Omar Bennett
The United States Constitution has 27 amendments, and the process of amending it is a difficult one. Amendments can be proposed by Congress or through a constitutional convention demanded by state legislatures. The Constitution's Article V requires that an amendment be proposed by two-thirds of the House and Senate or by a constitutional convention called for by two-thirds of state legislatures. The process of changing the Constitution through means other than the formal amendment process has occurred historically and will likely continue. For instance, the Supreme Court's decisions have effectively modified the Constitution. The Constitution can also be expanded by Congress through the legislative process, as granted by the framers. While the process of rescinding a constitutional amendment is not explicitly mentioned, the ratification process is detailed, and it is noted that states have sent official documents to record the rescission of prior ratification.
| Characteristics | Values |
|---|---|
| Number of amendments to the Constitution | 27 |
| Most recent amendment | 27th Amendment, 1992 |
| Number of amendment proposals | 11,699 |
| Amendments ratified by three-fourths of the states | 27 |
| Amendments approved by Congress but not ratified by states | 6 |
| Amendments repealed | 1 (18th Amendment) |
| States that attempted to rescind their ratification | 2 (New Jersey and Ohio) |
| Minimum ratification requirement for amendments | Three-fourths of the states (38 of 50) |
| Amendment proposal requirement | Two-thirds majority in both the House and Senate |
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What You'll Learn
The process of rescinding a constitutional amendment
To rescind an amendment, a new amendment must be proposed and ratified. This can be initiated by any member of the House of Representatives or the Senate, and it will undergo the standard legislative process in the form of a joint resolution. For the proposal to be approved, a two-thirds supermajority vote in both the House and the Senate is required. The President does not have a constitutional role in this process, so their signature or approval is not necessary.
Once approved by Congress, the proposed amendment is sent to the governors of all 50 states for their approval, called "ratification." The governors then submit the amendment to their state legislatures or call for a convention, as specified by Congress. For an amendment to be ratified, three-quarters of the states (38 out of 50 states) must approve it.
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), administers the ratification process. The Archivist, along with the Director of the Federal Register, follows established procedures and customs, even though Article V of the Constitution does not outline the ratification process in detail.
While the process of rescinding an amendment is challenging, it is not impossible. The 18th Amendment, ratified in 1919 to prohibit the manufacture and sale of intoxicating liquors, was later repealed by the 21st Amendment in 1933 due to its growing unpopularity.
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The rarity of constitutional amendments
The US Constitution has only been amended 27 times, despite thousands of proposed changes since the original document was approved in 1788. This is because the process of amending the Constitution is intentionally difficult. The framers of the Constitution knew that it would need to be amended, but also that it should never be amended frivolously or haphazardly.
Amendments can be proposed by Congress or through a constitutional convention demanded by state legislatures. For an amendment to become part of the Constitution, it must be ratified by three-quarters of the states. This can be done through state legislatures or state conventions, as decided by Congress. The Archivist of the United States administers the ratification process, which is carried out by the Director of the Federal Register.
It is worth noting that there are other ways to interpret and adapt the Constitution without formally amending it. For example, the Supreme Court's decisions can effectively modify the Constitution, and Congress can enact laws that expand the Constitution to address unforeseen events.
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The role of Congress in proposing amendments
The process of amending the Constitution of the United States is derived from Article V of the Constitution. The process involves two methods for proposing amendments, both of which require the involvement of Congress.
The first method, which has been utilised for all 27 amendments, involves Congress proposing an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. This proposal takes the form of a joint resolution, which is then forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes and publishes the resolution in slip law format, along with an information package for the States.
The second method, which has never been used, involves Congress calling for a constitutional convention upon the request of two-thirds of the state legislatures. This method allows for the proposal of amendments outside of Congress, but it still requires Congress to initiate the process by calling for the convention.
Once an amendment is proposed, either by Congress or through a constitutional convention, it is submitted to the States for their consideration. The Archivist of the United States, who heads NARA, plays a crucial role in this process. The Archivist, through the Director of the Federal Register, administers the ratification process and ensures its procedural correctness.
The proposed amendment is sent to the Governors of each State, who then formally submit it to their State legislatures. A proposed amendment becomes part of the Constitution once it is ratified by three-fourths of the States (38 out of 50). The OFR verifies the receipt of authenticated ratification documents and drafts a formal proclamation for the Archivist to certify the amendment's validity. This certification is published in the Federal Register and serves as official notice to Congress and the Nation that the amendment process is complete.
While Congress plays a pivotal role in proposing amendments, it is worth noting that the President does not have a constitutional role in the amendment process. The Supreme Court has affirmed that the submission of a constitutional amendment does not require the President's action or signature.
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The role of the Archivist in the amendment process
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process of constitutional amendments. The Archivist's role in the amendment process includes submitting proposed amendments to the states for their consideration and managing the constitutional amending process.
Once Congress proposes an amendment, the Archivist sends a letter of notification to each state governor, along with informational material prepared by the Office of the Federal Register (OFR). The Archivist's role at this stage is to facilitate communication between Congress and the states, ensuring that the proposed amendment is formally submitted to the state legislatures or conventions, as specified by Congress.
When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action. The Archivist then conveys this information to the Director of the Federal Register, who examines the ratification documents for facial legal sufficiency and authenticity. The Director maintains custody of these documents until an amendment is adopted or fails, after which they are transferred to the National Archives for preservation.
The Archivist's role in the amendment process also includes certifying the validity of an amendment once it has been ratified by three-quarters of the states (38 out of 50 states). The OFR drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process has been completed.
In addition to their role in the amendment process, the Archivist of the United States has other duties and responsibilities. These include maintaining custody of state ratifications of amendments, receiving the original version of all statutes once enacted, and overseeing the custody of Electoral College documents during presidential elections. The Archivist also has responsibilities pertaining to the preservation and supervision of the National Archives.
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The ratification of amendments by state legislatures
The process of amending the Constitution of the United States is derived from Article V of the Constitution. Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures.
Once an amendment is proposed by Congress, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist follows procedures and customs established by the Secretary of State and the Administrator of General Services. The Archivist has delegated many duties associated with this function to the Director of the Federal Register.
The proposed amendment is then submitted to the states for their consideration. The Governors formally submit the amendment to their State legislatures or call for a convention, depending on what Congress has specified. In some cases, State legislatures have not waited to receive official notice before taking action on a proposed amendment.
For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50 states). This can be achieved through the state legislatures or state ratifying conventions, depending on the mode of ratification specified by Congress.
It is worth noting that there are unresolved questions about whether a state can ratify an amendment after initially rejecting it or rescind its ratification of an amendment. In the case of Coleman v. Miller, the Supreme Court indicated that these were political questions for Congress to resolve.
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Frequently asked questions
No, Congress cannot rescind an amendment on its own. An amendment can be proposed by Congress or through a constitutional convention demanded by state legislatures, but it is up to the states to approve a new amendment, with three-quarters of the states voting to ratify it.
The process of rescinding a constitutional amendment would involve proposing a new amendment that repeals the original amendment. This new amendment would need to be proposed by two-thirds of both houses of Congress and then ratified by three-quarters of the states.
Yes, the 18th Amendment, which established Prohibition, was repealed by the 21st Amendment in 1933.
