Amending The Constitution: The Proposal Process

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. Amending the Constitution is a difficult and time-consuming process. The Constitution has been amended only 27 times since it was drafted in 1787. There are two methods for proposing amendments: the first requires a two-thirds majority vote in both the House of Representatives and the Senate, and the second involves a constitutional convention called for by two-thirds of the state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution.

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Two-thirds majority in Congress

The United States Constitution has been amended only 27 times since it was drafted in 1787, and the process of amending it is deliberately difficult. The authority to amend the Constitution of the United States 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. This is a vote of two-thirds of the members present, assuming a quorum, and not a vote of two-thirds of the entire membership, present and absent. Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's 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. The OFR also assembles an information package for the States, which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory process.

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.

It is worth noting that none of the 27 amendments to the Constitution have been proposed by constitutional convention.

Two-thirds of state legislatures call for a convention

The United States Constitution, in Article V, outlines two methods for proposing amendments: one led by Congress and the other by state legislatures. While amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, this article will focus on the process initiated by state legislatures.

The process begins when two-thirds of state legislatures call for a convention to propose constitutional amendments. This step involves state legislators discussing and drafting potential amendments, which can be initiated without waiting for official notice from Congress. This method reflects the recognition that state legislatures play a crucial role in shaping the Constitution and ensures that the amendment process is not solely controlled by Congress.

Once a proposed amendment emerges from the convention, it is submitted to the state governors. The governors then forward the amendment to their respective state legislatures for ratification. This process underscores the importance of state-level deliberations and ensures that any changes to the Constitution reflect the diverse perspectives and interests of different states.

For an amendment to be adopted and become part of the Constitution, it must be ratified by three-fourths of the states, or 38 out of 50 states. This requirement highlights the need for broad consensus across the country. When a state ratifies an amendment, it sends an original or certified copy of the state action to the Archivist, who maintains custody of these documents. The Archivist, who heads the National Archives and Records Administration (NARA), oversees the ratification process.

The process concludes with the Archivist's certification of the amendment's validity. This certification is a formal proclamation 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, in recent times, become a ceremonial event attended by dignitaries, including the President.

Ratification by three-fourths of state legislatures

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. The process begins with a proposal for an amendment, which can be made by either Congress or a constitutional convention. If the proposal comes from Congress, it must be passed by a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, a constitutional convention can be called for by two-thirds of the State legislatures. However, it is important to note that none of the amendments to the Constitution have been proposed through a convention so far.

Once an amendment is proposed, it moves on to the ratification stage. This process is administered by 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 process to the Director of the Federal Register.

There are two methods for ratifying an amendment, as outlined in Article V: ratification by the legislatures of three-fourths of the states or ratification by conventions in three-fourths of the states. The mode of ratification is proposed by Congress.

When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action. The Director of the Federal Register 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.

For an amendment to become part of the Constitution, it must be ratified by at least three-fourths of the states, which currently equates to 38 out of 50 states. Once the required number of authenticated ratification documents is received by the Office of the Federal Register (OFR), a formal proclamation is drafted for the Archivist to certify that the amendment is valid. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice that the amendment process is complete.

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The role of the Archivist

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. The Archivist's role in amending the Constitution is primarily ministerial, and they follow established procedures and customs.

When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action. The Archivist then conveys this information to the Director of the Federal Register, who 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 an amendment is adopted or fails. At that point, the Director transfers the records to the National Archives for preservation.

The Archivist does not make substantive determinations regarding the validity of state ratification actions. However, their certification of the facial legal sufficiency of ratification documents is final and conclusive. This certification is a formal proclamation drafted by the OFR, declaring that the amendment is valid and has become part of the Constitution. The 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 the case of the 27th Amendment, the Archivist, Don W. Wilson, became the first and only Archivist to certify a constitutional amendment. The 27th Amendment was first proposed in 1789 but was not ratified until 1992 due to a delay in the required number of states passing it. The Archivist's certification of this amendment was somewhat controversial given the extended time between its proposal and ratification.

The role of the Director of the Federal Register

The Director of the Federal Register plays a crucial role in the process of proposing constitutional amendments in the United States. This process is derived from Article V of the Constitution.

Once Congress proposes an amendment, the Archivist of the United States, who is in charge of the National Archives and Records Administration (NARA), is responsible for overseeing the ratification process. The Archivist, however, delegates many of the associated duties to the Director of the Federal Register.

When a state ratifies a proposed amendment, it sends an original or certified copy of the action to the Archivist, who then conveys it to the Director of the Federal Register. The Director examines these documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody.

The Director retains these documents until an amendment is either adopted or fails. At that point, the records are transferred to the National Archives for preservation. Once an amendment is ratified by three-fourths of the states (38 out of 50), it becomes part of the Constitution. The Director's office, the OFR, then drafts a formal proclamation for the Archivist to certify the amendment's validity. This certification is published in the Federal Register, marking the completion of the amendment process.

In summary, the Director of the Federal Register acts as a key facilitator and administrator in the constitutional amendment process, handling important documents, maintaining records, and helping to ensure the integrity and legality of the process.

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