States' Power: Ratifying Constitutional Amendments

The process of amending the United States Constitution is outlined in Article Five, which details a two-step process requiring proposal and ratification. 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 state legislatures. For an amendment to become part of the Constitution, it must be ratified by three-quarters of state legislatures (38 out of 50 states), or by ratifying conventions in three-quarters of states. This process has been used for every amendment to the Constitution thus far. The ratification process for constitutional amendments varies across states, with some requiring majority approval from voters, while others demand a supermajority or approval in two consecutive elections.

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The ratification process

The process of ratifying constitutional amendments in the United States involves several steps and can be initiated in two ways. Firstly, Congress, with a two-thirds majority vote in both the Senate and the House of Representatives, can propose an amendment. Alternatively, a constitutional convention can be convened upon the request of two-thirds of state legislatures, although this method has never been used.

Once an amendment is proposed, it is sent to the states for ratification. Here, each state legislature votes to ratify or reject the proposed amendment. The vote of each state carries equal weight, regardless of its population or time in the Union. An amendment becomes part of the Constitution when it is ratified by three-quarters of the states (38 out of 50). This process has been consistently followed for every amendment that has been ratified thus far.

It is important to note that there is no specified time limit for the ratification of amendments in the Constitution. However, since 1917, most amendments have included a deadline for ratification, set by Congress. The ratification "clock" starts ticking once the final action is completed in Congress. The inclusion of deadlines in proposed amendments is a more recent practice, with the 20th Amendment being the first to include one.

The process of ratification can also involve citizens through citizen-initiated amendments. In most states, these amendments require a simple majority of voters for ratification, while some states require a supermajority. Additionally, certain states have unique requirements, such as Nevada, where citizen-initiated amendments must be approved by a majority of voters in two consecutive elections.

Once an amendment is ratified by the required number of states, the Office of the Federal Register (OFR) verifies the authenticity of the ratification documents. If they are in order, a formal proclamation is drafted 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, officially concluding the amendment process.

The role of Congress

Congress plays a crucial role in the constitutional amendment process outlined in Article Five of the United States Constitution. This process involves two methods for proposing amendments and two methods for ratifying them.

Firstly, Congress can propose amendments whenever two-thirds of both the House of Representatives and the Senate deem it necessary. This proposal is then sent to the states for ratification. Alternatively, if two-thirds of state legislatures demand it, Congress must call a constitutional convention to propose amendments. This latter method has never been used.

Once an amendment has been proposed, Congress determines the mode of ratification. Ratification can occur through the legislatures of three-quarters of states (38 out of 50) or by ratifying conventions in three-quarters of states. The latter method has only been used once in US history, for the Twenty-First Amendment in 1933. Each state's vote carries equal weight, regardless of its population or time in the Union.

Congress has the power to set a deadline for the ratification of amendments, although Article Five is silent on whether Congress can change this deadline once it has been set. The practice of setting ratification deadlines began in 1917 with the Eighteenth Amendment, and since then, nearly all amendments have included a deadline.

In summary, Congress initiates the amendment process by proposing amendments, and it determines the method of ratification by state legislatures or conventions. Congress also plays a role in setting ratification deadlines, contributing significantly to the amendment process outlined in the US Constitution.

State legislatures vs. state conventions

State legislatures and state conventions are two methods through which constitutional amendments can be ratified. Article V of the US Constitution provides for these two methods of amending the nation's frame of government.

The first method, requiring the involvement of state legislatures, is the most common path to amending the Constitution. In this process, Congress must pass a proposed amendment by a two-thirds majority vote in both the Senate and the House of Representatives. This proposal is then sent to the states for ratification, where it must be approved by a specified number of state legislatures, typically three-fourths of the states (38 out of 50). State legislatures are the primary drivers of constitutional amendments, generating over 80% of the amendments considered and approved annually. The requirements for legislatures to craft amendments vary by state, with some needing majority support and others requiring supermajority legislative backing.

The second method, involving state conventions, has only been used once in American history, for the ratification of the Twenty-First Amendment in 1933. This path is initiated when two-thirds of state legislatures (34 out of 50) apply for a convention to propose amendments. The proposed amendments are then ratified by conventions in three-fourths of the states. While less frequently used, state conventions offer an alternative route to amending the Constitution, particularly when state legislatures are unresponsive or unable to reach the required majority.

It's worth noting that states have the power to amend their constitutions independently, which is a much easier process than amending the federal Constitution. State constitutional amendments are adopted regularly, and each state has its own unique processes and requirements for these amendments. Additionally, in four states, citizens can bypass the legislature and call for a convention through an initiative process, and in 14 states, referendums on calling a convention appear on the ballot at periodic intervals.

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Time limits for ratification

The U.S. Constitution does not explicitly address whether Congress can impose time limits on state ratification of constitutional amendments. However, the practice of setting time limits began with the Eighteenth Amendment in 1917, with Congress imposing a seven-year deadline. Since then, nearly all amendments have included a deadline, with the exception of the Nineteenth Amendment and the Child Labor Amendment.

The question of whether Congress has the authority to impose these deadlines is a subject of debate. In Coleman, Chief Justice Charles Evans Hughes suggested that Congress is responsible for determining whether ratification occurs within a "reasonable time." However, commentators have argued against this interpretation, stating that the Constitution does not grant Congress this power.

The Department of Justice's Office of Legal Counsel (OLC) has advised that in the absence of a congressionally proposed deadline, an amendment remains pending, as states would not know if they could still ratify it. They argue that the implicit time limit thesis introduces uncertainty into the constitutional process, which requires clarity to function effectively.

The Supreme Court, in Dillon v. Gloss (1921), affirmed that Congress has the power to set a definite time limit for ratification. The Court suggested that the process should occur within a reasonable and "sufficiently contemporaneous" time frame to reflect the will of the people at a similar period.

While there is no explicit mention of time limits in Article V, most amendments proposed since 1917 have included deadlines. The lack of a clear constitutional provision on this matter has led to ongoing discussions about the role of Congress in setting time constraints on state ratification processes.

Citizen-initiated amendments

In the direct approach, citizens propose an amendment by collecting petition signatures from a predetermined minimum number of registered voters in a state. Once sufficient signatures are obtained, the proposed amendment is put to a vote, with most states requiring a simple majority for approval. However, some states, like Florida and Colorado, mandate higher thresholds of 60% and 55% voter approval, respectively.

On the other hand, the indirect approach involves submitting the proposed amendment to the state legislature for consideration before it goes to a vote. In Massachusetts, the indirect process requires approval from one-quarter of state senators and representatives voting together in two successive legislative sessions. Mississippi previously employed an indirect process, but a 2021 decision by its Supreme Court effectively banned its use in the amendment process.

The initiative process empowers citizens to drive legislative change and engage in a form of direct democracy. It originated during the Progressive Era (1896-1917) as a way to moderate the power of political parties and bosses. While it has evolved over time, the core principle of citizen involvement in law-making remains intact.

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