How to Repeal an Amendment: Congress, States, and Ratification

To repeal a constitutional amendment, you pass another amendment that cancels it, using the same procedure the Constitution sets out for adding any amendment. Article V requires a two-thirds vote in both chambers of Congress to propose the repeal, followed by ratification from three-fourths of the states — 38 of the 50 today.¹² It has happened once in American history, when the 21st Amendment ended Prohibition in 1933. Everything else about the process — the President’s role, the courts’ role, deadlines, the timing of when a repeal takes effect — flows from those two thresholds.

Proposing the Repeal in Congress

Every amendment ever ratified was proposed by Congress. The Constitution requires a two-thirds vote in both the House and the Senate, and that fraction is calculated against the members present and voting, assuming a quorum, not against the full membership of each chamber.¹ The threshold moves with attendance, but the political mountain does not: getting two-thirds of either chamber to agree on repealing any part of the Constitution is a rare event.

Article V also gives the states a way to bypass Congress entirely. If two-thirds of state legislatures — 34 today — formally ask Congress to call a national convention for proposing amendments, Congress must do so.¹ That path has never been used. Basic procedural questions remain unsettled: how delegates would be chosen, who would control the agenda, whether the convention could be limited to a single topic, and how it would vote. Those unresolved questions are a large part of why neither the states nor Congress has ever triggered it.

The President Is Not Involved

A proposed amendment does not go to the President for signature or veto. The Supreme Court settled this in 1798 in Hollingsworth v. Virginia, holding that proposed amendments do not need to be presented to the President.³ The result would be circular anyway: Article V already demands two-thirds of both chambers, which is exactly the majority needed to override a veto. A President can lobby publicly for or against a repeal, but has no formal power over whether it moves forward.

Ratification by Three-Fourths of the States

A proposed repeal is not law until three-fourths of the states ratify it.² Congress picks which of two ratification routes the states will use.

State Legislatures

The standard route sends the proposal to every state legislature, where each chamber votes up or down on the exact language Congress approved. Legislatures cannot alter a word; a modified ratification is not a valid ratification. Twenty-six of the 27 ratified amendments went through legislatures.

State Conventions

Congress can also require ratification through specially called state conventions, where voters elect delegates who then vote on the amendment. The Constitution and the courts say almost nothing about how these conventions must be run, and when the method was used in 1933, each of the 38 participating states followed its own procedures.⁴ The convention method has been used exactly once, for the 21st Amendment. Congress chose it deliberately, believing elected delegates would reflect public opinion more honestly than legislators, many of whom had built careers on enforcing Prohibition.

The Ratification Clock

Since the 18th Amendment in 1917, Congress has typically written a seven-year deadline into the proposal itself.⁵ If three-fourths of the states do not ratify inside that window, the amendment dies. The Supreme Court upheld this practice in Dillon v. Gloss, reasoning that Congress’s authority over the ratification method includes authority to set a reasonable timeframe.⁶

A deadline is not required. The 27th Amendment, which bars Congress from giving itself an immediate pay raise, was proposed in 1789 and ratified in 1992, more than 202 years later, because the original proposal carried no expiration date.⁵ Any modern repeal proposal would almost certainly include the seven-year limit, and that makes the clock a real constraint. Of the 33 amendments Congress has proposed, only 27 have been ratified.¹ The failures include the Equal Rights Amendment, which expired in 1982, and the D.C. Voting Rights Amendment, which expired in 1985.⁷

When the Repeal Takes Effect

A repeal becomes part of the Constitution the moment the 38th state ratifies it, not when the federal government announces the result. The Supreme Court set out that rule in Dillon v. Gloss.⁶ After the threshold is crossed, the Archivist of the United States publishes a certificate listing the ratifying states and declaring the amendment valid, but that step is ministerial. The legal change is already complete.⁸

The 21st Amendment shows what that means in practice. In United States v. Chambers, the Supreme Court held that ratification of the 21st Amendment immediately rendered the 18th Amendment inoperative, so Prohibition ended the instant Utah’s convention voted on December 5, 1933, before any official proclamation.⁹

What the Only Repeal in History Looked Like

The 18th Amendment banned the manufacture, sale, and transport of alcohol in 1919. Within a decade, public opinion had turned. Congress proposed the 21st Amendment on February 20, 1933, with the required two-thirds votes, and directed that ratification proceed through state conventions rather than legislatures.¹⁰ Most delegates were openly pledged to repeal before their conventions even opened.⁴ The entire process took 288 days. On December 5, 1933, Utah became the 36th state to ratify, which was three-fourths of the 48 states then in the Union, and Prohibition was over.

That speed is unusual. Broad national agreement is hard to build and harder to hold together across a seven-year deadline, which is why most proposed amendments fail and no other repeal has ever succeeded.

The One Provision That Cannot Be Repealed

Article V places a substantive limit on the amendment power itself. The text provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”¹¹ You cannot use an amendment to strip a state of its two Senate seats without that state’s agreement. This is the only permanent substantive restriction on what an amendment can do. A second restriction, protecting the slave trade from amendment before 1808, expired by its own terms. Academics have debated whether the equal-suffrage clause could itself be repealed first, but no political effort has ever tested that theory.

Why Courts Cannot Do It for You

Federal courts, including the Supreme Court, cannot strike down a constitutional amendment or declare it unconstitutional. A properly ratified amendment is the Constitution, and there is no higher law to measure it against. The Supreme Court has said that its own constitutional rulings “can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court.”¹² If you want a provision of the Constitution gone, Article V is the only door.

1
Constitution Annotated. ArtV.1 Overview of Article V, Amending the Constitution
2
Constitution Annotated. Overview of Ratification of a Proposed Amendment
3
LII / Legal Information Institute. Hollingsworth v Virginia, 3 US 378 (1798)
4
LII / Legal Information Institute. Ratification by Conventions
5
Constitution Annotated. Congressional Deadlines for Ratification of an Amendment
6
Justia Law. Dillon v Gloss, 256 US 368 (1921)
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Constitution Annotated. Proposed Amendments Not Ratified by the States
8
Office of the Law Revision Counsel. 1 US Code 106b – Amendments to Constitution
9
Constitution Annotated. Repeal of the Eighteenth Amendment
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Constitution Annotated. Overview of Twenty-First Amendment, Repeal of Prohibition
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LII / Legal Information Institute. Unamendable Subjects
12
Supreme Court of the United States. The Court and Constitutional Interpretation