Article V — Constitutional Amendment Process

Article V of the U.S. Constitution is the only legal mechanism for formally changing the Constitution. It requires a two-thirds vote of Congress (or a convention requested by two-thirds of state legislatures) to propose an amendment, and approval by three-fourths of states (38 of 50) to ratify it. In practice, that bar is nearly impossible to clear in a polarized era — which is why the Constitution has been formally amended only 27 times in 235 years, and why most "constitutional change" actually happens through Supreme Court interpretation rather than the text itself.

That last point has enormous practical consequences for you. The rights you exercise, the limits on government power you rely on, and the structural rules that shape elections and representation aren't just what Article V's 27 amendments say — they're what five Supreme Court Justices currently believe those amendments mean. Changing a court interpretation requires either new appointments or a new case; changing the Constitution's actual text requires the supermajority coalition that Article V demands. Both battles are hard. Article V is why they're both necessary.

Article V's high bar is both deliberate and contested. It protects fundamental rights from momentary political majorities — but it also locks in structural features (like equal Senate representation regardless of state population) that many Americans consider democratic deficits. California's 39 million people have the same two Senate votes as Wyoming's 578,000. That can't be changed through a normal amendment — Article V itself explicitly exempts equal Senate suffrage from the amendment process without every affected state's consent.

Current Law (2026)

Legal Authority

• U.S. Const. art. V — "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
• Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) — The presidential veto does not apply to proposed constitutional amendments; the President has no role in the Article V process
• Dillon v. Gloss, 256 U.S. 368 (1921) — Ratification must occur "within some reasonable time"; Congress may impose ratification deadlines on proposed amendments
• Coleman v. Miller, 307 U.S. 433 (1939) — Questions about the validity of ratification and the effect of state rescissions of prior ratification approvals are "political questions" for Congress to resolve, not courts
• Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981) — (Not decided by Supreme Court) District court held ERA ratification deadline could not be extended and state rescissions were valid; rendered moot when deadline passed

Key Mechanics

The Two Paths to Proposing Amendments

Congressional proposal (the only path used so far): Every one of the 27 amendments to the Constitution has been proposed by Congress — no amendment has ever been proposed through a constitutional convention. Congress proposes by a two-thirds vote of both the House and Senate, not a simple majority. The President has no formal role: Hollingsworth v. Virginia (1798) held that the veto does not apply, and the Constitution routes amendments directly from Congress to the states. Joint resolutions proposing amendments are not presented to the President for signature. In practice, bipartisan supermajorities needed for proposal mean that most successful amendments addressed urgent, widely agreed-upon needs: post-Civil War Reconstruction (Thirteenth, Fourteenth, Fifteenth Amendments), Prohibition and its repeal (Eighteenth and Twenty-First), women's suffrage (Nineteenth), congressional pay (Twenty-Seventh).

Constitutional convention (Article V's unused path): If two-thirds of state legislatures (34 states) pass applications requesting a constitutional convention for a specific purpose, Congress "shall call" such a convention. The delegates would propose amendments that then go to the states for ratification by the usual three-fourths threshold. No such convention has been called since the original 1787 Constitutional Convention that produced the Constitution itself. The convention path is deeply controversial for two reasons: (1) scope control — it is unclear whether a convention called for a specific purpose (e.g., a balanced budget amendment) could be limited to that topic or might "run away" to propose amendments on other subjects; (2) procedural unknowns — the Constitution provides almost no detail about how a convention would be organized, how delegates would be apportioned, or what voting rules would apply. Conservative advocates have long pursued an Article V convention for a balanced budget amendment (the Compact for America); currently 28 to 34 states have outstanding applications, depending on how they are counted and whether old applications remain valid.

Ratification

Congress specifies whether ratification occurs through state legislatures or state ratifying conventions. The convention method was used only once — for the Twenty-First Amendment (Prohibition repeal), to ensure that voters rather than potentially "dry" state legislatures made the decision. For all other amendments, state legislatures have ratified. Three-fourths of states (38 of 50) must approve; the order doesn't matter, and Congress can (and usually does) impose a time limit, typically seven years.

