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.

The Supreme Court has held that Congress determines whether state legislatures or state ratifying conventions should consider the ratification of a proposed constitutional amendment.1 In United States v. Sprague, the federal government indicted defendants under the National Prohibition Act (NPA) for unlawfully transporting and possessing intoxicating liquors.2 The lower courts quashed the indictment, determining that Congress lacked the authority to enact the NPA.3 These courts held that the Eighteenth Amendment, which granted Congress the authority to enact laws like the NPA, was invalid because state legislatures had ratified it rather than state ratifying conventions.4

On appeal, the Supreme Court considered whether state conventions should have ratified the Eighteenth Amendment because it conferred new powers on Congress to abridge individual rights by enacting laws to enforce Prohibition.5 The Court rejected this argument, determining that “the choice . . . of the mode of ratification lies in the sole discretion of Congress.” 6

State legislatures have ratified twenty-six of the twenty-seven amendments that have become part of the Constitution.7 As noted, Congress has chosen the convention method of ratification only once.8 In the joint resolution proposing the Twenty-First Amendment repealing Prohibition, Congress specified that “conventions in three-fourths of the several States” must ratify the Amendment for it to become operative.9

Footnotes

1

United States v. Sprague, 282 U.S. 716, 730 (1931) ( “The choice . . . of the mode of ratification lies in the sole discretion of Congress.” ). Presumably, Congress could also choose the mode of ratification for amendments proposed by an Article V convention of the states. See U.S. Const. art. V.

2

Sprague, 282 U.S. at 729.

3

Id.

4

See id. at 729–30.

5

Id.

6

Id. at 730.

7

For information about the ratification of amendments to the Constitution and the text of the amendments, see Intro.3.1 Ratification of Amendments to the Constitution Generally.

8

See Intro.3.1 Ratification of Amendments to the Constitution Generally.

9

The House Joint Resolution Proposing the Twenty-First Amendment to the Constitution, 72nd Cong. (1933), https://www.ourdocuments.gov/document_data/pdf/doc_040.pdf.