Eleanor Finch
The process of amending the United States Constitution is a difficult and time-consuming endeavour. Article V of the Constitution outlines two methods for proposing amendments: the first authorises Congress to propose amendments with a two-thirds majority in both houses, while the second method requires Congress to call a convention for proposing amendments at the request of two-thirds of state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of state legislatures, or by conventions in three-fourths of states, as specified by Congress. The ratification process is administered by the Archivist of the United States, who delegates duties to the Director of the Federal Register. The process is considered strict and biased in favour of the federal government, making it challenging to enact amendments that limit federal power. The United States Constitution has been amended only 27 times since 1787, underscoring the challenging nature of the amendment process.
| Characteristics | Values |
|---|---|
| Authority to amend the Constitution | Article V of the Constitution |
| Who proposes Amendments | Congress or Legislatures of two-thirds of the States |
| Who ratifies Amendments | Legislatures of three-fourths of the States or Conventions in three-fourths of the States |
| Difficulty of the process | Very difficult and time-consuming |
| Number of Amendments ratified | 27 |
| Number of proposed Amendments not ratified | 6 |
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What You'll Learn
The process of amending the US Constitution
The process can be initiated in two ways. The first is by a two-thirds majority vote in both the House of Representatives and the Senate, in the form of a joint resolution. The President does not have a role in this process. The second method is by a constitutional convention called for by two-thirds of the state legislatures. This method has never been used.
Once an amendment is proposed, it is sent to the States for ratification. It becomes part of the Constitution once three-quarters of the States (38 out of 50) ratify it. The States send authenticated ratification documents to the OFR, which examines them for legal sufficiency and an authenticating signature. The OFR then drafts a formal proclamation for the Archivist of the United States 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.
In recent times, the certification has become a ceremonial function attended by dignitaries, including sometimes the President. The process of amending the Constitution is challenging, with only 27 successful amendments since the Constitution was drafted in 1787.
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The role of Congress in proposing amendments
The United States Constitution grants Congress the authority to propose amendments. Congress can propose amendments in two ways:
Proposal by Congress
The first method requires a two-thirds majority vote in both the House of Representatives and the Senate. This means that two-thirds of the members present in each house must vote in favour of the amendment, assuming a quorum is present. This procedure has been used by Congress to propose thirty-three amendments, twenty-seven of which were ratified by the states.
Proposal by Constitutional Convention
The second method involves Congress calling for a constitutional convention upon the request of two-thirds of the state legislatures. This method has never been used.
Once an amendment is proposed by Congress, it is submitted to the states for ratification. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist sends a letter of notification along with informational material to the governors of each state. The governors then submit the amendment to their state legislatures or call for a convention, as specified by Congress. An amendment becomes part of the Constitution once it is ratified by three-fourths of the states (38 out of 50 states).
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State legislatures' role in ratification
The authority to amend the US Constitution is derived from Article V of the Constitution. While Article V outlines the procedures for amending the Constitution, it does not detail the ratification process. The process of ratifying an amendment to the Constitution involves the federal government and state legislatures or state conventions.
State legislatures play a crucial role in the ratification process. After Congress proposes an amendment, governors formally submit the amendment to their state legislatures or call for a convention, depending on Congress's instructions. State legislatures can take action on a proposed amendment without waiting for official notice. When a state ratifies an amendment, it sends an original or certified copy of the state's action to the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many duties to the Director of the Federal Register, who examines ratification documents for legal sufficiency and authenticity.
To become part of the Constitution, an amendment must be ratified by three-fourths of the states (38 out of 50 states). State legislatures have the power to approve or reject proposed amendments, and their decisions are final and conclusive. The states have ratified 27 amendments, including the first ten amendments known as the Bill of Rights.
In summary, state legislatures are responsible for reviewing and taking action on proposed constitutional amendments. Their ratification decisions are crucial, as a three-fourths majority of state legislatures is required for an amendment to become part of the Constitution. The states' role in ratification ensures that any changes to the Constitution reflect the consent and interests of a significant majority of the country.
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The Archivist's role in administering the process
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the process of amending the Constitution. The Archivist's role is to certify a state's ratification of a constitutional amendment, which is a final and conclusive decision. This certification is done with the assistance of the Office of the Federal Register (OFR), which examines ratification documents for facial legal sufficiency and authenticating signatures.
When 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 retains these documents until an amendment is adopted or fails, at which point the records are transferred to the National Archives for preservation. The Archivist does not make any substantive determinations regarding the validity of state ratification actions.
Once the OFR verifies that it has received 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 U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete.
The Archivist's role in certifying amendments is primarily ceremonial, with various dignitaries, including the President, sometimes in attendance. The Archivist performed this duty for the first time on May 18, 1992, to recognize the ratification of the 27th Amendment, which was proposed in 1789 and ratified in 1992. This amendment limits Congress's ability to change its pay until the next term.
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Criticisms of the amendment process
The process of amending the US Constitution has faced several criticisms. One of the main criticisms is that the process is too difficult and strict, making it hard to enact amendments. This is partly due to the requirement of securing approval by two-thirds of both Houses of Congress and three-quarters of the states. The strict process has led to only 27 successful amendments out of over 11,000 proposals since the Constitution was drafted in 1787.
Another criticism is that the process is biased in favor of the federal government and does not allow for amendments that would limit the national government's power. This has resulted in an expansion of federal power and an increase in the influence of judges in interpreting the Constitution. Some argue that this interpretation has become vague and loosely applied to modern issues, technologies, and philosophical developments, potentially undermining the nation's allegiance to the Constitution.
The size difference between states is another issue, with compromises being harder to reach today than they were in 1790 when there was a smaller disparity in population. The process also does not account for modern circumstances and values, and some critics argue that the Supreme Court should engage in non-originalist judicial interpretation to address this.
Additionally, there is uncertainty regarding a state's ability to rescind its ratification of an amendment before the process is completed. While some commentators argue that a state cannot rescind its ratification once it has been made, others contend that a state should be able to do so until the amendment process is finalized. This ambiguity could lead to confusion over whether a proposed amendment is officially part of the Constitution or not.
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Frequently asked questions
The process of amending the Constitution is outlined in Article V of the Constitution. It involves two methods: the first method authorizes Congress to propose amendments when two-thirds of both houses deem it necessary, while the second method requires Congress to call a convention for proposing amendments at the request of two-thirds of the state legislatures. Amendments must then be ratified by three-fourths of the state legislatures or conventions.
The federal government, through Congress, plays a crucial role in the amendment process. Congress initiates the process by proposing amendments or calling for a convention. Once an amendment is ratified by the required number of states, Congress receives official notification, and no further action is required.
While Congress plays a significant role in proposing and facilitating the amendment process, it cannot directly block or reject a proposed amendment. The power to ratify an amendment lies solely with the states, and once the required number of states ratify an amendment, it becomes part of the Constitution without the need for further congressional action.
Amending the Constitution is considered a challenging and time-consuming process. The requirement to secure approval from two-thirds of both houses of Congress and achieve ratification from three-fourths of the states makes it a high bar to clear. The strict amendment process ensures that changes to the Constitution are carefully considered and reflect significant consensus.
