States' Powers: Constitutional Amendments Override?

The Constitution of the United States is difficult to change and has only been amended 27 times. However, state constitutions are amended regularly and are much easier to modify. The Tenth Amendment to the Constitution, ratified in 1791, specifies that any powers not explicitly given to the federal government nor prohibited by it from the states are reserved for the states or the people. This has been interpreted as a limitation on the federal government's powers, and several Supreme Court decisions have invoked the Tenth Amendment to determine if the federal government overstepped its authority. While states have the power to amend their constitutions and propose changes to the US Constitution, they cannot supersede Constitutional Amendments, which are part of the supreme law of the land.

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State constitutions are amended regularly, unlike the federal Constitution

The US Constitution is notoriously challenging to amend, and as a result, it has only been amended 27 times. In contrast, state constitutions are amended with relative frequency, reflecting the changing will and interests of the people. State constitutions are more accessible and amenable to change, and this is reflected in the sheer number of amendments. For example, the Alabama constitution has been amended numerous times, with hundreds of amendments to a document that is already over 350,000 words long.

The ease of amending state constitutions is evident when comparing the number of amendments. The 50 state constitutions have been amended approximately 7,000 times collectively, with some states amending their constitutions more than three to four times per year on average. This includes states like Alabama, Louisiana, South Carolina, Texas, and California. On the other hand, some states, like Tennessee, Kentucky, Indiana, Illinois, and Vermont, amend their constitutions less frequently, averaging once every three to four years.

The reasons for these variations are due to the different requirements and processes for amending state constitutions. Some states require only a simple majority to pass an amendment, while others demand a supermajority legislative vote. Additionally, 18 states allow voters to bypass the legislature and place amendments directly on the ballot through an initiative process, providing a direct pathway for citizens to drive change.

The accessibility and variability of state constitutions have significant implications. They offer a dynamic legal framework that can address contemporary issues and reflect the will of the people. For example, state constitutions have clauses guaranteeing a right to a "clean and healthful environment," which has no federal counterpart. This flexibility allows states to act on pressing concerns, such as environmental protection, and provide rights and remedies not available under federal law.

The Tenth Amendment clarifies the federal government's limited powers

The Tenth Amendment to the United States Constitution, ratified on December 15, 1791, clarifies the federal government's limited powers. It states that any powers not specifically granted to the federal government by the Constitution are reserved for the states or the people. This amendment was proposed by Thomas Burke, a strong advocate for states' rights, to ensure clarity and prevent ambiguity regarding the distribution of power between state and federal governments.

The Tenth Amendment embodies the principle of federalism, which entails a power-sharing agreement between the federal government and individual states. It emphasises that the federal government's authority is confined to the powers explicitly delegated to it by the Constitution. Consequently, any powers not expressly prohibited by the Constitution are retained by the states or the people. This amendment was particularly aimed at addressing the concerns of Anti-Federalists, who opposed the formation of a powerful federal government.

The Supreme Court has affirmed the Tenth Amendment's role in maintaining the federal government's limited powers. In United States v. Sprague (1932), the Court asserted that the amendment merely reiterated the relationship between national and state governments as established by the Constitution. Nevertheless, the amendment has been invoked in several Supreme Court decisions to determine whether the federal government has overstepped its authority. For example, in United States v. Lopez (1995), the Supreme Court ruled that a federal law mandating "gun-free zones" on public school campuses was unconstitutional, as there was no clause in the Constitution authorising it.

Additionally, the Tenth Amendment has been used as a basis for states' rights arguments in various areas, such as labour and environmental controls. However, it is important to note that laws that seemingly circumvent Supreme Court decisions or federal law, often termed "laws of nullification," do not explicitly advocate for defying federal authority. Instead, they reflect the complex dynamics between state and federal governments in the federal system.

