Article V of the Constitution | National Constitution Center | Khan Academy
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Article V of the Constitution | National Constitution Center | Khan Academy

– [Kim] Hey this is Kim from Khan Academy, and today I’m learning about Article Five of the U.S. Constitution, which describes the
Constitution’s amendment process. To learn more about Article Five, I talked to two experts,
Professor Michael Rappaport, who is the Darling Foundation Professor at the University of
San Diego School of Law, where he also serves as
the Director of the Center for the Study of
Constitutional Originalism. And Davis Strauss, who’s the Gerald Ratner
Distinguished Service Professor of Law at the University
of Chicago Law School, and author of The Living Constitution. Professor Strauss, Article
Five provides this process for amending the Constitution. Can you take us through
that process a little bit? How does it work? – [Strauss] A quick
description, the process is it’s really hard, it’s really hard to amend the Constitution. There are actually a couple
of different processes that are laid out in Article Five, but only one has ever been used. An amendment starts in Congress, and two thirds of each House of Congress, two thirds of the House of Representatives and two thirds of the Senate has to approve the amendment. And then it goes to the States. And three quarters of the States have to approve the amendment. So you have to have
really strong consensus in order to get the
constitution changed that way. – [Kim] So Professor Rappaport, take us through this process
of amending the Constitution. Why did the Framers set it up this way? – [Rappaport] The Framers gave a good bit of thought to coming up
with an Amendment process because they recognized
that the Constitution might need to be changed over time, either because there were problems with it that weren’t anticipated, or because circumstances
or values changed. So there are two steps
to the amendment process. For an amendment to go
into the Constitution to become part of the Constitution, it has to be both proposed and ratified. On the proposal side,
the Congress can propose. Alternatively, a proposal can come from the action of the state legislatures. So two thirds of the
state legislatures say, we’d like to have a
Constitutional Convention propose an amendment. So there’s two parts of that obviously. The state legislatures
have got to want it, and then you get the calling of a Constitutional Convention. Okay, that’s the proposal side. There’s also the ratification side, which is a little bit simpler. You need three quarters of the States to ratify a Constitutional amendment, and they can ratify it either through the actions of the state legislatures, or the actions of state conventions, which are special bodies
which would be elected in order to decides one question, whether or not to ratify that proposed Constitutional amendment. – [Kim] This is fascinating. So I actually had no
idea about the two thirds of the state legislatures being able to propose a Constitutional amendment. How often does that happen? – [Rappaport] It has never occurred throughout our history,
although a couple of times there were actions taken to
sort of move in that direction, but we’ve never actually had
a Constitutional Convention that has proposed any amendments. It’s important to go into why the Framers would’ve set up the
system the way they did. The most usual situation
is for the Congress to propose the Amendments and that’s happened in
all of the 27 amendments which have been ratified to
become part of our Constitution. But what happens if the
Congress is the problem? What happens if the Congress is doing, is usurping power or they’re standing in the way of changes that are important, or they need to be reformed. You can’t count on the Congress
to wanna reform itself. So what they did was to have
this alternative mechanism which would bypass the Congress. And that alternative mechanism was the Constitutional Convention. So the state legislatures
propose, apply for it, and then the separate entity, the Constitutional
Convention, makes a proposal. So they were quite explicit
in discussing this, that they wanted this as an
alternative to the Congress. – [Kim] So was this on purpose, that they made it very difficult
to amend the Constitution? – [Strauss] Well it sure seems like it. Now, of course we don’t know back then what they had in mind,
whether they thought, well, the House, the Senate, the States, they’ll sort of be all be run
by the same kind of people and they’ll kind of agree on things. Maybe they thought that. We just don’t know. But whatever they were thinking, what they gave us was a
very difficult process to get through. – [Kim] So how long was it from the period when the Constitution was first ratified to the First Amendment to the Constitution beyond the Bill of Rights? – [Rappaport] Okay, so
the first 10 amendments were ratified in 1791. And then just a mere three years later, we had the Eleventh Amendment. – [Strauss] It was the
Eleventh Amendment in 1798 to correct really kind
of a technical problem that the Supreme Court did something that the Framers really
didn’t anticipate it would do, didn’t want it to do, and the Eleventh Amendment
was adopted to correct that. The Twelfth Amendment was adopted in 1804 after the really kind of a
disaster in the election of 1800, when there was a tie in
the Electoral College. The Framers had not foreseen
