What Would It Take to Amend the Constitution?
It’s not easy to change the Constitution—and that’s exactly what the Framers intended.
As we know all too well, mass shootings are shockingly common in the United States, and after each, we see a few recurring themes. One of the most prominent is that any tragedy involving firearms triggers a reflexive call to repeal the Second Amendment, with people asking, “Why don’t we just get rid of it?” In theory, we know exactly how to amend the Constitution—after all, the instructions are right there in Article V. But practically speaking, it’s very hard to do.
“The Framers wanted the people to have the right to change the Constitution, but they didn’t want it to be too easy,” says Adam Winkler, professor of law at UCLA. “The Framers understood that this was the fundamental charter of our nation, and if it’s too easy to change, it becomes just an ordinary legal document.”
While arguments certainly get heated in regard to Second Amendment rights, especially since there’s disagreement over exactly what they mean, the same principle applies to First Amendment rights and all others outlined by this founding document. Here’s exactly what it would take to change the Constitution.
The Constitution was meant to be adaptable
The Founding Fathers intended for the Constitution to evolve, adapt to new circumstances, and reflect society’s progress, Winkler says. Many Framers believed it was within the people’s power to change it if they sought to secure new rights or the old rules became outdated or onerous.
“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind,” wrote Thomas Jefferson, one of the prominent Founding Fathers who didn’t sign the Constitution. “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
Jefferson’s opinion is just one of the competing views of the nature of the Constitution. The “Living Constitution” theory says its meaning, if not its text, must change to meet the needs of society, while “Originalists” argue that it should be interpreted in light of what it meant when it was drafted. Those battling viewpoints are often expressed in oral arguments before the Supreme Court.
Amending the Constitution is not easy
Article V of the Constitution lays out the ways it can be amended. There are two paths: one through Congress, and one through the states. In Congress, two-thirds of the Senate and two-thirds of the House of Representatives must vote to propose an amendment. Or, two-thirds of the states can petition the Congress to open a convention for proposing amendments. Any proposed amendment that comes out of it must then be approved by three-fourths of the states within a reasonable time. What makes for a “reasonable time” is not defined, but Congress has attached time limits, controversially, to some amendment proposals.
How hard is it to do all of that and actually amend the Constitution? Well, since the Bill of Rights was ratified in 1791, it’s only been accomplished 17 times.
Amendments reflect the people’s values
Many amendments reflect the nation’s deeply held principles, like the 22nd, limiting the presidency to two terms in office and curtailing entrenched power and political dynasties. Others show the results of long, hard-fought struggles for equality. The Reconstruction-era 13th, 14th, and 15th Amendments sought to remove the stain of slavery from laws and policies after the Civil War, while the 19th Amendment extended voting rights to women in 1920. Still, others seem to show temporary interests—like the 18th Amendment, banning alcohol and launching the Prohibition era in 1920, and the 21st Amendment, repealing it 12 years later.
But the amendment process is meant to discourage flavor-of-the-month lawmaking. Though thousands of amendments to the Constitution have been proposed in Congress, most never got past the first set of hurdles, according to U.S. Senate records.
Amendments can happen very fast, or take a really long time
The fastest Amendment to become law was the 26th, which lowered the voting age to 18 years old. Though it was initially discussed in the 1940s when World War II helped spur the slogan “Old enough to fight, old enough to vote,” it was never formally proposed, and it languished until the turmoil of the Vietnam War era revived it. In 1970, Congress passed a law to make 18 the national voting age, but the Supreme Court ruled in December of that year that it could apply only to federal elections and that states could determine the appropriate age for state elections.
In response, House and Senate committees recommended the 26th Amendment on March 2, 1971. A unanimous 94–0 vote in the Senate approved it eight days later, and the House voted 401–19 in favor on March 23. Five states ratified it that very day, followed in short order by 33 more, leading to certification by the General Services Administration on July 1, 1971.
The 27th amendment took the longest. It’s the one that says Congress can’t vote to give itself a pay raise unless a new Congress is seated before the raise goes into effect. Proposed by the very first Congress in 1789, it wasn’t ratified until 1992. It was dragged over the finish line largely by Gregory Watson, a University of Texas undergraduate who wrote a paper on the neglected amendment in 1982, arguing it could still become law. He then made it his personal cause when his professor gave him a C. After 202 years, seven months, and 10 days, the amendment was ratified, and the university retroactively gave Watson an A.
The ERA shows how complicated amendments can be
Other amendments have had time limits attached to their ratification, like the Equal Rights Amendment, or ERA, which would forbid discrimination against women on the basis of sex. It passed Congress in March 1972 with a seven-year deadline, and within a year, it was ratified by 30 states. After a three-year extension, it stalled, and by 1982, it was considered dead. But over the course of nearly 40 years, state legislatures began to take it up again. On January 15, 2020, Virginia became the 38th state to ratify the ERA, pushing it over the three-fourths hurdle.
But the ERA is not yet the law of the land. Legal battles are being fought over whether states can rescind their ratifications of an amendment, as many did after the ERA’s first wave of support waned, and whether Congress has the authority to make and remove time limits on amendments. The Constitution provides no easy answers to those questions.
Vague language is a feature, not a bug
The lack of specific instructions is a key characteristic of the Constitution. For every argument for a specific interpretation, there’s another one (or more) for a different interpretation. That’s why the Supreme Court hears more than 100 cases every year. This may seem like a flaw, but it’s what the Founders intended. “The more specific we are with our rights, the less useful they are,” Winkler says. “Vague, general terms are easier to adapt to unforeseen dangers and threats.”
Winkler adds that an itemized list of specific rights might be convenient, but it would be limiting, too easily used to exclude rights that society might decide it needs—rights the Founders couldn’t have predicted. Consider this: Would you have a right to privacy for things you keep stored on your cell phone if the Fourth Amendment, written 18 decades before the first cell phone made its first call, listed specific places and things meant to be free from unreasonable searches and seizures? Or, would you have the right to carry a semi-automatic rifle with a high-capacity magazine if the Second Amendment listed which “arms” you have the right to bear? At the time, the only firearms the Founders knew of fired one shot at a time and took nearly half a minute for the average person to reload, and, of course, gun violence statistics were nonexistent.
That question lies at the heart of the modern debate over gun rights and speaks directly to the difficulty in amending the Constitution. Could we get a majority of Americans to agree that some regulations had to be made to adapt the Second Amendment to modern weaponry? If so, what would the contours of those regulations look like? Could a super-majority of Congress agree to define those contours? And could a super-majority of states approve the changes in a reasonable time? If anyone is optimistic about all of that, they’re not saying so very loudly.
But while gun rights and gun control advocates square off over the Second Amendment, and legal scholars, Living Constitutionalists, and Originalists debate whether the Constitution should be changed to address realities our 18th-century leaders couldn’t have imagined, the people can rest assured that the Constitution can be changed, if it must.
- Adam Winkler, Professor of Law at UCLA
- American Bar Association: “Are We All Originalists Now?”
- National Constitution Center: “Article V”
- Cornell Law School: “Ratification”
- Library of Congress: “The African American Odyssey: A Quest for Full Citizenship”
- United States Senate: “Measures Proposed to Amend the Constitution”
- National Archives: “Records of Rights Vote: ‘Old Enough to Fight, Old Enough to Vote'”
- History, Art & Archives: United States House of Representatives: “The 26th Amendment”
- Constitution Daily: “How a college term paper led to a constitutional amendment”
- CNN: “3 conservative-leaning states sue to block ERA from ratification”