Ratification of Constitutional Amendments

• Author: Dennis J. Mahoney
• Pages: 2116-2118

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The delegates to the CONSTITUTIONAL CONVENTION of 1789 decided upon the outlines of the AMENDING PROCESS after only a few hours of debate. The requirement that any proposed amendment be ratified by three-fourths of the states was adopted unanimously, but was, like so much of the Constitution, the result of a compromise. Initially the convention seems to have assumed that amendments to the federal charter would require ratification by all the states; but five state delegations were willing to set the requirement as low as two-thirds of the states. No form of ratification other than by the states as entities was proposed or discussed in the convention.

JAMES MADISON, writing in THE FEDERALIST #39, described the method of ratifying amendments to the new Constitution as "partly federal, partly national." The method is [con]federal in that ratification is accomplished by the states as states, and not by a referendum of the people or a national majority. At the same time, the method is national in that it does not require the assent of all the constituent states to alter the terms of the federal union. A pure theory of FEDERALISM, as it was understood by the founding generation, would not have sanctioned imposition of an amended compact upon unconsenting parties.

Our first constitution, the ARTICLES OF CONFEDERATION, had required the unanimous consent of the states to any

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amendment. For that reason, during the "critical period" between 1781 and 1789 no amendments were adopted, even when decisive weaknesses in the confederal system were apparent. The requirement for unanimous ratification of amendments made the Constitutional Convention and the new Constitution necessary.

Article V in fact provides for state ratification of constitutional amendments in one or the other of two distinct modes, leaving the choice of mode to Congress. The first mode is ratification by state legislatures, the second is ratification by conventions. In two centuries of government under the Constitution Congress has proposed thirty-three constitutional amendments and in thirty-two cases has prescribed state legislatures as the agents of ratification. The single exception was ratification of the TWENTY-FIRST AMENDMENT, repealing PROHIBITION.

The constitutional provision relating to ratification is little more than an outline. The details have been filled in as the need has arisen. Although the state legislatures derive their...