Eleanor Finch
Amending the US Constitution is a challenging and lengthy process. The framers of the Constitution intended for it to be difficult to change, and as such, it has only been amended 27 times since it was first drafted in 1787. There are two ways to propose an amendment: through a vote of approval by both bodies of Congress or via a state convention. A proposed amendment must achieve a two-thirds majority in both the House and the Senate or from a state convention to be approved. Once approved, it must be ratified by three-fourths of the state legislatures or conventions in each state. The Archivist of the United States is responsible for certifying the amendment, which is then published in the Federal Register. This certification is a formal record of the amendment but does not carry any legal weight.
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What You'll Learn
Two ways to propose an amendment: legislative and convention methods
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 the process of amending the document challenging. 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. There are two ways to propose an amendment: the legislative method and the convention method.
Legislative Method
The legislative method involves Congress proposing an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. This process is outlined in Article V of the Constitution and is known as the "two-thirds vote" method. The President does not have a constitutional role in this process, and the joint resolution does not require their signature or approval. Instead, the original document is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.
Convention Method
The convention method, also known as the Article V Convention or state convention method, is the second way to propose an amendment. This method has never been used, but it involves two-thirds of the state legislatures (34 out of 50) applying to Congress to call for a convention to propose amendments. These amendments would then need to be ratified by three-fourths of the states (38 out of 50) to become law.
While the convention method has never been utilised, some scholars speculate that states may encourage Congress to propose an amendment on a specific issue by applying for an Article V convention. However, there are debates and uncertainties surrounding the convention method, including the selection of delegates, the rules of procedure, and the voting thresholds required.
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The legislative method: a supermajority of two-thirds
The legislative process of amending the United States Constitution is a complex and lengthy procedure, as the framers of the Constitution intended. Since its drafting in 1787, there have only been 27 amendments, illustrating the challenge of instituting constitutional change. The Constitution outlines two methods for proposing amendments, with the legislative method requiring a supermajority of two-thirds.
The legislative method, as outlined in Article V of the Constitution, empowers Congress to propose amendments with a two-thirds majority vote in both the House of Representatives and the Senate. This process underscores the importance of consensus and ensures that any changes to the Constitution reflect the interests of a significant portion of the country. It is worth noting that, while the President plays a ceremonial role in the amendment process, they do not have a constitutional role in this method.
To initiate the legislative method, a supermajority of two-thirds is required in both chambers of Congress. This means that two-thirds of the members present in the House of Representatives and the Senate must vote in favour of the proposed amendment. The amendment then takes the form of a joint resolution, which is forwarded to the National Archives and Records Administration (NARA) for processing and publication.
The NARA's Office of the Federal Register (OFR) plays a crucial role in this process. It adds legislative history notes to the joint resolution and publishes it in slip law format. Additionally, the OFR prepares an information package for the states, which includes formal "red-line" copies of the joint resolution, as well as copies in slip law format, and other relevant statutory information. This ensures that the states have all the necessary details to consider the proposed amendment.
Once the proposed amendment is submitted to the states, the process continues with ratification. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50 states). This can be achieved through the state legislatures or by conventions, with Congress determining the specific mode of ratification. The legislative method, with its supermajority requirement, ensures that any changes to the Constitution are carefully considered and broadly supported by the representatives of the people.
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The convention method: voters elect delegates to a convention
The United States Constitution has a provision that allows for amendments to be proposed through a constitutional convention called for by two-thirds of the state legislatures. This process, known as the convention method, involves voters electing delegates to represent their state at the convention.
The convention method has never been used to propose an amendment to the Constitution, despite having its supporters. The process begins with two-thirds of state legislatures requesting that Congress call a Constitutional Convention. Delegates, or representatives, from each state are then elected to attend the convention and debate proposed amendments.
The delegates at a Constitutional Convention are tasked with discussing and deciding on the content of a proposed amendment. This can be a lengthy process, with delegates debating for months to ensure a thorough examination of the issue. The delegates may also address other matters of national importance, such as the creation of new branches of government or the establishment of nationality requirements for elected officials.
During the original Constitutional Convention in 1787, delegates debated the structure of the government, including the representation of states in Congress and the powers of the different branches. The delegates ultimately agreed to a bicameral legislative branch, with equal representation for each state in the Senate and representation based on population in the House of Representatives. This compromise, known as the Connecticut Compromise, aimed to balance the interests of large and small states.
The convention method for proposing constitutional amendments provides a mechanism for states to initiate changes to the nation's governing document. While it has not yet been utilised, it remains a significant part of the amendment process, empowering voters and their elected delegates to shape the Constitution.
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Ratification: three-quarters of states must approve
The United States Constitution has been amended only 27 times since it was drafted in 1787, and for good reason. The process of amending the Constitution is deliberately difficult and time-consuming. After an amendment proposal has passed a vote of approval by both bodies of Congress or by a state convention, it must pass an even higher hurdle: ratification by three-quarters of the states. This means that 38 of the 50 states must approve the amendment for it to become part of the Constitution.
The ratification 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 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 in order, the Director acknowledges receipt and maintains custody of them.
The OFR retains these documents until an amendment is adopted or fails, at which point the records are transferred to the National Archives for preservation. The OFR also 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 certification document typically includes a list of the states that ratified the amendment, though it does not have any legal effect on the amendment itself.
In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President. While the process of amending the Constitution is challenging, it ensures that any changes made to this enduring document are carefully considered and widely supported by the states.
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Certification: an official certifies the amendment
The process of amending the Constitution of the United States is a complex and lengthy one. After an amendment proposal successfully passes a two-thirds majority vote in both the House of Representatives and the Senate, it must be ratified by three-fourths of the state legislatures or state conventions. Once an amendment has been ratified by the required number of states, the next step is certification.
Certification is the process by which an official of the federal government, specifically the Archivist of the United States, certifies that the amendment is valid and has become an official part of the Constitution. This certification is not a substantive determination of the validity of the amendment but rather a facial legal sufficiency check. The Archivist's role is to ensure that the amendment has been properly ratified and that all necessary documentation is in order.
The certification process begins when the Archivist of the United States, who heads the National Archives and Records Administration (NARA), receives an original or certified copy of the state action from each state that has ratified the amendment. The Archivist then delegates the ministerial duties to the Director of the Federal Register (OFR), who examines the ratification documents to ensure they meet the necessary legal standards and have authenticating signatures.
If the Director of the OFR finds the documents to be in good order, they acknowledge receipt and maintain custody of them. The OFR then drafts a formal proclamation for the Archivist to certify that the amendment is valid. This certification document typically includes a list of the states that ratified the amendment. It serves as an official notice to Congress and the nation that the amendment process has been successfully completed.
The signing of the certification has become a ceremonial function, sometimes attended by dignitaries, including the President. The certification is then published in the Federal Register and U.S. Statutes at Large, finalising the amendment process and officially incorporating the amendment into the Constitution.
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Frequently asked questions
The 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. Once an amendment is approved, it must be ratified by three-fourths of the States (38 out of 50).
The President does not have a constitutional role in the amendment process, and any proposed amendment does not require the President's signature or approval.
The United States 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.