the rise of political parties and political parties made
the system for electing the President they had given
us very difficult to work with. But then there was nothing. That was 1804. Then there was nothing
until after the Civil War. And after the Civil War,
there were three amendments, then nothing again really
until the Progressive Era in the early 20th Century, when there were again
a bunch of amendments. And then after then, things
had sort of tailed off. So we really see these kind of, as I said, these kind of waves in our history. – [Kim] What do you think
brings those waves on? Why are there some eras
when there are lots of Constitutional
amendments and other eras when there’s nothing? – [Strauss] Well Kim, here
I’m gonna say something that I think some people
will disagree with but I think it’s right and that is that, I don’t think the process
of amending the Constitution has really been the way
we actually change it. I think what happens is just because the amendment process is so difficult, we’ve worked out other
ways of changing things. And so amendments come along sometimes because a change has already happened and the people decide, well
let’s put it in the Constitution just so we can kinda have
official recognition of it. But a lot of times changes happen and they are a little
bit too controversial to get into the Constitution, but they seem pretty
solid and pretty secure so we just don’t, I
guess it’s fair to say, don’t bother to amend the Constitution or don’t wanna go through the process of amending the Constitution. – [Rappaport] Very often
people’s values may change or they may differ from
what’s in the Constitution and it may take a time or
circumstances may finally occur that crystallize this desire to change the Constitution, and all of a sudden the
opportunity is there and people can suddenly pass
a Constitutional amendment. It’s only gonna occur during
certain circumstances, especially when there’s
strong support for it. – [Kim] Very interesting, yeah. So it’s unlikely that we’re gonna have a Constitutional amendment
any time in the near future. When was the last
Constitutional amendment? – [Rappaport] So the simple
answer to that was in 1971, we got the 26th Amendment, that was both proposed
and then remarkably, it’s an all time record, proposed and ratified in
three months and eight days. And that was the amendment that guaranteed the right to vote of 18 year olds. – [Kim] Ah, right. So it’s sort of as a
response to the Vietnam War. – [Rappaport] Yes, yes. But there actually has been
one additional amendment, the 27th Amendment, right? So why isn’t that the most recent one? Well here’s the funny thing about it. The 27th Amendment was proposed as part of the original
Bill of Rights in 1789. So this amendment was proposed in 1789, ratified in 1992, so it took 202 years. – [Kim] Interesting. And what’s the 27th Amendment about? – [Strauss] That has to do with Congressional salary increases. It basically says if Congress
wants to raise its own salary, the increase can’t take effect
until the next election. So it basically gives the
voters a chance to say, hey, we don’t like what you did. We’re gonna vote you out of office for increasing your salary. – [Kim] So one thing that
strikes me about Article Five and just the fact that
the Founders included an amendment process altogether, it seems very humble and farsighted to include a way for the
document itself to evolve, in a way. Do you think that the Framers approached the Constitution with the
idea that there were things in the future that they just
wouldn’t be able to anticipate? – [Strauss] They had before them and were acutely aware of the history in which efforts to establish
governments had failed and they were really
trying to work with that and make sure they
didn’t do the same thing. So they knew what a hard
job they were embarking on. And they made it clear, there’s a famous passage in
which James Madison said, look, we know a lot of these provisions that we’re writing in the Constitution, their meaning is unclear and their meaning will have to be, his phrase was liquidated. Which is to say, people have to figure out what this means because we
know what we’re giving you is unclear in some ways. So yes, absolutely. They knew there were things that they could not anticipate. The Framers themselves
weren’t in agreement on what freedom of speech means. Some of them enacted,
voted for and got into, got enacted laws that restricted speech in ways that we would
find intolerable today. We’d say they violate the First Amendment, but here you had some of the guys who drafted the First Amendment
voting for those laws. – [Kim] So near the end of Article Five, there’s this kind of
long-winded clause that says, no amendment which may be
made prior to the year 1808 shall in any manner affect
the first and fourth clauses in the Ninth Section of the first Article. Now, if I’m cross-referencing
this correctly, what they’re really saying here is, you can’t make any
amendments about slavery. So why is this here and why are they talking
around it so obliquely? – [Rappaport] The
interesting thing about this is what did they do? They basically said, for 20 years, there’s not gonna be any amendments that are going to speak
to the slave trade. And the Constitution is very,
let us say, shy about using the term slavery or referring to slavery. It actually never actually
refers to the term slave. There’s a variety of thoughts
