Constitution of United States of America

Article 5 is important because, by defining the process for amending the Constitution, it is the basis for that document’s reputation as a “living Constitution”—one that can evolve over time and adapt to circumstances. There are two procedures through which constitutional amendments may be proposed: through Congress or via a convention called by a minimum of two-thirds of the states. Once the Congress passes an amendment, it must be ratified by the legislatures of at least three-fourths of the states. Amendments are ratified and repealed through the same processes. Only the 18th Amendment that enshrined the Prohibition of alcohol in the Constitution has ever been repealed (by the 21st Amendment). All amendments have been ratified via the state convention process, except for the 21st. The first 10 amendments, known as the “Bill of Rights,” received ratification only two years (1789) after the Constitution’s drafting. These amendments were written in response to concerns voiced by anti-Federalist politicians.

Article 5 describes a temporary restriction on efforts to stop the slave trade: The slave trade could not be limited or banned before 1808. As elsewhere in the Constitution, the practice of slavery is referred to but not named outright, suggesting that the Framers were uncomfortable addressing slavery. The international trade in enslaved peoples stopped in January 1808 as a result of the “Act Prohibiting the Importation of Slaves,” passed in 1800. Enslavement and the domestic slave trade, however, persisted in the United States until the end of the Civil War and the passage of the 13th Amendment in 1865.

The abolition of slavery, the two extensions of suffrage (to Black men and, later, to women), the equal protection clause, the amendment that allowed the federal government to collect income tax, the decision to elect senators by a popular vote (rather than have them appointed by state legislatures), and Prohibition and its repeal are all evidence of the “living” nature of the Constitution.

The nature of the Constitution as a living document has had a lasting impact on the US political system, but there are still tensions between the spirit of the document and its application. For example, the 13th Amendment abolished enslavement except for its employment “as a punishment for crime whereof the party shall have been duly convicted. The 13th Amendment thus allows for forced labor among incarcerated individuals, thus leading critics and activists, like the Innocence Project, to point out that the amendment only ended chattel slavery and argue slavery persists in the United States prison system.

The Constitutional process outlined in Article 5 also explains why the Equal Rights Amendment (or ERA) has never been ratified, though it frequently appears as a point of contention in political debates and for civil rights activists. The ERA was first introduced in 1923 and would provide constitutional protection against discrimination based on sex. In 1977 it received the necessary three-fourths votes among the states for ratification, but several states soon reversed their ratification so that the ERA remains in limbo as of 2023.