Amending The Constitution: Initiation Process Explained

Amendments to a constitution are modifications to the constitution of a polity, organization, or other type of entity. Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation. In the United States, the authority to amend the Constitution is derived from Article V of the Constitution. Amendments can 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. The process is designed to be difficult and time-consuming, and the President does not have a constitutional role in it. Once an amendment is ratified by three-fourths of the states, it becomes part of the Constitution.

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Amendments are proposed by Congress or a convention

The authority to amend the US Constitution comes from Article V of the Constitution. Amendments to the Constitution can be proposed by Congress or by a convention. Congress proposes an amendment in the form of a joint resolution, which requires a two-thirds majority vote in both the House of Representatives and the Senate. This process has been used for all 27 amendments to the Constitution.

The President does not have a constitutional role in the amendment process, so the joint resolution does not require their signature or approval. Instead, the original document is forwarded directly 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 in slip law format, as well as assembling an information package for the states.

A constitutional convention can also be called to propose amendments. This can be done by two-thirds of the State legislatures, who submit the question to the voters at a general election. If a majority of voters approve, a convention is held within six months. However, this method has never been used to propose an amendment.

Once an amendment is proposed, it must be ratified. This can be done by the state legislatures or by conventions, as specified by Congress. A proposed amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50). The OFR examines ratification documents for legal sufficiency and authenticity, and if they are in order, it drafts a formal proclamation for the Archivist to certify that the amendment is valid. This certification is published in the Federal Register and serves as official notice that the amendment process is complete.

Ratification by state legislatures or conventions

The authority to amend the US Constitution is derived from Article V of the Constitution. Amendments to the Constitution can 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.

Once an amendment has been proposed, it is submitted to the state legislatures or conventions, depending on what Congress has specified. State legislatures have sometimes taken action on a proposed amendment before receiving official notice. When a state ratifies a proposed amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register, who 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 until an amendment is adopted or fails.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-quarters of the states (38 out of 50). The Director of the Federal Register 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 process of amending the Constitution is deliberately difficult and time-consuming. The Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments adopted four years later as the Bill of Rights. Amendments must address issues of major impact affecting all Americans or securing the rights of citizens.

The Archivist's role in the process

While the Archivist has delegated many of the ministerial duties to the Director of the Federal Register, they still play a key role in ensuring the smooth functioning of the process. The Archivist, along with the Director, follows 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.

When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action. This copy is then immediately conveyed to the Director of the Federal Register for examination and safekeeping. The Director examines the 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 until the amendment is either adopted or fails.

Once the OFR verifies that it has received the required number of authenticated ratification documents, the Archivist's role becomes even more crucial. The Archivist certifies that the amendment is valid and has become part of the Constitution by signing a formal proclamation. This certification is then 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 signing of this certification has become a ceremonial function attended by various dignitaries, including, at times, the President.

The Archivist's certification of the facial legal sufficiency of ratification documents is considered final and conclusive. This ensures that the amendment process is carried out accurately and transparently, with the Archivist playing a vital role in upholding the integrity of the Constitution and the amendment process.

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The role of the Federal Register

When an amendment to the Constitution is proposed, either by Congress or by a national convention, the original document is forwarded to the Office of the Federal Register (OFR) within the Federal Register. The OFR is responsible for processing and publishing the proposed amendment. This includes adding legislative history notes and publishing the amendment in slip law format, which is a specific format used for federal laws and regulations. The OFR also assembles an information package for the states, which includes formal copies of the joint resolution and the statutory procedure for ratification.

Once the proposed amendment has been processed and published by the OFR, it is then submitted to the states for their consideration. The OFR notifies each state's governor and provides them with the informational material. The governors then formally submit the amendment to their state legislatures or call for a convention, depending on the instructions from Congress.

The OFR also plays a crucial role in the ratification process. When a state ratifies a proposed amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who is responsible for administering the ratification process. The Archivist then forwards these documents to the OFR. The OFR examines the ratification documents to ensure they meet the legal requirements and have authentic signatures. If the documents are in order, the OFR acknowledges receipt and maintains custody of them until the amendment is adopted or fails.

Once the OFR verifies that it has received the required number of authenticated ratification documents from the states, 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 then published in the Federal Register and the U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process has been completed. This final step ensures the transparency and legality of the amendment process, providing a public record of the changes made to the Constitution.

Amendments by popular initiative

In the United States, the ballot initiative process varies from state to state, with 26 states having initiative and/or veto referendum processes at the statewide level. For instance, California citizens can propose laws and constitutional amendments through the ballot initiative process. This involves writing the proposed law (initiative draft), submitting it to the Attorney General for an official title and summary, circulating petitions to collect signatures from registered voters, and then submitting the signatures for verification. If qualified, the ballot initiative is put to a vote, where California voters approve or deny it.

The initiative process can also be indirect, where after collecting sufficient signatures, the proposed amendment is first considered by a state or local legislative body. If the legislative body does not pass the proposed amendment, it must then be placed on the ballot for voters to decide. In some states, additional signatures may be required for this step.

While the process differs across states, the general idea is that citizens can drive the amendment process by collecting a predetermined number of signatures to qualify a measure to be placed on a ballot, which is then voted on in a future election. This method empowers citizens to have a direct say in amending their state's constitution, bypassing the need for legislative referral or executive approval.

On a national level, the United States Constitution has a different amendment process, which does not include a popular initiative process. Amendments to the US Constitution are 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.

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