State rescissions: Can a state that ratifies an amendment later rescind its ratification? The Supreme Court in Coleman v. Miller (1939) held this is a political question for Congress — courts will not resolve it. The question arose most prominently with the Equal Rights Amendment. Congress initially gave the ERA a 7-year deadline (1979), then extended it to 1982. Three states that had ratified the ERA later voted to rescind; Congress's 1982 deadline passed without sufficient ratification (35 states, not 38). Starting in 2017, three additional states ratified the ERA (Nevada 2017, Illinois 2018, Virginia 2020), bringing the total to 38 — but years after the congressional deadline. In January 2022, the Biden Office of Legal Counsel issued an opinion concluding that the 2020 OLC opinion was not an obstacle to congressional action or judicial consideration of the ERA's status. On January 17, 2025 — three days before leaving office — President Biden publicly declared that he considered the ERA "the law of the land," but the Archivist did not certify it as the 28th Amendment, and the Trump administration's position is that the ERA is not in force. Courts have declined to resolve the ERA's legal status, treating it as a political question.

The Entrenched Provisions

Article V itself contains two provisions that cannot be amended:

1. Equal suffrage in the Senate: "No State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Every state has two senators regardless of population. California (39 million people) has the same Senate representation as Wyoming (578,000 people). This provision is the only part of the Constitution explicitly made unamendable — it cannot be changed even by the amendment process without the affected state's consent. The Senate's equal-state structure significantly advantages rural, smaller, and historically Republican-leaning states.

2. Pre-1808 slave trade protection: The Constitution originally prohibited amending the provision allowing the slave trade to continue until 1808. This limitation expired in 1808 and is now moot.

The Difficulty Bar and Its Effects

The United States has a harder-to-amend constitution than most democratic systems. The combination of two-thirds congressional proposal and three-fourths state ratification means that in an era of polarized politics, any 13 states can block ratification (and 17 House members can block proposal through minority control). The practical effect is that:

1. Judicial interpretation substitutes for amendment: Because formal amendment is so difficult, the meaning of the Constitution has evolved primarily through Supreme Court interpretation — the Court's rulings on the Commerce Clause, the Fourteenth Amendment's incorporation of the Bill of Rights, executive power, and individual rights have operated as de facto constitutional amendments. The stakes of Supreme Court appointments are extraordinarily high because the Court is effectively the constitutional amendment mechanism.

2. Structural inequities are entrenched: The Senate's equal-state structure, the Electoral College (which can and has produced presidents who lost the popular vote), and the specifics of constitutional rights protections cannot be easily changed even when substantial majorities favor change. Critics argue this gives minority groups — particularly rural, white, conservative voters — structural advantages that cannot be democratically corrected.

3. Successful amendments address broad consensus: The amendments that have succeeded either addressed overwhelming consensus (abolishing slavery after the Civil War, giving women the right to vote after decades of mobilization, setting presidential term limits after FDR's four terms) or resolved clear technical deficiencies (the Twenty-Fifth Amendment's presidential succession procedures, the Twenty-Seventh Amendment's congressional pay provision).

The Congressional Pay Amendment (Twenty-Seventh)

The most recent amendment — the Twenty-Seventh, ratified in 1992 — is itself a story about Article V. James Madison proposed it as one of the original twelve amendments in 1789 (Congress adopted ten, which became the Bill of Rights; the salary amendment was among the two that initially fell short of ratification). In 1982, a University of Texas student named Gregory Watson noticed the amendment was still technically pending — no ratification deadline had been imposed — and began lobbying state legislatures to ratify it. Over the next decade, enough states ratified to reach three-fourths. The amendment provides that no law "varying the compensation for the services of the Senators and Representatives" takes effect until an election of Representatives has intervened. Congress certified its ratification in 1992. The amendment's bicentennial journey illustrates that proposed amendments without ratification deadlines can theoretically be ratified at any time.

