Amendments: Can States Change The Constitution?

The process of amending the US Constitution is outlined in Article V of the Constitution. While the states have a role in this process, they cannot directly add amendments to the Constitution. An amendment 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. This proposal is then ratified by three-fourths of the state legislatures or conventions. While states can initiate the amendment process and ratify amendments, the process ultimately involves multiple states and requires significant coordination and agreement across the country. Additionally, the specific procedures for proposing and ratifying amendments are not detailed in Article V, which has led to debates and varying interpretations over time.

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Amendments proposed by Congress

The authority to amend 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. This is followed by a ratification process administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register.

Congress proposes an amendment in the form of a joint resolution, which is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. An information package is also assembled for the States, including formal "red-line" copies of the joint resolution and copies in slip law format.

Once an amendment is proposed by Congress, it is submitted to the State legislatures. In some cases, States have taken action on a proposed amendment before receiving official notice. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is conveyed to the Director of the Federal Register. The OFR examines these documents for authenticity and legal sufficiency. If the documents are in order, the Director acknowledges receipt and maintains custody until the amendment is adopted or fails, at which point the records are transferred to the National Archives for preservation.

A proposed amendment becomes part of the Constitution when it is ratified by three-fourths of the States (38 out of 50). The OFR then drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the Nation that the amendment process is complete.

While the process for Congress to propose amendments is outlined, the ratification process is not described in detail in Article V of the Constitution. The procedures and customs followed by the Archivist and the Director of the Federal Register were established by the Secretary of State and the Administrator of General Services, who previously performed these duties.

Amendments proposed by a convention

The US Constitution provides that an amendment may 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. This process is outlined in Article V of the Constitution.

Despite this provision, none of the 27 amendments to the Constitution have been proposed by constitutional convention. Since 1960, states have submitted more than 180 applications for Article V conventions on various subjects. However, Congress has never deemed the threshold for calling a convention to have been met.

There are many unresolved questions surrounding the state application process. For example, it is unclear how to determine whether state applications address the same subject matter, and whether applications expire after a certain amount of time. Some scholars argue that Article V permits states to apply for a convention on a particular amendment text. However, Congress has its own independent machinery to propose amendments and may use its discretion to refuse to submit amendments resulting from an Article V convention to the states for ratification.

Other issues that have been debated include how delegates to the convention should be chosen, whether Congress, state legislatures, or the delegates should set rules of procedure, the vote threshold required to propose an amendment, and how voting rights on a proposed amendment should be apportioned among the states.

Citizen-initiated amendments

In most states, proponents of a citizen-initiated amendment must collect a certain number of petition signatures from registered voters in the state. The number of signatures required varies by state and is typically based on the number of votes cast in the last gubernatorial election. Some states, like Arizona and Oklahoma, have higher requirements, while others, like Massachusetts, have lower thresholds. Once the required number of signatures is collected, the amendment is placed on the ballot for voter approval.

In some states, citizen-initiated amendments must also secure support from a portion of the state legislature before they can appear on the ballot. For example, in Massachusetts, citizen-initiated amendments must receive support from one-fourth of the members of the legislature in two consecutive sessions. After an amendment qualifies for the ballot, it must be ratified by a simple majority or supermajority of voters, depending on the state. Nevada has an additional requirement where citizen-initiated amendments must be approved by a majority of voters in two consecutive elections.

While citizen-initiated amendments are a way for citizens to have a direct say in amending their state's constitution, they are less common than amendments proposed by the state legislature or other methods. On average, citizen-initiated amendments account for fewer than 2 out of every 10 amendments adopted annually across the country. However, certain states like California and Colorado consider citizen-initiated amendments more frequently.

It is important to note that the process of amending the U.S. Constitution is separate and distinct from amending state constitutions. The U.S. Constitution can be amended through a proposal by Congress with a two-thirds majority vote in both houses or by a constitutional convention called for by two-thirds of the state legislatures. The amendment process for the U.S. Constitution is more complex and has only been amended 27 times, compared to frequent amendments to state constitutions.

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Amendments via state commissions

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. While Congress typically proposes amendments, state legislatures can also play a role in this process. In fact, state legislatures can initiate the amendment process by calling for a constitutional convention. However, it is important to note that none of the 27 amendments to the Constitution have been proposed by a constitutional convention.

State legislatures can propose amendments by calling for a convention with the support of two-thirds of the state legislatures, at which point Congress decides on the mode of ratification. This can be done through the state legislatures or by convention. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states, either through their legislatures or by convention, depending on the mode of ratification specified by Congress.

In addition to the formal process outlined above, states have also explored other avenues for proposing amendments. One notable example is the use of state commissions. While Florida is unique in allowing constitutional commissions to submit amendments directly to voters, other states have formed commissions to recommend amendments for legislative consideration. These commissions provide an alternative mechanism for states to propose and consider potential amendments to their constitutions.

The process in Florida involves two separate commissions authorized by the state's constitution: the Constitution Revision Commission and the Taxation and Budget Reform Commission. The Constitution Revision Commission meets every 20 years and can propose amendments on any subject. On the other hand, the Taxation and Budget Reform Commission meets every 20 years on a staggered timeline with the other commission, focusing solely on tax and budget items. This staggered schedule ensures that one of the commissions meets every 10 years.

While Florida stands out for its direct involvement of commissions in the amendment process, other states have utilized commissions to varying degrees. These commissions play a crucial role in initiating and shaping potential amendments, even if they do not have the final decision-making power to implement them directly.

The ratification process

Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA) for processing and publication. NARA's Office of the Federal Register (OFR) adds legislative history notes and publishes the amendment in slip law format. The OFR also assembles an information package for the states, which includes formal copies of the joint resolution.

The proposed amendment is then submitted to the states for ratification. Each state's process may vary, but generally, the amendment is sent to the state legislatures for approval. Some states may also call for a convention to consider the amendment. When a state ratifies the amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who heads NARA. The Archivist delegates many duties to the Director of the Federal Register, who examines the ratification documents for legal sufficiency and an authenticating signature.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50). Once the OFR verifies that it has received the required number of authenticated ratification documents, the Archivist certifies that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete.

In addition to the above process, some states allow for citizen-initiated amendments. In most states, these amendments must meet signature and legal requirements to be placed on the ballot, and they are generally ratified by a simple majority of voters. However, some states, like Nevada, require approval by a majority of voters in two consecutive elections.

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