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Scope of the Amending Power

MODE OF AMENDMENT

ARTICLE 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.

AMENDMENT OF THE CONSTITUTION

Scope of the Amending Power

When this Article was before the Constitutional Convention, a motion to insert a provision that ''no State shall without its consent be affected in its internal policy'' was made and rejected.1 A further attempt to impose a substantive limitation on the amending power was made in 1861, when Congress submitted to the States a proposal to bar any future amendments which would authorize Congress to ''interfere, within any State, with the domestic institutions thereof …''2 Three States ratified this article before the outbreak of the Civil War made it academic.3 Members of Congress opposed passage by Congress of the Thirteenth Amendment on the basis that the amending process could not be utilized to work such a major change in the internal affairs of the States, but the protest was in vain.4 Many years later the validity of both the Eighteenth and Nineteenth Amendments was challenged because of their content. The arguments against the former took a wide range. Counsel urged that the power of amendment is limited to the correction of errors in the framing of the Constitution and that it does not comprehend the adoption of additional or supplementary provisions. They contended further that ordinary legislation cannot be embodied in a constitutional amendment and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State.5 The Nineteenth Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e., persons chosen by voters whom the State itself had not authorized to vote for Senators.6 Brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid.

1 2 M. Farrand, The Records of the Federal Convention of 1787 630 (rev. ed. 1937).

2 57 Cong. Globe 1263 (1861).

3 H. Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History, H. DOC. 353, pt. 2, 54th Congress, 2d Sess. (1897), 363.

4 66 Cong. Globe 921, 1424-1425, 1444-1447, 1483-1488 (1864).

5 National Prohibition Cases, 253 U.S. 350 (1920).

6 Leser v. Garnett, 258 U.S. 130 (1922).

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Last modified: June 9, 2014