What Would it Take to Add Another Amendment to the U.S. Constitution? Quite a lot.
Last year, Illinois became the latest state to ratify the Equal Rights Amendment (ERA), bringing the amendment to the cusp of ratification. When the ERA was first written and being considered by states in the 1970s, the momentum that it quickly gained made ratification seem imminent. Yet campaigns against the amendment’s passage, most notably by conservative activist and lawyer Phyllis Schlafly, would slow the momentum and the ERA would come up short of being part of the U.S. Constitution.
Since the U.S. Constitution was ratified in 1789, only 27 amendments have become part of it. The last was in 1992, which concerned the salaries of members of Congress. The first 10 amendments — known as the Bill of Rights — were ratified in 1791, primarily meant to ease concerns about the new Constitution. Those hesitant or even outright opposed to it feared the Constitution would encroach too heavily on individual liberties and states’ rights. While many (if not all) of the Constitution’s proponents, such as James Madison, felt that they were unnecessary and already guaranteed, they worked toward getting these first 10 amendments passed to quell concerns.
This means that since 1791, only 17 amendments have become law, an average of roughly 13 and a half years. The history of amendments, however, shows long stretches of time without one being ratified. The process by which amendments become law was designed by the Constitution’s framers to be extraordinarily difficult to achieve, much more so than it is at the state level.
Although the ERA has some different dynamics compared to other possible amendments due to its history and its proximity to ratification, it is still a monumental task to ratify the 28th Amendment. Various factors contribute to this difficulty, and they need to be accounted for when trying to pass an amendment. This especially goes for any amendment besides the ERA being considered.
So what does it take to amend the Constitution? And what are the implications for today?
The Constitution’s Requirements for Amendments
As a “living, breathing” document, the Framers of the Constitution realized that future generations would have to deal with very different issues and societal changes than their own. Just like practically every other part of the Constitution, however, it was not outright agreed to from the get-go how the Constitution would be amended in the future.
Eventually, they arrived at four explicitly (or enumerated) processes for amendments, laid out in Article V of the Constitution. In a sense, they are actually more like two ways, with an “a” and “b” method. That’s because the first and second ways are very similar to each other, as are the third and the fourth.
- Method #1: Proposal by 2/3 vote of both the House and Senate in Congress; ratified by 3/4 of state legislatures
- Method #2: Proposal by 2/3 vote of both the House and Senate in Congress; ratified by 3/4 of state conventions
- Method #3: A national convention is called by the states; ratified by 3/4 of state legislatures
- Method #4: A national convention is called by the states; ratified by 3/4 of state conventions
Method #1 has been used in every case except for one time. The exception was the 21st Amendment, the repeal of Prohibition (the 18th Amendment), which was done through Method #2. Methods 3 and 4 have never been used.¹ That’s partly because each state would have different guidelines for how they would call and create their own conventions, just like how every state legislature is different. Thus, it’s hard to know or decide what such a national convention would look like.
Failed and Successful Amendments
Failed amendments ostensibly rarely get mentioned in history books and lessons, but there have been plenty of proposals that don’t make it to the Constitution. Many of them don’t come remotely close to ratification. Many of them may also seem rather strange.
About 10,000 amendments have been proposed in the history of Congress. Here are just a few examples:²
- In 1876, one amendment would have abolished the United States Senate entirely.
- In 1878, an amendment was proposed to replace the President with an Executive Council of Three. (This was actually not the first time this was suggested. At the Constitutional Convention when the Constitution was first being created, some of the members wanted to make the office of the President a three-person position. Those who proposed this feared that too much power was being invested into one person).
- In 1936, there was an amendment that would’ve allowed voters to choose whether the U.S. went to war.
There has been plenty of variety in what failed amendments would’ve done, and the same is true for successful amendments. Amendments that are law have covered areas such as voting rights for racial minorities (15th), women (19th) and 18 year-olds (26th); the abolishment of slavery (13th); limits on how long a President can hold the office (22nd); and the freedoms of speech, religion, press, petition, and assembly (1st).
Since it is so hard to ratify amendments, timing is a critical factor in their success. If the “zeitgeist,” the mood or spirit of a particular time in history, isn’t quite right, it’s often an even more grueling (if not impossible) task to do so. Looking back at what amendments do gives a good sense of what the “zeitgeist” was for its time.
- As aforementioned, the Bill of Rights (Amendments 1–10) were meant to quell the concerns Anti-Federalists and other skeptics had about the then-new Constitution.
- The 13th, 14th, and 15th Amendments — outlawing of slavery, equal rights and privileges for all races, and suffrage for racial minorities, respectively — came about in the wake of the Civil War and North-South tensions had come to a head.
- The 19th Amendment came as the result of a strong push for female suffrage, a push that found its roots in the mid-1800s but truly gained steam in the early 1900s.
- The 26th Amendment to grant 18 year-olds the right to vote was the culmination of years of campaigning for a lower voting age. The phrase “Old enough to fight, old enough to vote” was born when the draft was instituted for World War II, and the Vietnam War was the impetus advocates needed to create and ratify the amendment.
The Implications for Amendments Being Considered Now
Since the ERA is a different scenario given how close it is to ratification, let’s consider a different situation that is becoming more and more relevant today: Gun laws. The fight over whether, and how much, gun control should be enacted is one of the most emotionally-charged topics currently. There are many reasons why this is such a complicated debate, some of which aren’t often talked about.
One suggestion that has come up is to repeal the Second Amendment, most notably proposed by recently-deceased former Supreme Court Justice John Paul Stevens. It’s not an opinion that has gained serious traction even among more staunch advocates of gun control, at least not yet. Yet for the sake of this exercise, let’s say that it is (or is becoming) largely advocated for by the Democratic Party (and that there aren’t enough dissenters within it to matter). Also, remember that an amendment repealing a previous amendment has only happened once.
The first step is either the states calling for a national convention or 2/3 of each chamber of Congress passing it. It would then have to be ratified by 3/4 of either state legislatures or state conventions. The national convention route has never been used and there is no reason to assume that one could be called this time, so let’s look at Congress.
Democrats control the House while Republicans control the Senate. Democrats are a solid majority in the House, but current 2020 Senate race ratings suggest it’ll be a tall order for them to retake the Senate even though there are more Republicans up for re-election than Democrats this time. So even if the amendment would find enough support in the House, it would be dead in its tracks when it comes to the Senate.
But what if we disregard that and assume that 2/3 of both the House and Senate did support an amendment to repeal the 2nd Amendment? Next, we need to look at the state legislatures. Currently, Republicans control many more state legislatures than Democrats do. Even if the Democratic Party made state legislative gains in 2020, it’s highly unlikely that they would control even half of them, let alone the 3/4 needed to ratify the amendment. Republican legislatures would never support it, and they almost certainly won’t call state conventions to do so. The amendment would be dead in its tracks here as well.
Remember, however, that these were just hypothetical situations. In reality, very few Democrats support repealing the 2nd Amendment (and even fewer Republicans). Being the party that is more supportive of gun control, if they aren’t in favor of such an amendment, then the process is over before it begins. Supporters of such an amendment are much better off continuing to call for legislation to change gun laws.
Regardless of what an amendment concerns, however, it is a monumental task to have one ratified. With the possible exception of the ERA, it is unlikely that we are going to see the 28th Amendment to the Constitution anytime soon.
- U.S. Constitution. “Constitutional Amendments.” https://www.usconstitution.net/constam.html#process (accessed August 5, 2019).
- Constitution Facts. “Proposed Amendments.” https://www.constitutionfacts.com/us-constitution-amendments/proposed-amendments/ (accessed August 5, 2019).