Amending The Constitution: State Ratification Requirements

The process of amending the US Constitution is outlined in Article V of the Constitution. This process has been used to propose 33 amendments, 27 of which have been ratified and are now part of the Constitution. The first method of ratification requires three-fourths of the state legislatures (38 out of 50 states) to approve an amendment. Alternatively, Congress may require that three-fourths of state ratifying conventions approve a proposed amendment, as was done for the Twenty-First Amendment. The US Constitution is difficult to change, but state constitutions are amended regularly, with around 7,000 amendments across the 50 states.

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The role of the Archivist of the United States

The Archivist of the United States is responsible for overseeing the National Archives and Records Administration (NARA). The Archivist is appointed by the President and is tasked with planning, developing, and administering all programs and functions of NARA. This includes ensuring that Federal Government entities are creating and storing records properly, and that the most important records are brought to NARA for preservation and public access. The Archivist has a team of specialists, technicians, and conservators who assist in the preservation and management of records. These records include paper documents, photographs, maps, films, and computer records. The Archivist also works closely with other government entities, such as the FBI, NASA, and the U.S. Army, to ensure proper record-keeping.

In the context of constitutional amendments, the Archivist receives original or certified copies of state actions related to proposed amendments. Once the required number of authenticated ratification documents is received, the Archivist certifies that the amendment is valid and has become part of the Constitution. This certification is a formal proclamation published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation.

The current Archivist of the United States is Dr. Colleen J. Shogan, who was sworn in on May 17, 2023. As the 11th Archivist and the first woman to hold this position, Dr. Shogan is committed to preserving, protecting, and sharing the history of the United States. She has prioritized expanding the reach of NARA to wider audiences and enhancing services for in-person and online access to the nation's records.

To summarise, the Archivist of the United States plays a vital role in preserving the nation's history and ensuring the accessibility of government records. They also have specific responsibilities in the constitutional amendment process, including administering the ratification process and certifying the validity of amendments.

Ratification by state legislatures

The process of amending the US Constitution is outlined in Article V of the Constitution. It involves proposing an amendment and then ratifying 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 convention called for by two-thirds of state legislatures.

Once an amendment is proposed, it must be ratified. There are two methods of ratification, and Congress decides which method the states must follow:

• Ratification by state legislatures: This method requires three-fourths of the state legislatures (38 out of 50 states) to ratify the proposed amendment. This has been the more common method, used for 26 out of 27 successful amendments.
• Ratification by conventions: This method requires three-fourths of state ratifying conventions to approve the proposed amendment. This method has only been used once, for the Twenty-First Amendment, which repealed the Eighteenth Amendment establishing Prohibition.

The process of ratification by state legislatures involves the following steps:

• Congress proposes an amendment in the form of a joint resolution, which is forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication.
• The OFR adds legislative history notes to the joint resolution, publishes it in slip law format, and assembles an information package for the states.
• Governors formally submit the amendment to their state legislatures. In some cases, a state may call for a convention instead, depending on what Congress has specified.
• State legislatures vote on the proposed amendment.
• When a state ratifies the amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who heads NARA.
• The OFR examines the ratification documents for facial legal sufficiency and an authenticating signature.
• If the documents are in order, the Director of the Federal Register acknowledges receipt and maintains custody of them until an amendment is adopted or fails.
• Once three-fourths of the states (38 out of 50) have ratified the amendment, the OFR drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution.
• The 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.

It is important to note that the ratification process can also involve deadlines set by Congress. The Supreme Court has upheld Congress's authority to specify a deadline for ratification, as seen in the case of Dillon v. Gloss, where a seven-year time limit was set for the Eighteenth Amendment. However, there is ongoing debate about Congress's role in this regard.

Ratification by conventions

The authority to amend the US Constitution is derived from Article V of the Constitution. The Constitution provides two methods for proposing amendments:

• The Congress proposes an amendment with a two-thirds majority vote in both the House of Representatives and the Senate.
• A constitutional convention is called for by two-thirds of the State legislatures.

