Proposals by Congress.

Few difficulties of a constitutional na- ture have arisen with regard to this method of initiating constitutional change, the only method, as we noted above, so far successfully resorted to. When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument.15 Instead, the House decided to propose them as supplementary articles, a method followed since.16 It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals.17 In the National Prohibition Cases,18 the Court ruled that, in proposing an amendment, the two Houses of Congress thereby indicated that they deemed revision necessary. The same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the Members present—assuming the presence of a quorum—and not a vote of two-thirds of the entire membership.19 The approval of the President is not necessary for a proposed amendment.20

Footnotes

15
1 ANNALS OF CONGRESS 433–436 (1789). [Back to text]
16
Id. at 717. [Back to text]
17
Id. at 430. [Back to text]
18
253 U.S. 350, 386 (1920). [Back to text]
19
253 U.S. at 386. [Back to text]
20
In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Court rejected a challenge to the Eleventh Amendment based on the argument that it had not been submitted to the President for approval or veto. The Court’ s brief opinion merely determined that the Eleventh Amendment was “constitutionally adopted.” Id. at 382. Apparently during oral argument, Justice Chase opined that “[t]he negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.” Id. at 381. See Seth Barrett Tillman, A Textualist Defense of Art. 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 (2005), for extensive analysis of what Hollingsworth’s delphic pronouncement could mean. Whatever the Court decided in Hollingsworth, it has since treated the issue as settled. See Hawke v. Smith (No. 1), 253 U.S. 221, 229 (1920) (in Hollingsworth, “this court settled that the submission of a constitutional amendment did not require the action of the President”); INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) (in Hollingsworth, “the Court held Presidential approval was unnecessary for a proposed constitutional amendment . . . ”). [Back to text]