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 Constitution does not specifically establish a role for the President in amending the Constitution.1 Nonetheless, some Presidents have played a ministerial role in transmitting Congress’s proposed amendments to the states for potential ratification. For example, President George Washington sent the first twelve proposed amendments, including the ten proposals that later became the Bill of Rights, to the states for ratification after Congress approved them.2 In addition, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment abolishing slavery even though his signature was not necessary for proposal or ratification of the amendment.3

Despite these examples of Presidents playing an informal, ministerial role in the amendment process, the Supreme Court has articulated the Judicial Branch’s understanding that the President has no formal constitutional role in that process. In a brief opinion in the 1798 case Hollingsworth v. Virginia, the Court held that the Eleventh Amendment had been “constitutionally adopted.” 4 The Supreme Court reporter recorded Justice Samuel Chase’s statement during oral argument that the President “has nothing to do with the proposition, or adoption, of amendments to the Constitution.” 5

Later, in the 1920 case Hawke v. Smith, the Supreme Court characterized the Court’s decision in Hollingsworth as having “settled” that “submission of a constitutional amendment did not require the action of the President.” 6 Therefore, the Court appears to have adopted the view that the President cannot veto a proposed amendment.

Footnotes

1

See U.S. Const. art. V. This essay does not examine whether the President has any role in an Article V convention of the states.

2

Letter from President George Washington to Governor Charles Pinckney (Oct. 2, 1789), https://digital.scetv.org/teachingAmerhistory/lessons/GWashingtonLetter.htm. Under modern federal law, the Archivist of the United States is responsible for certifying a state’s ratification of a constitutional amendment. See National Archives and Records Administration Act of 1984, 98 Stat. 2291 (codified at 1 U.S.C. § 106b).

3

The House Joint Resolution Proposing the Thirteenth Amendment to the Constitution, 38th Cong. (1865), https://www.archives.gov/milestone-documents/13th-amendment.

4

3 U.S. (3 Dall.) 378, 382 (1798).

5

Id. at 381 n.2. See also Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned, 83 Tex. L. Rev. 1265, 1275 (2005) (recounting how the Supreme Court reporter recorded Justice Chase’s statement during oral argument).

6

Hawke v. Smith, 253 U.S. 221, 229 (1920). President Jimmy Carter signed a joint resolution purporting to extend the deadline for ratification of the Equal Rights Amendment despite being advised that his signature was unnecessary. Ratification of the Equal Rts. Amend., 44 Op. O.L.C. 1, 8–9 (2020).