Once an amendment is proposed, Congress determines which method the states must follow for ratification. There are two methods for ratifying an amendment:

Ratification by State Legislatures

This method involves three-fourths of the state legislatures (i.e., 38 out of 50 states) ratifying the proposed amendment. This is a procedurally simple process, where the state legislature proposes a resolution, memorial, or proclamation of ratification and votes on it in each chamber.

This method involves three-fourths of state ratifying conventions (38 state conventions) approving a proposed amendment. This method has only been specified by Congress once, for the Twenty-First Amendment in 1933, which repealed the Eighteenth Amendment establishing Prohibition.

The convention method of ratification is separate and different from the state legislature method. It allows for a potential bypass of political pressure on state legislators, as delegates to the conventions are presumed to be average citizens. The delegates are specially elected for the convention and may follow a variety of procedures. For example, in Vermont, the governor calls for the election of delegates, with 28 candidates (two from each county, one for ratification and one against) nominated by the governor, lieutenant governor, and speaker of the Vermont State House.

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Citizen-initiated amendments

The authority to amend the US Constitution is derived from Article V of the Constitution. While Congress proposes an amendment with a two-thirds majority vote in both the House of Representatives and the Senate, citizens can also initiate constitutional amendments in their states. This is known as an "initiated constitutional amendment" (ICA) and is a form of direct democracy.

An ICA is a citizen-initiated ballot measure that amends a state's constitution. There are 18 states that allow citizens to initiate constitutional amendments: 16 of these states have direct ICAs, while Massachusetts and Mississippi have indirect ICAs. In states with direct ICAs, citizens can propose and vote on constitutional amendments directly, without needing legislative referral. In states with indirect ICAs, the initiative first goes to the state legislature, which can take various actions on the proposal before it goes to the voters. For example, in Massachusetts, the proposal must gain approval in two successive legislative sessions from one-quarter of state senators and representatives voting together in a joint session.

To initiate the process, proponents of an ICA collect petition signatures from a certain minimum number of registered voters in a state. The signature requirement varies based on the districts targeted for signature collection. Once a sufficient number of signatures have been collected, the proposed amendment is put to the vote. Most states that permit ICAs require approval by a simple majority of voters, although some states impose higher thresholds, such as Florida, which requires 60% voter approval, and Colorado, which requires 55%.

After an ICA is approved by voters, it becomes part of the state's constitution. However, it is important to note that ICAs are subject to judicial review and can be struck down if found to conflict with the US Constitution.

Congressional deadlines for ratification

The authority to amend the US Constitution is derived from Article V of the Constitution. The text of Article V does not explicitly state whether Congress may place a deadline on the states' ratification of a proposed amendment. However, in the case of Dillon v. Gloss in 1921, the Supreme Court ruled that the Constitution implicitly authorises Congress to "fix a definite period" for ratification. The Court upheld Congress's imposition of a seven-year time limit for the Eighteenth Amendment, which established Prohibition.

In the absence of a congressionally proposed deadline, an amendment remains pending before the states until the requisite number of states have ratified it. For example, in 1992, the Twenty-Seventh Amendment became part of the Constitution more than 200 years after it was proposed. The Department of Justice's Office of Legal Counsel (OLC) advised that the amendment became part of the Constitution once the Archivist of the United States certified that the necessary number of states had ratified it.

The OLC has also stated that without a deadline, the Article V process would become unworkable, as states would not know whether they could still ratify an amendment. In 2020, the OLC advised that Congress does not have the authority to extend the ratification deadline for an amendment pending before the states or to revive an amendment after the initial deadline has passed without restarting the Article V process.

Although the Court in Dillon v. Gloss ruled that Congress could set a deadline for ratification, it also opined that, regardless of whether a deadline is specified, the time period for ratification must be "reasonable". In Coleman v. Miller, Chief Justice Charles Evans Hughes suggested that Congress is responsible for determining whether ratification of a proposed amendment occurred within a "reasonable time".

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