Article V and Constitutional Democracy

The amendment process reflects a fundamental tension in constitutional design: the Constitution should be stable enough to resist majoritarian pressures and protect minority rights, but flexible enough to evolve with changed circumstances and values. Marbury v. Madison (1803) established that the Constitution is the supreme law and that courts enforce it — but the courts' constitutional interpretations are themselves difficult to overturn. If the Supreme Court misreads the Constitution (in the current majority's view), the formal correction mechanism is Article V amendment — which requires supermajorities that are often unachievable. The result is that major constitutional changes tend to happen when the political alignment of the court-appointment process shifts, and those appointments endure through life tenure. See Article III — Judicial Power for the court's role in constitutional interpretation.

How It Affects You

If a right you rely on was created by Supreme Court interpretation, not text: Your access to abortion care, same-sex marriage, contraception, and a range of other rights depends on how current Supreme Court majorities read the Constitution — not on any specific amendment that enshrines those rights in the text. Dobbs v. Jackson Women's Health Organization (2022) demonstrated this: the Court reversed 50 years of precedent on abortion rights without any Article V amendment being involved. The formal textual remedy — amending the Constitution to explicitly protect reproductive rights — would require 67 Senate votes and 38 state ratifications, a coalition that does not currently exist. This is the core Article V reality for most Americans: constitutional rights you care about live in judicial opinions, not the text, and can be rewritten by five votes on the Supreme Court.

If you care about voting rights and democratic representation: The Electoral College and the Senate's equal-state structure are constitutional provisions that Article V makes nearly impossible to change. Eliminating the Electoral College through a constitutional amendment would require 38 states to ratify — but the small states that benefit from it would almost certainly block ratification. The National Popular Vote Interstate Compact is a workaround (states pledge their electoral votes to the popular vote winner) that tries to achieve Electoral College reform without an Article V amendment, but it has its own legal vulnerabilities. Understanding Article V's limits explains why electoral reform advocates focus on state-level compacts and court litigation rather than constitutional amendment.

If you are an advocate pushing for constitutional change: Article V's high threshold means you need overwhelming political consensus, not just a majority, to formally amend the Constitution. Winning 60% of public opinion is not enough — you need two-thirds of Congress and three-fourths of state legislatures. The practical implication is that constitutional advocacy increasingly focuses on changing judicial interpretation (through Supreme Court appointments) rather than formal amendment. Issues like reproductive rights after Dobbs, gun regulations after Heller and Bruen, voting rights, and campaign finance are litigated through judicial appointments and interpretation rather than formal Article V amendments. If you believe a Supreme Court decision is wrong and want to constitutionally override it, you need a formal amendment — and you need to build the political coalition (two-thirds of Congress, 38 states) to do so.

If you are interested in the Article V convention debate: The drive for an Article V constitutional convention — primarily by conservative groups seeking a balanced budget amendment, term limits, or other structural changes — has been ongoing for decades. As of 2026, 28-34 states have outstanding applications (the count depends on whether old applications are aggregated and whether applications limited to specific topics count). The convention has never happened; even its proximity to the two-thirds threshold generates significant concern from both left and right about an "uncontrollable" convention. If you support a convention: the Convention of States Project and Compact for America are the leading organizations; contact your state legislators who control convention applications. If you oppose a convention: the concerns are process-based (no constitutional rules about how delegates are selected, apportioned, or how they vote) and substantive (a convention could propose far-reaching changes to judicial review, rights protections, or structural governance).

If you are a constitutional law scholar or student: Article V is the formal constitutional text, but the real amendment process is judicial interpretation. The Supreme Court's major doctrinal shifts — from Lochner (1905, constitutional protection for contract liberty) to West Coast Hotel (1937, deference to economic regulation); from Bowers v. Hardwick (1986, no constitutional right to homosexual sodomy) to Lawrence v. Texas (2003, constitutional protection) and Obergefell (2015, constitutional right to same-sex marriage); from Roe v. Wade (1973) to Dobbs (2022) — are constitutional changes accomplished without Article V amendment. The academic debate over whether this "informal amendment" process is democratically legitimate, and whether Article V should be reformed to reduce the amendment barrier, is central to constitutional theory. Bruce Ackerman's theory of "constitutional moments" argues that landmark political mobilizations (New Deal, Reconstruction, Civil Rights) create constitutional change outside Article V that the courts appropriately recognize.

