Simone Lawson
The United States Constitution was designed to be a challenging document to amend, and the process is a difficult and time-consuming one. There are two methods by which the Constitution may be amended: firstly, by a two-thirds majority vote in both the House of Representatives and the Senate, or secondly, by a constitutional convention called for by two-thirds of state legislatures. This second method, also known as an Article V Convention, has never been used, and the process and validity of this method are still debated by scholars.
| Characteristics | Values |
|---|---|
| Number of amendments proposed by a constitutional convention | 0 out of 27 |
| Number of amendments proposed by Congress | 27, 33 including non-ratified |
| Number of state constitutional conventions | More than 230 |
| Number of federal constitutional conventions | 1 |
| Congress' role in the amendment process | Propose amendments with a two-thirds majority vote in both the House of Representatives and the Senate |
| President's role in the amendment process | None |
| Number of states required to call a convention | 34 |
| Number of states required to ratify an amendment | 38 |
| Supreme Court's role in the amendment process | No definitive determination, but has handled several cases and arguments on the scope of amendments |
| Example of an organization calling for a convention of states | Wolf-PAC |
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What You'll Learn
Two-thirds of state legislatures can request a convention
The United States Constitution provides two methods for proposing amendments. One of these methods involves two-thirds of state legislatures requesting a convention. This is also referred to as an Article V Convention, state convention, or amendatory convention.
Article V of the Constitution establishes this alternative method for amending it. Two-thirds of the state legislatures (34 out of 50) can request Congress to call a convention for proposing amendments. These amendments become law only after ratification by three-fourths of the states (38 out of 50). This method has never been used, but 33 amendments have been proposed by the other method, a two-thirds vote in both houses of Congress.
There are ongoing debates surrounding an Article V convention of the states. One debate concerns whether Congress must call a convention upon the request of two-thirds of the states. Some scholars have speculated that states may prod Congress into proposing an amendment on a particular matter by applying for an Article V convention on that issue. For instance, the conservative group Citizens for Self-Governance (CSG) is working towards calling an Article V Convention.
Another debate concerns whether a convention can be unlimited in scope. Practice suggests that separate unlimited applications submitted to Congress at different times are not allowed. However, some argue that different topics can be combined during a convention's deliberations.
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Congress can refuse to submit amendments to states
The United States Constitution outlines two methods for proposing amendments: one through Congress and the other through a convention of states. While the convention method has never been used, it is theoretically possible for two-thirds of state legislatures to apply for a convention to propose amendments. However, Congress has the authority to review applications for conformity with Article V and may use its discretion to determine that limited conventions are not allowed.
Congress has its own independent machinery to propose amendments, and some scholars argue that this gives Congress the power to review and potentially refuse to submit amendments resulting from an Article V convention to the states for ratification. This view suggests that Congress can effectively deprive the state convention method of its independence.
On the other hand, some scholars argue that Congress cannot refuse to submit a proposed amendment to the states. They contend that it is unlikely that the Supreme Court would compel Congress to carry out this duty, as it is not a simple ministerial duty. The Supreme Court has handled several cases and arguments on the scope of amendments but has not provided a definitive determination on the state convention amendment method.
In practice, Congress has customarily included a provision requiring ratification within seven years of submitting an amendment to the states. Additionally, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), administers the ratification process. Once an amendment is ratified by three-fourths of the states, it becomes part of the Constitution.
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Amendments become law after ratification by three-fourths of states
The United States Constitution is a document designed to "endure for ages to come". As such, the process of amending it is intentionally difficult and time-consuming. One of the two methods authorized by Article Five of the United States Constitution for proposing amendments involves a convention of states. This method has never been used, but it has been speculated that it could be used to prod Congress into proposing an amendment on a particular matter.
The process of amending the Constitution through a convention of states begins with two-thirds of state legislatures (34 out of 50) applying to Congress for a convention to propose amendments. Congress then calls this convention, which proposes amendments. However, these amendments only become law after ratification by three-fourths of the states (38 out of 50). This can be done through the legislatures of three-fourths of the states or by ratifying conventions in three-fourths of the states, as determined by Congress.
The process of ratification involves the states sending the Archivist of the United States, who heads the National Archives and Records Administration (NARA), an original or certified copy of their ratification. The Archivist has delegated many of the duties associated with this function 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.
Once the OFR, which is part of NARA, 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 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 has been completed. This entire process has only been utilized once in American history, with the 1933 ratification of the Twenty-First Amendment.
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Congress proposes amendments with a two-thirds majority vote
The United States Constitution has been amended 27 times since it was drafted in 1787. The process of amending the Constitution is detailed in Article V of the Constitution, which outlines two methods for proposing amendments.
The first method, which has been used 33 times, involves Congress proposing amendments with a two-thirds majority vote in both the House of Representatives and the Senate. This process is initiated by Congress whenever two-thirds of both Houses deem it necessary. It is important to note that the President does not have a constitutional role in this amendment process. Once the two-thirds majority vote is achieved, the joint resolution is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.
The second method, which has never been used, is through a convention of states, also known as an Article V Convention. This method requires the application of two-thirds of the state legislatures (34 out of 50) to call for a convention to propose amendments. While this method has never been utilised, there have been instances where states have applied for an Article V convention on specific issues, potentially influencing Congress to propose an amendment.
The proposed amendments, regardless of the method of proposal, must then be ratified. Ratification can occur through one of two processes: by a vote of the legislatures of three-fourths of the states (38 out of 50) or by ratifying conventions in three-fourths of the states. The mode of ratification is determined by Congress.
The process of amending the Constitution is intentionally challenging, as Chief Justice John Marshall noted in the early 1800s that the Constitution was written "to endure for ages to come." The difficulty in amending the Constitution ensures that any changes are carefully considered and have a significant impact on the nation.
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The Archivist of the US administers the ratification process
The United States Constitution grants the authority to amend it. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for overseeing the ratification process as per 1 U.S.C. 106b.
The Archivist, appointed by the President and confirmed by the Senate, has delegated many of the administrative tasks associated with this function to the Director of the Federal Register. The Director 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 Director retains these documents until an amendment is adopted or fails, then transfers the records to the National Archives for preservation.
The Archivist does not make any substantive determinations as to the validity of State ratification actions, but their certification of the facial legal sufficiency of ratification documents is final and conclusive. 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 their role in the constitutional amendment process, the Archivist also has duties concerning the custody of Electoral College documents, such as certificates of ascertainment declaring the names of presidential electors chosen in each state, and the certificates of vote produced by those electors. The Archivist is also responsible for safeguarding and making available for study all permanently valuable records of the federal government, including the original Declaration of Independence, Constitution, and Bill of Rights.
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Frequently asked questions
A convention to propose amendments to the United States Constitution, also referred to as an Article V Convention, is one of two methods authorized by Article Five of the United States Constitution whereby amendments to the United States Constitution may be proposed.
On the application of two-thirds of the State legislatures (34 out of 50), Congress shall call a convention for proposing amendments.
Amendments become law only after ratification by three-fourths of the states (38 out of 50).
No, none of the 27 amendments to the Constitution have been proposed by constitutional convention. All amendments to date have been proposed by a two-thirds vote in both houses of Congress, with 27 of these ratified by three-fourths of the States.
The framers of the Constitution made it difficult to amend the document to ensure its longevity. Chief Justice John Marshall wrote in the early 1800s that the Constitution was "to endure for ages to come".
