Thirty-eight states have to ratify a constitutional amendment before it becomes part of the U.S. Constitution. That figure comes from Article V, which requires approval by three-fourths of the states. With 50 states in the union, three-fourths works out to exactly 38. Only 27 amendments have cleared that bar in more than two centuries.
Why the Number Is 38
Article V says a proposed amendment becomes “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.”1National Archives. Article V, U.S. Constitution The fraction has not changed since 1788, but the raw count has. When the Bill of Rights was ratified in 1791, only 10 of 14 states had to agree. Today, the same fraction demands 38 of 50.
The flip side of the number matters just as much: because 38 states must say yes, any 13 states can say no and stop the amendment. That gives smaller or more ideologically unified states real defensive power, which is what the framers intended. The threshold forces proposed changes to earn support across geographic and political lines before permanently altering the country’s highest law.
Washington, D.C. does not count. Despite having a population larger than some states and holding Electoral College votes under the Twenty-Third Amendment, D.C. is a federal district, and Article V grants ratification power only to states. U.S. territories do not participate either.
How a State Actually Ratifies
Congress decides which of two ratification methods the states must use when it sends a proposed amendment out. The choice is written into the joint resolution that transmits the amendment.2Constitution Annotated. ArtV.1 Overview of Article V, Amending the Constitution
A Vote of the State Legislature
This is the standard method, used for 26 of the 27 ratified amendments. Each state’s house and senate debate the proposal and vote to approve or reject. A simple majority in each chamber is enough unless the state’s own rules say otherwise.
Two limits are worth knowing. A governor cannot veto a ratification vote. The amendment process is a federal function assigned directly to legislatures by the Constitution, so the ordinary state lawmaking process does not apply. And a state cannot route the decision through its voters. The Supreme Court ruled in Hawke v. Smith that Article V gives the ratification power to “legislatures,” not to the people directly, and that requiring a popular vote is “inconsistent with the Constitution of the United States.”3Justia U.S. Supreme Court Center. Hawke v. Smith That case struck down an Ohio requirement that the legislature’s ratification of the Eighteenth Amendment be submitted to voters.
A State Ratifying Convention
The alternative requires each state to hold a special convention with delegates chosen specifically to consider the proposed amendment. Congress has required this method exactly once, for the Twenty-First Amendment repealing Prohibition in 1933.4Constitution Annotated. Amdt21.S1.2.5 Ratification of the Twenty-First Amendment The required 36 states, three-fourths at the time, approved it in less than a year.
How Long States Have to Act
Article V says nothing about a deadline. The Supreme Court filled that gap in Dillon v. Gloss (1921), holding that Congress can set a reasonable time limit. The Court reasoned that ratification must be “sufficiently contemporaneous” across three-fourths of the states “to reflect the will of the people in all sections at relatively the same period.”5Legal Information Institute. Dillon v. Gloss Since the Eighteenth Amendment, Congress has typically set a seven-year deadline.
Where the deadline sits turns out to matter. Some amendments include the time limit in the text of the amendment itself, making it part of the constitutional language. Others place it only in the preamble of the proposing resolution, which some legal scholars argue leaves it open to extension by a later Congress.
Without any deadline, a proposal can sit open indefinitely. The Twenty-Seventh Amendment is the extreme case. Congress proposed it in 1789 alongside what became the Bill of Rights, and it languished with no expiration date. Michigan became the thirty-eighth state to ratify on May 7, 1992, making it part of the Constitution more than 200 years after it was first sent to the states.6Constitution Annotated. Twenty-Seventh Amendment – Congressional Compensation
Can a State Take Back Its Yes?
Whether a state can rescind a previous ratification before 38 states have signed on is one of the murkiest questions in constitutional law. The Supreme Court addressed it indirectly in Coleman v. Miller (1939), calling the issue a “political question” for Congress to resolve rather than the courts.7Constitution Annotated. Effect of Prior Rejection of an Amendment or Rescission of Ratification
The one historical precedent cuts against rescission. When New Jersey and Ohio tried to withdraw their ratifications of the Fourteenth Amendment during Reconstruction, Congress counted both states toward the total anyway and declared the amendment adopted. That precedent is messy, though, because Reconstruction involved extraordinary political circumstances.
The Equal Rights Amendment has brought the question back to life. Congress proposed the ERA in 1972 with a seven-year deadline, later extended to 1982. Five states passed rescission resolutions. Three additional states ratified after the extended deadline expired, eventually bringing the nominal total to 38. The National Archives has stated that “the Equal Rights Amendment cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” citing Department of Justice opinions affirming that the expired deadline is valid and enforceable.8National Archives. Statement on the Equal Rights Amendment Ratification Process The ERA remains in legal limbo.
What Happens After the 38th State
Once the 38th state approves a proposed amendment, the formal mechanics shift to the Office of the Federal Register at the National Archives. That office collects ratification documents from the states throughout the process, examining each one for legal sufficiency and an authenticating signature. When the required number of authenticated documents arrives, staff draft a formal proclamation for the Archivist of the United States to sign.9National Archives. Constitutional Amendment Process
Federal law spells out the Archivist’s duty. Upon receiving official notice that a proposed amendment has been adopted, the Archivist “shall forthwith cause the amendment to be published” with a certificate listing the states that ratified it and declaring it “valid, to all intents and purposes, as a part of the Constitution of the United States.”10Office of the Law Revision Counsel. 1 U.S. Code 106b – Amendments to Constitution It is a ministerial act. The Archivist does not decide whether the amendment is a good idea. If the legal requirements are met, certification follows.