Amending The Constitution: The Ratification Process

The United States Constitution was written to endure for ages to come, and the process of amending it is a challenging task. The US Constitution has been amended only 27 times since it was drafted in 1787, and there are two methods for amending it. Amendments can be proposed 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 proposed, it must be ratified by three-quarters of the state legislatures or by ratifying conventions in three-quarters of the states. This process ensures that any changes made to the Constitution are carefully considered and have a significant impact on the nation.

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Amendments proposed by Congress

Amending the United States Constitution is a challenging task. Since 1789, Congress has sent 33 constitutional amendments to the states for ratification, of which 27 have been ratified. The process of proposing an amendment by Congress involves a two-thirds majority vote in both the House of Representatives and the Senate. This is a joint resolution that does not require the President's signature or approval.

Congress has proposed various amendments throughout history, some of which have been ratified and become part of the Constitution. For instance, on September 25, 1789, Congress proposed amendments that were later ratified on December 15, 1791, as part of the Bill of Rights. These included the right of the people to be secure in their persons, houses, papers, and effects, as well as the preservation of the right to a trial by jury.

Some other notable amendment proposals by Congress include:

• The Dueling Ban Amendment, proposed in 1838 after a Representative killed another in a duel, which aimed to prohibit anyone involved in a duel from holding federal office.
• An amendment abolishing the Senate, proposed by Representative Victor Berger in 1911 due to his belief that it was corrupt and useless.
• The Ludlow Amendment, proposed by Representative Louis Ludlow in 1937, which would have significantly limited America's ability to engage in war by requiring a national referendum to declare war.
• Amendments supporting congressional term limits and a balanced budget, which were not successful in gaining traction.

While Congress has the power to propose amendments, the decision-making authority on the ratification method rests solely with Congress. An amendment becomes part of the Constitution once ratified by three-fourths of the states (38 out of 50).

Amendments proposed by a convention

The United States Constitution provides that an amendment may be proposed either by Congress or by a constitutional convention called for by two-thirds of the State legislatures (34 out of 50). This method of proposing amendments has never been used. However, it is one of two methods authorized by Article Five of the United States Constitution.

The process of proposing an amendment through a convention begins with the State legislatures. When two-thirds of the State legislatures call for a convention, Congress shall propose amendments, which become law only after ratification by three-fourths of the states (38 out of 50). This is the same number of states required for an amendment to become part of the Constitution when proposed by Congress.

There are ongoing debates about the convention method for proposing amendments. One debate revolves around whether a state convention can be limited to addressing certain topics. Some scholars argue that states may or must determine the scope of an Article V convention by applying for a convention on specific subjects. Another debate concerns whether Congress must call a convention upon the request of two-thirds of the states.

Despite never being used, the convention method has been considered by states on various subjects. For example, as of September 22, 1981, thirty states had requested a convention to propose a balanced budget amendment. However, Congress has never officially tabulated these applications.

State legislatures' role

The role of state legislatures in the constitutional amendment ratification process is significant. Firstly, they can initiate the amendment proposal process by calling for a constitutional convention. Specifically, two-thirds of state legislatures must request this convention for proposing amendments. This process has never been used for any of the amendments to date, with all proposals originating from Congress.

Once an amendment has been proposed by Congress or a convention, state legislatures play a crucial role in ratifying the amendment. There are two methods of ratification, and state legislatures are involved in both. The first method, used for 26 out of 27 amendments, requires ratification by three-quarters of the state legislatures. This means that 38 out of 50 states must approve the amendment for it to become part of the Constitution.

The second method, used only once in history for the 1933 ratification of the 21st Amendment, involves ratifying conventions conducted in three-quarters of the states. This method still involves the state legislatures, as they would be involved in the conventions.

It is worth noting that state legislatures have sometimes taken action on a proposed amendment before receiving official notice from the Governor. Additionally, the vote of each state carries equal weight, regardless of its population or length of time in the Union.

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Ratification by state legislatures

Congress decides which method states must follow for a proposed amendment to come into effect. The first method of ratification requires three-fourths of state legislatures (38 out of 50 states) to ratify an amendment to the Constitution.

The process begins with a proposed amendment from Congress, which is sent to the Archivist of the United States, who administers the ratification process. The Archivist submits the proposed amendment to the states for their consideration by sending a letter of notification to each governor, along with informational material. The governors then formally submit the amendment to their state legislatures.

In some cases, state legislatures have acted on a proposed amendment before receiving official notification. Once a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action, which is conveyed to the Director of the Federal Register for examination and retention until the amendment is adopted or fails.

When the required number of authenticated ratification documents is received, the Director 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 that the amendment process is complete.

Certification by the Archivist

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist's role in the constitutional amendment process is minimal and entirely ceremonial. They do not make any substantive determinations as to the validity of state ratification actions. Instead, they examine ratification documents for facial legal sufficiency and an authenticating signature.

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.

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, including the President. The Archivist's signature does not add the amendment to the Constitution—it is the votes by three-fourths of the states that do so.

The 27th Amendment, ratified in 1992, is the only constitutional amendment to be certified by the Archivist of the United States. On May 18, 1992, Archivist Don W. Wilson became the first and only Archivist to certify a constitutional amendment. The Director of the Federal Register signed the certification as a witness.

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