State legislatures' role in the amendment process

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. The 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. Alternatively, it can be proposed by a constitutional convention 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 legislatures play a crucial role in the amendment process, as they can initiate and ratify amendments. Amendments proposed by Congress are submitted to the states for their consideration. Governors then formally submit the amendment to their state legislatures, and the state legislatures can take action by ratifying the proposed amendment. A proposed amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50 states). State legislatures generate more than 80% of the constitutional amendments considered and approved annually across the country.

The process for crafting and approving amendments varies among state legislatures. Some states require amendments to secure the support of the majority of legislators, while others mandate supermajority legislative endorsement. Additionally, some states necessitate legislative backing in a single session, while others require two consecutive sessions. The simplest path to legislative approval of amendments is through the endorsement of a majority vote in a single session, which is possible in ten states.

In the context of citizen-initiated amendments, the role of state legislatures can vary. In most states, once supporters meet the signature and legal requirements, the amendment proceeds to the ballot without legislative involvement. However, in Massachusetts, citizen-initiated amendments must secure the support of one-fourth of the legislature in two consecutive sessions before appearing on the ballot. Once on the ballot, citizen-initiated amendments typically require ratification by a simple majority of voters, with a few states mandating a supermajority.

While states play a significant role in the amendment process, it is essential to note that the President does not have a constitutional role in this process. The joint resolution proposing an amendment does not require the President's signature or approval. Instead, it is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.

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Citizen-initiated amendments: the process and pace of adoption

Citizen-initiated amendments, also known as ballot initiatives, are a process that allows citizens to propose statutes or constitutional amendments. This process varies depending on the state. In some states, there is an indirect process where legislatures have the option to approve proposals outright. There are 18 states that allow citizens to initiate constitutional amendments, with Massachusetts and Mississippi being the only two states with an indirect process.

To get an amendment on the ballot, citizens must collect petition signatures from a certain minimum number of registered voters in a state. This number varies by state and is often tied to the number of votes cast in the last gubernatorial election. Arizona and Oklahoma have the highest bar, requiring 15% of the votes cast in the last gubernatorial election. On the other hand, Massachusetts has the lowest requirement at 3%. Just over half of the states also require signatures to be collected from a certain percentage of registered voters in every state senate district.

Once the required number of signatures has been collected, the amendment is placed on the ballot, and voters decide on the proposal. In Massachusetts, citizen-initiated amendments must also secure support from one-fourth of the members of the legislature. In addition, some states, like Minnesota, Mississippi, and Wyoming, require that the amendment receives approval from a majority of all ballots cast in the election, not just a majority of the votes specifically cast on the amendment.

While citizen-initiated amendments are considered at a brisk pace in some states, they account for fewer than 2 out of every 10 amendments adopted annually across the country.

The Archivist's role 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 under the provisions of 1 U.S.C. 106b. The Archivist plays a crucial role in the amendment process, ensuring that changes to the Constitution are carried out lawfully and maintaining the integrity of the process.

While the Archivist has delegated many of the ministerial duties to the Director of the Federal Register, they still follow established procedures and customs previously performed by the Secretary of State and the Administrator of General Services before NARA became an independent agency in 1985. The Archivist submits proposed amendments to the States for their consideration by sending a letter of notification to each Governor, along with informational material prepared by the Office of the Federal Register (OFR).

Once a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is then conveyed to the Director of the Federal Register. The OFR examines these documents for facial legal sufficiency and an authenticating signature. The Director acknowledges receipt and maintains custody of the documents until an amendment is adopted or fails, at which point they are transferred to the National Archives for preservation.

When the OFR verifies that it has received the required number of authenticated ratification documents (ratification by three-fourths of the States, or 38 out of 50), 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 U.S. Statutes at Large, serving as official notice to Congress and the Nation that the amendment process is complete. The Archivist's certification of the facial legal sufficiency of ratification documents is considered final and conclusive.

In summary, the Archivist of the United States plays a vital role in the amendment process by facilitating communication between the States and Congress, ensuring the legality and authenticity of ratification documents, and providing final certification that an amendment has become part of the Constitution. This role helps maintain the integrity and legality of the constitutional amendment process.

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