Omar Bennett
The process of amending the US Constitution is a difficult and time-consuming endeavour. The framers of the Constitution intended for it to endure for ages, and as such, made it a challenging process to amend the document. The US Constitution has been amended only 27 times since it was drafted in 1787. The amendment process can be initiated 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 state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of state legislatures. The process is managed by the Archivist of the United States and the Director of the Federal Register.
| Characteristics | Values |
|---|---|
| Difficulty | High |
| Time consumption | High |
| Frequency of amendments | Low ("The Constitution has been amended only 27 times since it was drafted in 1787") |
| Proposer of amendments | Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or two-thirds of state legislatures requesting a constitutional convention |
| Amendment format | Joint resolution |
| Role of the President | None |
| Role of the Archivist | Administering the ratification process |
| Duties of the Director of the Federal Register | Procedural and ministerial |
| Ratification process | Not described in detail in Article V of the Constitution or section 106b |
| Number of proposed amendments | Not uncommon |
| Need for amendments | To meet the evolving needs of a changing society |
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What You'll Learn
The role of Congress
Once an amendment is proposed by Congress, it is then sent to the states for ratification. Here, Congress can specify whether the amendment should be ratified by state legislatures or by conventions. This is an important distinction, as the process and requirements for each method differ.
In the case of ratification by state legislatures, the proposed amendment is submitted to each state's governor, who then presents it to their state legislature for consideration. For an amendment to be ratified, it must be approved by the legislatures of three-fourths of the states. This ensures that any changes to the Constitution are widely accepted across the country and not just by a simple majority.
Alternatively, Congress may call for a constitutional convention, which is a gathering of representatives from each state to consider and vote on the proposed amendment. This method has never been used for amending the Constitution, but it remains an option if Congress deems it necessary. To initiate this process, two-thirds of the state legislatures must first request Congress to call for a constitutional convention.
Overall, the role of Congress in the amendment process is to initiate and guide the process, ensuring that any changes to the Constitution are carefully considered and widely accepted by both Congress and the states. The high thresholds required for proposing and ratifying amendments reflect the importance and difficulty of amending the foundational document of the United States.
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The role of the President
The President does not have a constitutional role in the amendment process. The joint resolution proposing an amendment does not require the signature or approval of the President.
The President may, however, be involved in the ceremonial function of signing the certification of an amendment. This has been the case for President Johnson, who signed the certifications for the 24th and 25th Amendments, and President Nixon, who witnessed the certification of the 26th Amendment.
The President's role in the amendment process is limited to this ceremonial capacity, and the executive power does not extend to the substantive aspects of amending the Constitution. This is in contrast to the role of Congress, which proposes amendments with a two-thirds majority vote in both the House of Representatives and the Senate, and the state legislatures, which can call for a constitutional convention to propose amendments.
While the President does not have a direct role in the amendment process, the executive branch's interpretation of the Constitution and implementation of policies may influence the need for amendments over time. The expansion of federal power and the interpretation of old language in the Constitution to fit new issues have contributed to the evolution of constitutional law.
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Ratification by state legislatures
The process of amending the US Constitution is a difficult and time-consuming endeavour. After an amendment is proposed, it must be ratified by the legislatures of three-fourths of US states to come into effect. This process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA).
Once an amendment is proposed, the Archivist submits it to the states for their consideration. This is done by sending a letter of notification to each state governor, along with informational material prepared by the Office of the Federal Register (OFR). The OFR's information package includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification.
Upon receiving the proposed amendment, the governors then formally submit it to their state legislatures. At this stage, the state legislatures deliberate and vote on whether to ratify the amendment. Each state has its own unique legislative process, and the specific procedures for ratification may vary.
In some instances, states have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. 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 considered final and conclusive.
It is important to note that, historically, no amendment to the US Constitution has been proposed through a constitutional convention. All amendments have been proposed by Congress, which then forwards the proposed amendment to the states for ratification.
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The role of the Archivist
Once Congress proposes an amendment, the Archivist takes charge of the process. 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 works closely with the Director of the Federal Register, to whom many ministerial duties have been delegated. Together, they ensure the smooth operation of the amendment process. The original document is sent to NARA's Office of Federal Register (OFR) for processing and publication. The OFR adds legislative history notes and publishes the joint resolution, as well as preparing informational material for the States.
A key duty of the Archivist is to submit the proposed amendment to the States for their consideration. This is done by sending a letter of notification to each Governor, along with the informational material. The Archivist's role is to ensure that the amendment is formally submitted to the State legislatures or a convention is called, as specified by Congress.
While the Archivist does not make substantive determinations on the validity of State ratification actions, their certification of the facial legal sufficiency of ratification documents is final and conclusive. This certification is a critical step in the process, officially notifying Congress and the Nation that the amendment process is complete.
In conclusion, the Archivist plays a central and administrative role in the amendment process, ensuring that proposed amendments are properly submitted, processed, and certified. Their work is essential to maintaining the integrity of the amendment process and facilitating its smooth execution.
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The role of the Director of the Federal Register
The Director of the Federal Register plays a crucial role in the amendment process. The Director's responsibilities include ensuring the smooth functioning of the amendment process and upholding the integrity of the Constitution.
Firstly, the Director of the Federal Register is responsible for receiving and processing proposed amendments. When a State ratifies a proposed amendment, it sends an original or certified copy of the State's action to the Archivist of the United States, who then immediately conveys it to the Director. The Director's office, the Office of the Federal Register (OFR), examines these documents for facial legal sufficiency and the presence of an authenticating signature. Once the documents are deemed to be in order, the Director acknowledges receipt and maintains custody of them.
Secondly, the Director plays a role in facilitating the consideration of proposed amendments by State legislatures. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. Additionally, the OFR assembles an information package for the States, which includes relevant documents and information on the statutory procedure for ratification. This ensures that State legislatures have the necessary information to consider and act upon the proposed amendment.
Furthermore, the Director of the Federal Register is responsible for retaining the documents related to the amendment process until a final decision is made. If an amendment is adopted, the Director's office 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 that the amendment process has been completed.
In addition to their role in the amendment process, the Director of the Federal Register also has broader responsibilities related to federal regulations and records. The Director's office publishes the Federal Register daily, which includes current Presidential proclamations, executive orders, federal agency regulations, proposed agency rules, and other documents required by statute. The Director's office also maintains and updates the Code of Federal Regulations, ensuring that all federal regulations in force are accurately codified. The Director also has a role in approving agency requests to incorporate material into the Code of Federal Regulations.
Overall, the Director of the Federal Register plays a vital role in the amendment process by facilitating the smooth flow of information, maintaining records, and ensuring compliance with legal requirements. Their responsibilities contribute to the integrity and transparency of the constitutional amendment process in the United States.
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Frequently asked questions
The amendment process is the procedure for altering or adding to a legal document, in this case, the US Constitution. 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. Alternatively, two-thirds of state legislatures can request that Congress call a constitutional convention to propose amendments.
Once an amendment is proposed, the Archivist of the United States administers the ratification process. The Archivist submits the proposed amendment to the states for their consideration, and it is then formally submitted to state legislatures. For an amendment to be ratified, it must be approved by the legislatures of three-fourths of the states.
