Constitutional amendments are ratified through a two-step process set out in Article V: Congress proposes an amendment by a two-thirds vote of both the House and Senate, and the proposal becomes part of the Constitution once three-fourths of the states (currently 38 of 50) approve it. The bar is deliberately high. Since 1789, Congress has sent 33 amendments to the states and only 27 have crossed the finish line.1Constitution Annotated. Proposed Amendments Not Ratified by the States
How Congress Proposes an Amendment
Article V gives two ways to propose an amendment. The one that has always been used requires a joint resolution passed by two-thirds of the members present in both chambers of Congress.2Constitution Annotated. ArtV.1 Overview of Article V, Amending the Constitution This resolution does not go to the President. In the 1798 case Hollingsworth v. Virginia, Justice Chase wrote that “The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.”3Legal Information Institute. Hollingsworth v Virginia The amendment process belongs to Congress and the states.
The second method lets two-thirds of state legislatures apply to Congress for a national convention to propose amendments.4National Archives. Article V, US Constitution No such convention has ever been called. Nearly every state except Hawaii has submitted at least one application over the years, on topics ranging from a balanced budget requirement to congressional term limits, but the threshold has never been met on any single subject. Because the path has never been tested, basic questions are unresolved: whether a convention can be limited to one topic, how delegates would be selected, and what voting rules would apply.
How the States Ratify
Once Congress proposes an amendment, it goes to the states. Congress chooses one of two ratification routes and specifies its choice in the proposing resolution: approval by three-fourths of the state legislatures, or approval by specially convened ratifying conventions in three-fourths of the states.4National Archives. Article V, US Constitution Congress has almost always sent amendments to state legislatures. The lone exception is the Twenty-First Amendment, which repealed Prohibition in 1933 through state conventions.5Legal Information Institute. Ratification Deadline, State Ratifying Conventions, and the Twenty-First Amendment
States cannot add their own procedural steps. In Hawke v. Smith, the Supreme Court struck down an Ohio provision that required a popular referendum before the state could ratify a federal amendment. The Court held that when Article V says “Legislatures,” it means the state’s representative lawmaking body, and neither Congress nor the states can substitute a different method.6Legal Information Institute. Hawke v Smith The internal voting threshold in each state legislature varies, with some requiring a simple majority and others a supermajority to approve a ratification resolution.
How Long the States Have
Article V says nothing about deadlines. In Dillon v. Gloss, the Supreme Court ruled that Article V implicitly requires ratification within a “reasonable time” and that Congress may set a specific deadline.7Justia. Dillon v Gloss Starting with the Eighteenth Amendment in 1917, Congress has typically included a seven-year deadline in the proposing resolution.8Constitution Annotated. Congressional Deadlines for Ratification of an Amendment
When there is no deadline, an amendment can sit for a very long time. The Twenty-Seventh Amendment, which bars congressional pay raises from taking effect until after the next election, was proposed by James Madison in 1789 and finally ratified in 1992, more than 202 years later.8Constitution Annotated. Congressional Deadlines for Ratification of an Amendment
The deadline question is not fully settled. The Equal Rights Amendment was proposed in 1972 with a seven-year deadline that Congress later extended to 1982. Only 35 states ratified by then. Three more states ratified after the deadline, bringing the total to 38, but the Archivist has not certified it. The Department of Justice concluded that Congress had authority to impose the deadline and that the amendment is no longer pending, and lawsuits seeking to force certification have been dismissed on procedural grounds.9Congress.gov. The Equal Rights Amendment: Background and Recent Legal Developments
Can a State Take Its Ratification Back
Probably not, though no court has ruled definitively. When New Jersey and Ohio ratified the Fourteenth Amendment and then tried to withdraw their approval, Congress counted them anyway and treated the rescissions as legally meaningless.10Constitution Annotated. Effect of Prior Rejection of an Amendment or Rescission of Ratification In Coleman v. Miller, the Supreme Court held that whether a prior rejection or a later rescission affects a ratification is a “political question” for Congress to decide, not a matter for the courts.11Justia. Coleman v Miller The reverse direction is clearer: a state that initially rejected an amendment can later ratify it, and several amendments have reached three-fourths partly through states that changed their minds.
The One Thing That Cannot Be Amended
Article V contains a single permanent restriction: no state can be deprived of its equal representation in the Senate without that state’s consent.4National Archives. Article V, US Constitution An amendment abolishing the Senate or giving larger states more senators could not be ratified over the objection of even a single state that stood to lose representation. It is, in practical effect, the only unamendable provision of the Constitution. Article V’s original text also protected the slave-trade and direct-tax clauses from amendment before 1808, but that restriction expired by its own terms.
The Final Step: Certification by the Archivist
Ratification is not complete until the paperwork is verified. Each ratifying state sends an original or certified copy of its approval to the Archivist of the United States, who heads the National Archives and Records Administration. The Office of the Federal Register examines each document for legal sufficiency and proper authentication.12National Archives. Constitutional Amendment Process
Once the Office of the Federal Register confirms that 38 states have submitted valid ratification documents, the Archivist issues a formal certificate declaring the amendment valid and part of the Constitution. Federal law requires the Archivist to publish this certification along with a list of the ratifying states.13Office of the Law Revision Counsel. 1 USC 106b The certification appears in the Federal Register and the United States Statutes at Large, and the amendment takes effect immediately.12National Archives. Constitutional Amendment Process The Archivist’s role is ministerial. Once the threshold is met, the duty to certify is mandatory, not discretionary. The original ratification documents are preserved at the National Archives.
Why So Few Amendments Make It
Six of the 33 amendments Congress has sent to the states failed to be ratified.1Constitution Annotated. Proposed Amendments Not Ratified by the States Four of them, including the 1810 Titles of Nobility Amendment, the 1861 Corwin Amendment, the 1924 Child Labor Amendment, and the 1789 Congressional Apportionment Amendment, carry no deadline and remain technically pending. The D.C. Voting Rights Amendment expired in 1985 with only 16 states ratifying. The ERA remains in dispute. Thousands of additional proposals have been introduced in Congress over the years without ever getting the two-thirds vote needed to send them to the states.14Congress.gov. Proposals to Amend the US Constitution: Fact Sheet The framers wanted the Constitution to be changeable but not easily changed, and the ratification numbers show they got what they wanted.