Amending The Constitution: Can States Bypass Congress?

The process of amending the US Constitution is a complex and challenging endeavour, as the framers intended when they drafted the document in 1787. It has been amended only 27 times since then, and any proposed changes must have a significant impact on all Americans or secure the rights of citizens. There are two methods for initiating the amendment process: the first requires a two-thirds majority vote in both the House of Representatives and the Senate, while the second involves a constitutional convention called for by two-thirds of the state legislatures. Notably, no amendments have been proposed through a constitutional convention to date. Once an amendment is proposed, it must be ratified by three-quarters of the state legislatures. This intricate process ensures that any changes to the Constitution are carefully considered and broadly supported.

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State constitutions are easier to amend than the federal Constitution

State constitutions are far easier to amend than the federal constitution. The US Constitution is difficult to change and has only been amended 27 times. In contrast, state constitutional amendments are adopted regularly, with the current constitutions of the 50 states having been amended around 7,000 times.

The US Constitution can be amended in two ways. Firstly, Congress can propose an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. Secondly, a constitutional convention can be called for by two-thirds of the state legislatures. However, none of the 27 amendments to the Constitution have been proposed by constitutional convention.

State constitutions, on the other hand, offer multiple paths for amendment. State legislatures generate more than 80% of constitutional amendments that are considered and approved annually. Some states require amendments to secure the backing of a majority of legislators, while others require supermajority legislative support. The easiest route to legislative approval of amendments is to permit approval by a majority vote in a single session, which is possible in 10 states.

In 18 states, voters can place a constitutional amendment directly on the ballot without legislative involvement if they collect a certain number of signatures. Citizen-initiated amendments account for fewer than 2 out of every 10 amendments adopted annually. However, in states like California and Colorado, these amendments are considered more frequently. State constitutional conventions were once called regularly but have become less common in recent decades. Despite this, they continue to offer a potential path for amending state constitutions.

The ease of amending state constitutions can have significant implications. While state constitutions cannot infringe on rights provided by the US Constitution, they can protect additional rights. For example, Michigan voters approved a constitutional amendment that adds an explicit "fundamental right to vote," and Nevada will adopt a state-level Equal Rights Amendment, joining 27 other states with similar provisions.

Two-thirds of state legislatures can ask Congress to call a Constitutional Convention

The United States Constitution was written to be a durable document that would "endure for ages to come". As a result, the process of amending it is intentionally difficult and time-consuming. The Constitution has only been amended 27 times since it was drafted in 1787, and none of these amendments have been proposed by a Constitutional Convention.

The process of amending the Constitution is outlined in Article V of the Constitution. Once an amendment has been proposed, either by Congress or a Constitutional Convention, it must be ratified by three-fourths of the state legislatures or three-fourths of state conventions. When an amendment is ratified, the state sends the Archivist of the United States an original or certified copy of the state action. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register, who examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them until the amendment is adopted or fails.

Once three-fourths of the states have ratified the amendment, 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 published in the Federal Register and U.S. Statutes at Large and serves as official notice that the amendment process has been completed. While the process for amending the U.S. Constitution is challenging, state constitutions are amended regularly and are much easier to modify.

Citizen-initiative processes for enacting amendments

The United States Constitution is difficult to change and has only been amended 27 times. On the other hand, state constitutions are amended regularly, with 50 states amending their constitutions around 7,000 times.

Citizen-initiative processes, also known as ballot initiatives, allow citizens to propose and vote on constitutional amendments directly, without legislative referral. This form of direct democracy is only available at the state level and does not exist for federal legislation.

The details of the citizen-initiative process vary from state to state. For example, some states require another round of signatures to qualify an initiative for the ballot if the legislature does not approve it. In other states, if the legislature passes a similar law, it precludes an election on the original proposal. Additionally, some states have geographic distribution requirements for signature collection, such as requiring signatures from a certain percentage of registered voters in every state senate district.

As of 2024, 18 states allow citizens to initiate constitutional amendments. These states include California, Colorado, Massachusetts, and Mississippi. However, the Mississippi Supreme Court has rendered the state's constitutional initiative process unusable until it is revised to accurately reflect the number of congressional districts from which signatures must be collected.

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The ratification process

If Congress proposes an amendment, it must be approved by a two-thirds majority vote in both the House of Representatives and the Senate. The President does not have a constitutional role in this process, so the joint resolution does not require presidential approval. Once approved, the resolution is sent to the states for ratification.

If the states initiate the process, two-thirds of state legislatures must call for a convention to propose amendments. This convention option has yet to be invoked.

Regardless of which body proposes the amendment, ratification requires the approval of three-fourths of the states (38 out of 50). This can be achieved through the state legislatures or ratifying conventions, with Congress determining the mode of ratification.

Once an amendment is ratified by the required number of states, the Archivist of the United States certifies its validity and publishes a formal proclamation in the Federal Register and U.S. Statutes at Large. This certification serves as official notice to Congress and the nation that the amendment process is complete, and the amendment becomes an operative part of the Constitution.

The role of the Archivist of the United States

The process of amending the US Constitution is outlined in Article V of the Constitution. 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.

In the context of amending the Constitution, the Archivist of the United States plays a crucial role. Once Congress proposes an amendment, the Archivist is responsible for administering the ratification process. 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 to the Director of the Federal Register, who examines the ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them until an amendment is adopted or fails.

Once three-quarters of the states (38 out of 50) have ratified a proposed amendment, the Office of the Federal Register (OFR) verifies the receipt of the required number of authenticated ratification documents. The Archivist then 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 has been completed.

The Archivist of the United States also has duties concerning the custody of Electoral College documents in US presidential elections, such as certificates of ascertainment and certificates of vote produced by the electors of each state. These administrative responsibilities are often delegated to the Director of the Federal Register.

Overall, the Archivist of the United States plays a vital role in the amendment process by ensuring the proper administration and certification of ratified amendments to the Constitution.

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