change or they may differ from what's in the Constitution, and it may take a time or circumstances— they may finally occur that crystallize this desire to change the Constitution. And all of a sudden, the opportunity is there, and people can suddenly pass a constitutional amendment. It's only going to occur during certain circumstances, especially when there's strong support for it.

Very interesting! Yeah, so it's unlikely that we're going to have a constitutional amendment any time in the near future. When was the last constitutional amendment?

So, the simple answer to that is in 1971, we got the 26th amendment. That was both proposed and then remarkably, in its all-time record, proposed and ratified in three months and eight days, and that was the amendment that guaranteed the right to vote of 18-year-olds.

Ah, right, so sort of as a response to the Vietnam War?

Yes, yes. But there actually has been one additional amendment, the 27th amendment.

Right, so why isn't that the most recent one?

Well, here's the funny thing about it: the 27th amendment was proposed as part of the original Bill of Rights in 1789. So this amendment was proposed in 1789, ratified in 1992, so it took 202 years.

Interesting! And what's the 27th amendment about?

That has to do with congressional salary increases. It basically says if Congress wants to raise its own salary, the increase can't take effect until the next election. So it basically gives the voters a chance to say, “Hey, we don't like what you did; we're going to vote you out of office for increasing your salary.”

One thing that strikes me about Article 5 and just the fact that the founders included an amendment process altogether, it seems very humble and farsighted to include a way for the document itself to evolve. Do you think that the framers approached the Constitution with the idea that there were things in the future that they just wouldn't be able to anticipate?

They had before them, and were acutely aware of a history in which efforts to establish governments had failed. They were really trying to work with that and make sure they didn't do the same thing. So they knew what a hard job they were embarking on, and they made it clear. There's a famous passage in which James Madison said, “Look, we know a lot of these provisions that we're writing in the Constitution, their meaning is unclear, and their meaning will have to be”—his phrase was—“liquidated,” which is to say people have to figure out what this means, because we know what we're giving you is unclear in some ways. So, yes, absolutely, they knew there were things that they could not anticipate.

The framers themselves weren't in agreement on what freedom of speech means. You know, some of them enacted, voted for, and got enacted laws that restricted speech in ways that we would find intolerable today; we'd say they violate the First Amendment. But here you had some of the guys who drafted the First Amendment voting for those laws.

So near the end of Article 5, there's this kind of long-winded clause that says, “No amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth section of the first article.” Now, if I'm cross-referencing this correctly, what they're really saying here is you can't make any amendments about slavery. So why is this here, and why are they talking around it so obliquely?

The interesting thing about this is, what did they do? They basically said for 20 years, there's not going to be any amendments that are going to speak to the slave trade. The Constitution is very, let's say, shy about using the term slavery or referring to slavery. It actually never actually refers to the term slave. There's a variety of thoughts about what was going on, but one very common view about this is that the Constitution was sort of a little bit embarrassed—that the framers were a little bit embarrassed or at least some of the framers were embarrassed about it—and so they didn't want to make reference to it too explicitly. They might have been a little bit worried about what the verdict of history would be. So they knew on some level the sort of immorality of slavery, but there it is right there in Article 5, and there are other places in the Constitution too where they don't use the word, but what they're doing is protecting slavery.

Now, they did have amendments to the Constitution about slavery and about, as you say, equal citizenship and voting. But, you know, the 14th amendment, providing equal citizenship, that was pretty much nullified in most respects for a large part of our history. States found a way to get around that. The 15th amendment was also something that was just not very effective in preventing African Americans from being denied the vote. Yes, there are provisions in the Constitution that are there, and you can invoke them, and you can rely on them, but if you just look at the text of the Constitution, I think you get a misleading impression about how the Constitution in our history has actually worked.

Now, this is a very good point because I think one of the hardest things for students of U.S. history to understand is how is it possible that after the 14th amendment was passed, things like Jim Crow happened? And I guess the answer is the Constitution is only in force if it's enforced.

Kim, that's exactly right! It's words on a page. You know, the text is fine; it can say all the right things, but the institutions and the popular will have to be in place to make something of those fine words.

Interesting! So how do you think our government might be different if the Constitution didn't include this amendment process?

I don't think it would have been that different just because Article 5 gives us such a hard process to go through. Just because it's so hard to amend the Constitution, we figured out other ways to change the Constitution in practice. Even if the words on the page are the same, I think if there were no Article 5, we would have found a way to get to where we wanted to get to as a country by those means: by legislation, by presidential action, by Supreme Court decision, and just by the people in their lives saying, “You know, we need to go in this direction. We need to go, say, in the direction of women's equality.” By the way, there's no amendment giving women equal rights either, but that's where we've gotten to, and I think that would have been the pattern if there were no formal amendment process.

There's a second way in which you could have constitutional change, which is you could simply say, “All right, this Constitution was pretty good for a while; it's now outlived its usefulness. Let's have a new Constitution.” That would seem like a very radical big thing to do. Virtually no one proposes that at the federal level, but in the states, lots of states have changed their constitutions—not simply passed a constitutional amendment, but just gotten rid of the whole old constitution and adopted a new one. That's happened many times. So if we didn't have a constitutional amendment process, it's quite possible that that's exactly what we would have seen at the federal level.

Yeah, this is really fascinating because we really think a lot about what the framers intended. You know, for certain amendments—for example, freedom of speech, freedom of religion—what did they really mean by those things? But if we had just kind of every now and again said, “Okay, we're done with that; let's do a new constitution,” we wouldn't necessarily have that debate. We would just say, “Okay, this is what we meant at the time.” Famously, Thomas Jefferson said, “Oh, you know, it's really not right to have a constitution that's going to continue over time and bind future generations, so we ought to have a new constitution every 19 years when there's a new generation.” His close friend James Madison had to disagree with him and basically said, “Look, I understand why you're saying that, but you also have to realize the incredible disruption that would cause.”

Every 20 years, people wouldn't be able to rely on the existing rights that are in the Constitution because they would know that in a certain period of time, new ones would be enacted. We had that debate. Madison won in the sense that the U.S. Constitution is supposed to last for a long-term period; there's no 20-year limit on it. One of the things that's been beneficial for the United States as a result of that is that we've inherited these constitutional rights that people have a lot of reverence for.

So we've learned that there are two ways to amend the Constitution: through Congress or through a special constitutional convention called by the states. Either way, adding an amendment to the Constitution is really difficult to do. So much so that the American people have only, in special circumstances, used a constitutional amendment to affect social or political change.

To learn more about Article 5, visit the National Constitution Center's interactive Constitution and Khan Academy's resources on U.S. government and politics.