Amending The Constitution: Powers States Possess

The process of amending the US Constitution is a difficult and time-consuming task. The authority to amend the Constitution is derived from Article V, which outlines two ways to propose an amendment: through a two-thirds majority vote in Congress or by a constitutional convention called for by two-thirds of state legislatures. Once proposed, an amendment must be ratified by three-fourths of state legislatures. Citizen-initiated amendments in some states, such as Massachusetts, must secure support from a portion of the legislature before appearing on the ballot. Additionally, states like Arizona and Oklahoma have set higher bars for amendment supporters to collect signatures. The process ensures that any amendment has a significant impact on all Americans or secures citizens' rights.

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The process to amend the US Constitution

Once an amendment is proposed, it is forwarded to the National Archives and Records Administration (NARA) for processing and publication. The Office of the Federal Register (OFR) within NARA adds legislative history notes and publishes the amendment in slip law format. The OFR also prepares an information package for the states.

The proposed amendment is then submitted to the state legislatures or a state convention, as specified by Congress. A proposed amendment becomes part of the Constitution when ratified by three-fourths of the states (38 out of 50 states). When a state ratifies an amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who administers the ratification process. The OFR examines the ratification documents for authenticity and legal sufficiency.

Once the OFR verifies the required number of authenticated ratification documents, it 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 serves as official notice that the amendment process is complete. The process ensures a thorough and deliberate approach to amending the Constitution, reflecting its enduring significance.

Citizen-initiated amendments

The process of amending the US Constitution is outlined in Article V of the Constitution. While the President does not have a constitutional role in this process, amendments are typically proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate.

State constitutions, on the other hand, are much easier to modify, and state constitutional amendments are adopted regularly. Seventeen states currently allow for citizen-initiated amendments, which account for fewer than 2 out of every 10 amendments adopted across the country each year. However, in states like California and Colorado, citizen-initiated amendments are considered at a faster pace.

In each of these seventeen states, citizens must gather a certain number of signatures in support of holding a vote on the amendment. The number of signatures required varies by state. Arizona and Oklahoma have the highest requirement, needing signatures from 15% of voters in the last gubernatorial election. In contrast, Massachusetts has the lowest requirement at 3%. Some states also have geographic distribution requirements, such as Colorado, which mandates signatures from 2% of registered voters in every state senate district.

Once supporters meet the signature requirements and other legal requirements, the amendment is placed on the ballot, and legislators cannot block it. After a state ratifies a proposed amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50).

State constitutional conventions

The authority to amend the US Constitution is derived from Article V of the Constitution. This article establishes an alternative method for amending the Constitution by a convention of the states. It provides that Congress shall call a convention for proposing amendments upon the request of two-thirds of the state legislatures (34 out of 50 states). This method has never been used; all 27 amendments to the Constitution have been proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate.

The process of amending the Constitution through a state convention does not require the consent of the federal government. However, any amendment proposed by the convention goes through the same ratification process as amendments proposed by Congress. It must be approved by three-fourths of the states (38 out of 50).

There are ongoing debates about the interpretation of Article V. Some scholars argue that Congress must call a convention upon the request of two-thirds of the states, while others debate the scope of such a convention and Congress's control over it.

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The role of the Archivist

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), plays a crucial role in the process of amending the Constitution. The Archivist is responsible for administering the ratification process after Congress proposes an amendment.

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 the presence of an authenticating signature.

Once the Director of the Federal Register confirms the validity of the documents, the Archivist's role becomes even more critical. The Archivist is tasked with certifying that the amendment is valid and has become an official part of the Constitution. This certification is a formal proclamation, published in the Federal Register and U.S. Statutes at Large. It serves as the official notice to Congress and the nation that the amendment process has been successfully completed.

The Archivist's signature on the certification has become a ceremonial function, often attended by various dignitaries, including the President. While the Archivist does not make substantive determinations regarding the validity of state ratification actions, their certification of the facial legal sufficiency of ratification documents is considered final and conclusive.

To date, the Archivist of the United States, Don W. Wilson, has been the only Archivist to certify a constitutional amendment—the 27th Amendment—in 1992. This amendment, first proposed in 1789, limits Congress's ability to change its pay until the next term.

What cannot be amended

The process of amending the US Constitution is outlined in Article V of the Constitution. The Constitution can be amended either 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. Notably, none of the 27 amendments to the Constitution have been proposed by constitutional convention.

Amending the US Constitution is a challenging process, and it has only been amended 27 times. In contrast, state constitutions are amended regularly, with the current constitutions of the 50 states having been amended around 7,000 times.

While the US Constitution does not outline specific topics that cannot be amended, there are certain limitations and procedures that must be followed. For example, no amendment can deprive a state of its equal suffrage in the Senate without its consent. Additionally, there is debate among scholars regarding the interpretation of the last two sentences of Article V and whether they effectively prohibit amendments on certain subjects.

The process of amending the Constitution involves several steps, including proposing amendments, ratification, and certification. The Archivist of the United States and the Director of the Federal Register play crucial roles in administering the ratification process and ensuring its legal sufficiency.

While states have multiple paths for amending their constitutions, the US Constitution's amendment process is deliberately designed to be challenging. This ensures that any changes made to the nation's foundational document are carefully considered and widely accepted.

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