about what was going on, but one very common view about this is that the Constitution was sort of a little but embarrassed. That the Framers were a
little bit embarrassed, or at least some of the Framers
were embarrassed about it. And so they didn’t wanna make reference to it too explicitly. – [Strauss] They might’ve
been a little bit worried about what the verdict
of history would be. So they knew on some level the
sort of demorality of slavery but there it is right
there in Article Five and there are other places
in the Constitution too where they don’t use the word, but what they’re doing
is protecting slavery. Now they did add these
amendments to the Constitution about slavery and about, as you say, equal citizenship and voting. But the 14th Amendment
providing equal citizenship, that was pretty much
nullified in most respects for a large part of our history. States found a way to get around that. The 15th Amendment was also something that was just not very effective in preventing African Americans
from being denied the vote. And yes, there are provisions
in the Constitution that are there and you can evoke them and you can rely on them, but if you just look at the
text of the Constitution, I think you’d get a misleading impression about how the Constitution in our history has actually worked. – [Kim] Now this is a very good point because I think one of the
hardest things for students of U.S. history to understand is, how is it possible that
after the 14th Amendment was passed, things like Jim Crow happened. And I guess the answer is, the Constitution is only
enforced if it’s enforced. – [Strauss] Kim, that’s exactly right. It’s words on a page. You know that the text is fine. It can say all the right things, but the institutions and the popular will have to be in place to make
something of those fine words. – [Kim] Interesting. So how do you think our
government might be different if the Constitution didn’t
include this amendment process? – [Strauss] I don’t think it
would’ve been that different, just because Article Five gives us such a hard process to go through. Just because it’s so hard
to amend the Constitution. We figured out other ways to change the Constitution in practice, even if the words on
the page are the same. And I think if there were no Article Five, we would’ve found a way to get to where we wanted to get to as a country. By those means, by legislation,
by Presidential action, by Supreme Court decision and just by the people
in their lives saying, you know, we need to go in this direction. We need to go, say, in the
direction of women’s equality. And by the way, there’s no amendment giving
women equal rights either, but that’s where we’ve gotten to and I think that would’ve been the pattern if there were no formal amendment process. – [Rappaport] There’s a second way in which you could have
Constitutional change, which is, you could simply say, alright, this Constitution
was pretty good for a while. It’s now outlived its usefulness. Let’s have a new Constitution. That would seem like a very
radical big thing to do. No one, virtually no one proposes
that at the Federal level. But in the States, lots of States have changed their Constitutions. Not simply passed a
Constitutional Amendment but just gotten rid of
the whole old Constitution and adopted a new one. That’s happened many times. And so if we didn’t have a
Constitutional amendment process, it’s quite possible that that’s exactly what we would’ve seen
at the Federal level. – [Kim] This is really fascinating because we really think a lot about what the Framers intended
for certain amendments, for example, Freedom of
Speech, Freedom of Religion. What did they really mean by those things? But if we had just kind
of, every now and again, said, okay we’re done with that, let’s do a new Constitution. We wouldn’t necessarily have that debate. We’d just say, okay this is
what we meant at the time. – [Rappaport] Famously
Thomas Jefferson said oh, it’s really not right
to have a Constitution that’s gonna continue over time and bind future generations. And so we aught to have a new
Constitution every 19 years when there’s a new generation. And his close friend, James Madison, had to disagree with
him and basically said, look I understand why you’re saying that, but you also have to realize
the incredible disruption that would cause every 20 years. People wouldn’t be able to
rely on the existing rights that are in the Constitution because they would know in
a certain period of time, new ones would be enacted. We had that debate. Madison won in the sense
that the U.S. Constitution is supposed to last
for a long term period. There’s no 20 year limit on it. And one of the things
that’s been beneficial for the United States as a result of that, is that we’ve inherited
these Constitutional rights that people have a lot of reverence for. – [Kim] So we’ve learned
that there are two ways to amend the Constitution. Through Congress, or through a special Constitutional Convention
called by the States. Either way, adding an
amendment to the Constitution is really difficult to do, so much so that the
American people have only in special circumstances used
a Constitutional amendment to effect social or political change. To learn more about Article Five, visit the National Constitution Center’s interactive Constitution
and Khan Academy’s resources on U.S. Government and politics.


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