Amending The Constitution: A Step-By-Step Guide

The United States Constitution was designed to endure for ages to come, and as such, the process of amending it is a difficult and time-consuming task. The authority to amend the Constitution is derived from Article V of the Constitution, which outlines the procedures for doing so. A proposed amendment must be passed by 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. Once an amendment is proposed, it must be ratified by three-fourths of the states to become part of the Constitution. This process ensures that any changes made to the Constitution are carefully considered and have a significant impact on the nation as a whole.

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The process of amending the US Constitution

The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. To ensure its longevity, the framers made it a challenging process to amend the document. 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 of the United States is derived from Article V of the Constitution, which lays out the procedures for doing so. A proposed amendment must be passed by 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 proposal can be made in the form of a joint resolution, which does not require the President's signature or approval. Once the proposal has been made, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process.

For an amendment to become part of the Constitution, it must be ratified by either three-quarters of the state legislatures or by ratifying conventions in three-quarters of the states. This process is known as the "amending process of Article Five", and it has been utilised only once in American history, with the 1933 ratification of the Twenty-First Amendment. The vote of each state carries equal weight, regardless of its population or length of time in the Union.

Once the necessary number of state ratifications has been received, the Archivist issues a certificate proclaiming that the amendment has been duly ratified and is now 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 final step has, in recent years, become a ceremonial function attended by various dignitaries, including the President.

The role of Congress in proposing amendments

The United States Constitution provides that an amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This is known as a joint resolution and does not require the signature or approval of the President. Congress has followed this procedure to propose thirty-three constitutional amendments, which were sent to the states for potential ratification.

At least 11,000 proposals to amend the Constitution have been introduced in Congress, but only 27 amendments have been ratified by three-fourths of the states (38 out of 50). This is because the framers of the Constitution made it a difficult task to amend the document, ensuring its longevity. The two-thirds majority vote in each house is a significant hurdle for any proposed amendment to clear.

Once a proposed amendment passes this hurdle, Congress can choose to send it to the states for ratification or call a convention for proposing amendments. If the latter option is chosen, three-fourths of the states must ratify the amendment for it to become part of the Constitution. This method of proposing amendments has never been used.

After Congress proposes an amendment, 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 and, once a state ratifies it, receives an original or certified copy of the state's action. The OFR, a part of NARA, examines ratification documents and, if they are in order, drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution.

In summary, Congress plays a crucial role in proposing amendments to the Constitution, requiring a two-thirds majority vote in both houses. Congress can then choose to send the proposed amendment to the states for ratification or call a convention for proposing amendments. The Archivist of the United States supports Congress in this process by administering the ratification process and certifying the validity of amendments.

Ratification by state legislatures

The process of amending the Constitution of the United States is derived from Article V of the Constitution. After an amendment is proposed by Congress, the Archivist of the United States, who is at the helm of the National Archives and Records Administration (NARA), is tasked with overseeing the ratification process as outlined in 1 U.S.C. 106b. Notably, neither Article V of the Constitution nor section 106b provides a detailed description of the ratification process.

Once an amendment is proposed, the Archivist of the United States, in conjunction with the Director of the Federal Register, follows established procedures and customs previously carried out by the Secretary of State and the Administrator of General Services. The Director of the Federal Register also plays a crucial role in this process by handling the ministerial duties associated with ratification.

Now, let's delve into the specific process of "Ratification by State Legislatures":

After Congress proposes an amendment, it is forwarded directly to NARA's Office of the Federal Register (OFR) without requiring the President's signature or approval. The OFR enhances the joint resolution by adding legislative history notes and publishing it in slip law format. Additionally, they assemble an information package for the states, which includes formal "red-line" copies of the joint resolution, copies in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The Archivist then submits the proposed amendment to the states for their consideration. This is done by sending a letter of notification to each state's governor, along with the informational material prepared by the OFR. At this stage, the governors formally submit the amendment to their respective state legislatures for ratification.

It is worth noting that some state legislatures have proactively taken action on a proposed amendment before receiving the official notification. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. This is promptly conveyed to the Director of the Federal Register for examination and safekeeping until the amendment is either adopted or fails.

For an amendment to become an integral part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50 states). Once the OFR confirms the receipt of the required number of authenticated ratification documents, a formal proclamation is drafted for the Archivist to certify the amendment's validity. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as an official notification to Congress and the nation that the amendment process has been successfully completed.

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The Archivist's role in the amendment process

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 under the provisions of 1 U.S.C. 106b. The Archivist's role in the amendment process is primarily ministerial, and many associated duties have been delegated to the Director of the Federal Register.

The Archivist 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. The Archivist's responsibilities include submitting proposed amendments to the states for ratification, collecting state ratifications, and certifying amendments as part of the Constitution once three-fourths of the states (38 out of 50) ratify them.

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. The OFR retains these documents until an amendment is adopted or fails, after which they are transferred to the National Archives for preservation.

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, serving as official notice to Congress and the nation that the amendment process is complete. The Archivist's certification of the facial legal sufficiency of ratification documents is considered final and conclusive, although they do not make any substantive determinations regarding the validity of state ratification actions.

In recent history, the signing of the certification has become a ceremonial function attended by dignitaries, including, on occasion, the President. While the President does not have a constitutional role in the amendment process, they may participate in a ceremonial capacity. For example, President Johnson and Nixon witnessed the certification of the 24th, 25th, and 26th Amendments, respectively. The Archivist performed the duties of the certifying official for the first time for the 27th Amendment in 1992.

The difficulty of amending the Constitution

The United States Constitution was designed to be a durable document. Chief Justice John Marshall wrote in the early 1800s that it was written "to endure for ages to come". To ensure its longevity, the framers made it challenging to amend. 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 process of amending the Constitution is intricate and time-consuming. A proposed amendment must be passed by a two-thirds majority in both the House of Representatives and the Senate (or 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 constitutional convention. Once an amendment is proposed, it must be ratified by three-fourths of the states (38 out of 50).

The high bar for amending the Constitution has resulted in thousands of proposed amendments failing to come to fruition. In the last half-century, democratic reformers have proposed numerous amendments to make the Constitution more equal, inclusive, and just, but none have succeeded. This rigidity has caused concern, with some arguing that the Constitution is now virtually impossible to amend and that it needs to be renovated to address outdated aspects regarding elections, federalism, and rights.

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