If you are a state legislator: Your body has two distinct roles in Article V: (1) you can apply for a constitutional convention (currently 28-34 states have done so on various topics); (2) your legislature votes to ratify constitutional amendments Congress proposes. Ratification is a binary vote — yes or no — and Congress sets the method. There is no gubernatorial veto on ratification; the state legislature acts alone. Active ratification questions as of 2026 include the ERA (Virginia ratified in 2020; the legal validity of that late ratification is contested). Your legislature may also consider new convention applications or rescind old ones, though the legal effect of rescissions on pending applications is disputed.

State Variations

Article V operates at the federal level and directly engages state governments in two ways: state legislatures apply for constitutional conventions and vote to ratify amendments Congress proposes. State constitutions have their own amendment processes:

Easier state amendment processes: Most states make their constitutions easier to amend than the federal Constitution. Many states allow constitutional amendments by simple majority of the legislature (not two-thirds) plus a vote of the people. California, Oregon, and many other states allow citizens to place constitutional amendments directly on the ballot through the initiative process, bypassing the legislature entirely. The result is that state constitutions are amended far more frequently than the federal Constitution — California's constitution has been amended hundreds of times.

State constitutional conventions: States also have Article V analogs — procedures for calling constitutional conventions to revise or replace their constitutions. States have called such conventions throughout American history; Hawaii used one to draft its 1978 constitutional revisions. Unlike the federal convention debate, state conventions are better understood because they have occurred and their procedures are established.

ERA ratification: The ERA presents the most active current Article V controversy at the state level. Virginia's 2020 ratification and the legal dispute over whether the ERA is now part of the Constitution due to expired deadlines and rescissions involves state legislative action and federal legal questions. State legislatures considering ERA positions are directly engaging the Article V process.

Pending Legislation

Article V itself cannot be changed through ordinary legislation — it can only be amended through itself (an Article V amendment to Article V). But Congress has related legislative authority:

• ERA Publication: On January 17, 2025, President Biden publicly declared the ERA the "law of the land," but the Archivist did not certify it as the 28th Amendment; the Trump administration's position is that the ERA is not in force. Congress has considered legislation directing ERA publication; no bill has passed.
• Convention Procedures Act: Multiple Congresses have considered legislation specifying procedures for an Article V constitutional convention — how delegates would be selected, apportioned, and how the convention would vote. No such legislation has passed; the absence of any procedural rules is itself a major argument against allowing a convention to be called.

Recent Developments

• 2022 / 2025 — ERA publication controversy: In January 2022, the Biden OLC concluded that the 2020 OLC opinion did not bar Congress or courts from acting on the ERA's status. On January 17, 2025, three days before leaving office, President Biden publicly declared the ERA "the law of the land"; the Archivist did not certify it as the 28th Amendment, and the Trump administration's position is that the ERA is not in force, leaving the ERA's constitutional status unresolved.
• 2022-2026 — Convention of States momentum: The Convention of States Project claims 19 states passed its specific convention application language; additional states have applications on other topics (balanced budget, general reform). Whether these applications can be aggregated toward the 34-state threshold and what a convention would actually look like remain contested. Constitutional scholars from both left and right have expressed concern about an uncontrolled convention.
• 2025 — Twenty-Seventh Amendment anniversary: The 1992 ratification of the congressional pay amendment — 203 years after Madison proposed it in 1789 — illustrated that proposed amendments without ratification deadlines technically remain open. Legal scholars continue to debate whether Congress can retroactively impose a deadline on the ERA, given that its original deadline has passed.
• 2024 — Federal balanced budget debate: Efforts to pass a congressional balanced budget amendment through the normal two-thirds/three-fourths process continued to fall short of the 67 Senate votes needed for proposal. As an alternative, Article V convention applications have been submitted by states seeking to circumvent the congressional proposal requirement.