Article Five of The United States Constitution - Proposal

Proposal

Whenever they "shall deem it necessary," two thirds of both houses of Congress may "propose amendments." This means two-thirds of those members present—assuming that a quorum exists at the time that the vote is cast—and not necessarily a two-thirds vote of the entire membership elected and serving in the two houses of Congress. It was suggested that the two houses first adopt a resolution indicating that they deem an amendment necessary, but this procedure has never been used—the U.S. Senate and the U.S. House of Representatives instead directly proceed to the adoption of a joint resolution, thereby proposing the amendment with the implication that both bodies "deem" the amendment to be "necessary." Up to now, all amendments have been proposed and implemented as codicils, appended to the main body of the Constitution.

If at least two-thirds of the legislatures of the states so request, Congress is required to call a convention for the purpose of proposing amendments. This provision, many scholars argue, allows for a check on the power of the Congress to limit potential constitutional amendments.

The state legislatures have, in times past, used their power to apply for a national convention in order to pressure Congress into proposing the desired amendment. For example, the movement to amend the Constitution to provide for the direct election of U.S. Senators began to see such proposals regularly pass the House of Representatives only to die in the Senate from the early 1890s onward. As time went by, more and more state legislatures adopted resolutions demanding that a convention be called, thus pressuring the Senate to finally relent and approve what later became the Seventeenth Amendment for fear that such a convention—if permitted to assemble—might stray to include issues above and beyond just the direct election of U.S. Senators.

The President has no formal role in the constitutional amendment process. Article One provides, "every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives." As previously stated, the Constitution requires the concurrence of at least two-thirds of the members present of both the House of Representatives and the Senate to a joint resolution which proposes a constitutional amendment. Nonetheless in Hollingsworth v. Virginia (1798), the Supreme Court held that it is not necessary to place constitutional amendments before the President for signature and, by the same logic, the President is powerless to veto a proposed constitutional amendment.