Amendments: How Congress Proposes Changes To The Constitution

The United States Constitution outlines two methods for proposing constitutional amendments in Congress. The first method requires a two-thirds majority vote in both the House of Representatives and the Senate, while the second method involves a constitutional convention called for by two-thirds of the state legislatures. Once an amendment is proposed, it must be ratified by three-quarters of the state legislatures or by ratifying conventions in three-quarters of the states. The process of amending the Constitution is outlined in Article V, which also includes provisions shielding certain clauses from amendment.

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Amendments proposed by Congress

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. Amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Congress proposes an amendment in the form of a joint resolution. The President does not have a constitutional role in the amendment process, so the joint resolution does not go to the White House for signature or approval. Instead, 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 and copies of the joint resolution in slip law format.

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 and serves as official notice to Congress and the Nation that the amendment process has been completed.

In addition to proposing amendments through Congress, Article V provides an alternative method for amending the Constitution by allowing for a convention of the states. This method involves Congress calling for a convention to propose amendments at the request of two-thirds of the state legislatures. However, this convention method has never been used. Some scholars have speculated that states may pressure Congress to propose an amendment on a particular matter by applying for an Article V convention on that issue.

To date, more than 10,000 measures to amend the Constitution have been proposed in Congress. Of these, 33 amendments have been submitted to the states for ratification, and 27 have been ratified and are now part of the Constitution.

Amendments proposed by convention

The United States Constitution provides that an amendment may be proposed either 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. This is outlined in Article V of the Constitution, which establishes an alternative method for amending the Constitution by a convention of the states.

The process of proposing amendments by convention has never been used, but it has been extensively debated by scholars. The concern is that if states have the power to limit an Article V convention to a particular subject matter, and Congress only has the power to call a convention and not control or regulate it, then an Article V convention could become a "runaway convention" that attempts to exceed its scope. If this were to happen, none of the amendments proposed by the convention would become part of the Constitution unless three-fourths of the states ratified them, which is more than the number of states required to call a convention.

Despite these concerns, proponents of a convention express doubt that an Article V convention would exceed its scope, given the United States' experience with state constitutional conventions. Over 600 state constitutional conventions have been held to amend state constitutions, with little evidence of scope creep.

In recent years, there have been calls for a convention of states to propose a constitutional amendment addressing campaign finance reform. The political action committee Wolf-PAC, for example, emerged from New York's Occupy Wall Street movement in 2011 and has advocated for a convention to propose an amendment that would declare that corporations do not have the constitutional rights of human beings and are not allowed to contribute to political campaigns. As of 2022, Wolf-PAC's application has been adopted in three states: California and Vermont in 2014, and Rhode Island in 2016. New Jersey and Illinois previously adopted the application but rescinded it in 2021 and 2022, respectively.

Ratification by state legislatures

The process of amending 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, or by a convention called for by two-thirds of state legislatures.

Once an amendment is proposed, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist officially notifies the states by sending a registered letter to each state's governor, who then formally submits the amendment to their state legislature or ratifying convention.

State legislatures play a crucial role in the ratification process. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. This copy is immediately conveyed to the Director of the Federal Register, who examines the ratification documents for facial legal sufficiency and the presence of 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.

For an amendment to become part of the Constitution, it must be ratified by either the legislatures of three-quarters of the states (38 out of 50 states) or by ratifying conventions in three-quarters of the states. This decision is made by Congress. Each state's vote carries equal weight, regardless of its population or length of time in the Union.

In the past, some state legislatures have taken action on proposed amendments before receiving official notification. Additionally, on three occasions, Congress has adopted a resolution declaring the amendment process successfully completed after being informed that the ratification threshold has been reached. Once the required number of state ratifications is received, the Archivist issues a certificate proclaiming the amendment duly ratified and part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notification to Congress and the nation that the amendment process is complete.

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The role of the Archivist

The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA). The role of the Archivist in the constitutional amendment process is to manage the process and administer the ratification process. This includes submitting amendments that have been proposed by Congress to the states for ratification, collecting state ratifications, and certifying amendments as part of the Constitution once three-fourths of the states ratify them. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register.

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 found to be 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 does not make any substantive determinations as to the validity of state ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.

In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. For example, President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon witnessed the certification of the 26th Amendment. On May 18, 1992, the Archivist performed the duties of the certifying official for the first time to recognize the ratification of the 27th Amendment, and the Director of the Federal Register signed the certification as a witness.

The President's role

The US Constitution does not outline a specific role for the President in the process of amending it. The President does not have a constitutional role in the amendment process, and the joint resolution does not go to the White House for signature or approval. Instead, the original document is sent directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication.

However, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. For example, President George Washington sent the first twelve proposed amendments, including the ten proposals that later became the Bill of Rights, to the states for ratification after Congress approved them. Additionally, in recent history, the certification of an amendment has become a ceremonial function attended by various dignitaries, which may include the President.

Furthermore, in the 1920 case Hawke v. Smith, President Jimmy Carter signed a joint resolution to extend the deadline for ratification of the Equal Rights Amendment, despite being advised that his signature was unnecessary. This suggests that the President cannot veto a proposed amendment, but it does not establish a constitutional role for the President in the amendment process.

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