Amendments: Understanding The Process Of Change

An amendment is a change or addition to a contract, law, government regulatory filing, or other documents. Amendments allow laws and policies to be refined over time rather than replaced. In the United States, the Constitution has been amended 27 times since it was ratified in 1788. The process of amending the Constitution is outlined in Article V of the Constitution and requires a two-thirds majority vote in both the House of Representatives and the Senate, or a constitutional convention called for by two-thirds of the state legislatures. Amendments can be interwoven into the relevant sections of an existing constitution, directly altering the text, or appended to the constitution as supplemental additions, leaving the original text intact. Once an amendment is ratified by three-fourths of the states, it becomes part of the Constitution.

Explore related products

American Constitutional Law, Volume II: The Bill of Rights and Subsequent Amendments

$102.48 $150

The Democracy Amendments: Constitutional Reforms to Save the United States

$12.92 $24.18

The Constitution of the United States and The Declaration of Independence

$1.99 $6.95

The Constitution of the United States of America: The Declaration of Independence, The Bill of Rights

$9.99 $9.99

The First Amendment: [Connected Ebook] (Aspen Casebook) (Aspen Casebook Series)

$326 $326

American Constitutional Law: Introductory Essays and Selected Cases

$140

How to propose an amendment

The process of proposing an amendment is a difficult and time-consuming task. There are two ways to propose an amendment, as outlined in Article V of the US Constitution.

The first method requires a two-thirds majority vote in both the House and the Senate to propose a constitutional amendment. This procedure has been followed thirty-three times since the Founding, with the proposed amendments then sent to the states for potential ratification.

The second method, which has never been used, involves two-thirds of state legislatures requesting Congress to call a convention for proposing amendments. This method has been debated by scholars, with some arguing that Congress may be able to block such a convention.

Once an amendment is proposed, it must be ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states, as proposed by Congress.

The amendment process is challenging, as evidenced by the failure of supporters of congressional term limits and a balanced budget amendment to get the changes they desired.

The role of Congress

The United States Constitution is not easy to amend. It has been amended only 27 times since it was drafted in 1787, and the process is deliberately difficult and time-consuming. The role of Congress in this process is critical.

Congress can propose an amendment whenever two-thirds of both Houses deem it necessary. The amendment is proposed in the form of a joint resolution, and it must be passed by two-thirds of both houses of Congress. This is a high bar to clear, and it gives a small minority of the country the ability to prevent an amendment from being added to the Constitution. Once an amendment is proposed, it is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.

Congress can also choose how the states might ratify an amendment. An amendment can be ratified by the state legislature, or Congress can provide that the states must call conventions for the single purpose of deciding whether to ratify an amendment. However, three-quarters of the states must ratify the amendment before it is added to the Constitution. This means that 38 of the 50 states must approve of the amendment.

In the past, some state legislatures have not waited to receive official notice before taking action on a proposed amendment. Once a state ratifies a proposed amendment, it sends an original or certified copy of the state action to the Director of the Federal Register, who maintains custody of the documents.

The President does not have a constitutional role in the amendment process, and the Supreme Court has ruled that the submission of a constitutional amendment does not require the action of the President. However, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for ratification.

State legislatures and conventions

The process of proposing an amendment to the U.S. Constitution through state legislatures and conventions is outlined in Article V of the Constitution. This method has never been successfully used to enact an amendment, but it provides an alternative pathway to the more common congressional proposal process. Here's an overview of the process:

The state legislature route begins with proposals from the state legislatures themselves. A single state legislature can start the process by applying to Congress to call a national convention to propose amendments. If two-thirds of the state legislatures (currently 34 states) make similar applications, Congress must convene a national convention for the consideration of amendments. This convention brings together representatives from across the country to discuss and draft potential amendments to the Constitution.

The convention process is designed to be a deliberative and democratic mechanism for proposing amendments. It empowers states to initiate changes to the nation's founding document, bypassing the regular federal legislative process. Once the convention is assembled, the delegates discuss and debate the proposed amendments. The specific rules and procedures governing the convention's operation are determined by the convention itself or by Congress in advance.

After the convention has concluded its deliberations, any proposed amendments must be ratified. The ratification process for amendments proposed by a national convention is the same as for those proposed by Congress. Currently, there are two methods through which amendments can be ratified: by state legislatures or by state ratifying conventions, depending on the method specified by Congress. In either case, three-quarters of the states (currently 38 states) must approve the amendment for it to become part of the Constitution.

It's important to note that the convention method of proposing amendments has never been used successfully. All 27 amendments to the Constitution have been proposed by Congress and ratified by the states. However, the state legislature and convention process remains a valid pathway, and it underscores the important role that states play in the amendment process. It provides a mechanism for the states to drive constitutional change and ensures that the amendment process is not solely controlled by the federal government.

Explore related products

The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union

$18.34 $45

The Liberty Amendments: Restoring the American Republic

$16.71 $26.99

A Companion to the United States Constitution and Its Amendments

$34.65 $45

A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy

$12.65 $27.95

The Second Founding: How the Civil War and Reconstruction Remade the Constitution

$16.69 $17.95

The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit

$21.34 $22.95

Ratification and 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 submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the 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 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. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 out of 50 States).

The OFR then 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 does not make any substantive determinations as to the validity of State ratification actions.

In the case of the Equal Rights Amendment (ERA), there has been controversy over the Archivist's role in the ratification process. Despite meeting the constitutional requirement of ratification by 38 states, the ERA has not been certified as part of the Constitution due to legal, judicial, and procedural decisions regarding ratification deadlines. The Archivist, Dr. Colleen Shogan, has stated that the Archives cannot legally certify and publish the ERA, and that any further action would need to come from Congress or the courts.

The amendment process timeline

The process of amending the United States Constitution is a difficult and time-consuming task. The framers of the Constitution made it challenging to amend the document to ensure its longevity. The Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments, which were adopted four years later as the Bill of Rights.

The authority to amend the Constitution is derived from Article V of the Constitution. An amendment can 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 a constitutional convention.

Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it. The OFR also assembles an information package for the states, including formal copies of the joint resolution.

The proposed amendment is then submitted to the states for their consideration. The governors formally submit the amendment to their state legislatures or call for a convention, depending on Congress's specifications. A proposed amendment becomes part of the Constitution when ratified by three-fourths of the states (38 out of 50 states).

When the OFR receives 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 serves as official notice that the amendment process is complete.

Frequently asked questions