Amending The Constitution: State Initiation

The process of amending a constitution varies across different countries and states. In the United States, the authority to amend the Constitution is derived from Article V, which outlines two methods for proposing amendments: a two-thirds majority vote in both houses of Congress or a constitutional convention called for by two-thirds of state legislatures. States also have their own processes for amending their constitutions, which are generally more flexible than the federal Constitution. These processes may include legislative processes, state constitutional conventions, and citizen or voter initiatives. While some states require simple majority approval for amendments, others mandate supermajority support or a combination of both. The amendment process is designed to be challenging, ensuring that any changes have a significant impact on the country or protect citizens' rights.

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State legislatures vs. constitutional convention

The authority to amend the US Constitution is derived from Article V of the Constitution. There are two methods by which amendments to the Constitution 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 (34 out of 50).

State legislatures play a crucial role in the constitutional amendment process, as they have the power to initiate the process by calling for a convention. This is typically done through a majority or supermajority legislative vote, depending on the state requirements. In some states, the legislature can call a convention without seeking voters' approval, while in others, a referendum must be approved by a majority of voters. Additionally, 17 states allow for citizen-initiated amendments, where supporters must gather a certain number of signatures for a vote on the amendment.

On the other hand, a constitutional convention, also known as an Article V Convention or amendatory convention, has never been used to propose amendments to the US Constitution. Despite this, it remains a potential path for amending state constitutions. Conventions are typically called by legislators and require a majority or supermajority legislative vote. In some states, a referendum on calling a convention must be submitted to and approved by voters. However, a few states allow for bypassing the legislature and calling a convention through the initiative process.

While state legislatures provide a direct pathway for initiating the constitutional amendment process, constitutional conventions offer an alternative mechanism. The choice between the two methods depends on the specific circumstances and requirements of each state. It's worth noting that state constitutions are much easier to amend compared to the federal Constitution, and states have the flexibility to design their own amendment processes.

Citizen-initiative processes

Seventeen states currently provide for citizen-initiative processes to amend their constitutions, and the procedures for qualifying citizen-initiated amendments vary across these states. In each of these states, amendment proponents must gather a certain number of signatures in support of holding a vote on the amendment. The signature-collection requirements are often tied to the number of votes cast in the last gubernatorial election, with Arizona and Oklahoma setting the highest bar at 15%, and Massachusetts the lowest at 3%. Some states also have geographic distribution requirements, such as Colorado, which requires signatures from 2% of registered voters in every state senate district.

Once supporters meet the signature and other legal requirements, the amendment is placed on the ballot, and in most states, a simple majority of voters is required for approval. However, some states impose higher thresholds, such as Florida, which requires 60% voter approval.

It is important to note that while no court or legislature needs to approve a citizen-initiated amendment, they may be subject to judicial review and can be struck down if they conflict with the U.S. Constitution. Additionally, in some states, the legislature can play a role in the process by either approving the measure, ignoring it, or proposing an alternative amendment to appear on the ballot alongside the citizen-initiated amendment.

Legislator's role in citizen-initiated amendments

Legislators cannot play a gate-keeping role by blocking a citizen-initiated amendment from appearing on the ballot in all but one state where the constitutional initiative process is available. Once supporters meet the signature requirements and other legal requirements, the amendment is placed on the ballot without any role for the legislature.

However, in Massachusetts, citizen-initiated amendments must secure support from one-fourth of the members of the legislature, sitting in joint session and voting in two consecutive sessions.

In addition, state constitutional conventions, which are generally called by legislators, offer another path for amending state constitutions. Legislators are required to approve a convention referendum, with a majority legislative vote needed to call a convention referendum in most states and a supermajority legislative vote in others. In all but a few states, a referendum on calling a convention must then be submitted to and approved by a majority of voters.

While states offer multiple paths for amending their constitutions, which are much easier to change than the federal Constitution, citizen-initiated amendments account for fewer than 2 out of every 10 amendments adopted around the country each year.

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Legislative processes

The process of amending the US Constitution is a difficult and time-consuming endeavour. It is initiated by Congress, which proposes an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. This proposal is then forwarded directly to the National Archives and Records Administration (NARA) for processing and publication. The NARA's Office of the Federal Register (OFR) plays a crucial role in this process by adding legislative history notes, publishing the joint resolution, and assembling an information package for the states.

While the President does not have a constitutional role in the amendment process, the OFR's role is essential. It examines ratification documents for legal sufficiency and authentic signatures. 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. This certification is then published in the Federal Register, marking the completion of the amendment process.

At the state level, the process of amending state constitutions varies across the 50 states. Some states, like Alabama and Alaska, offer two mechanisms for amendment: a legislative process and a state constitutional convention. In Alabama, a simple majority vote (50% plus 1) is required for voters to approve constitutional amendments. In Alaska, a two-thirds vote in each legislative chamber is necessary to refer an amendment to the ballot, and amendments do not require the governor's signature.

Additionally, some states provide alternative paths for enacting amendments. Seventeen states allow for citizen-initiative processes, where supporters of an amendment must gather a certain number of signatures to hold a vote. The number of signatures required varies, with Arizona and Oklahoma having the highest bar at 15%, while Massachusetts requires only 3%. These citizen-initiated amendments generally bypass the legislature and go directly to the ballot once the signature requirements are met.

In summary, the legislative processes involved in amending the US Constitution and state constitutions are complex and differ at the federal and state levels. While Congress initiates the federal amendment process, states have multiple paths to amend their constitutions, offering more flexibility than the federal process.

Ratification by the Archivist

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. The Archivist and the Director follow procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties until NARA assumed responsibility in 1985.

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with informational material prepared by the OFR. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register.

The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

When 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 and serves as official notice to Congress and the Nation that the amendment process has been completed. The Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.

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