Isabella Carter
The process of amending the US Constitution is a complex and challenging task, as the framers intended when it was first drafted in 1787. There are two primary methods to initiate the amendment process, both of which require significant political consensus. Firstly, two-thirds of both houses of Congress must pass a proposed amendment, which is then ratified by three-fourths of the state legislatures. Alternatively, two-thirds of state legislatures can request that Congress call a Constitutional Convention to propose amendments, which are then ratified by three-fourths of the states. While there have been calls for a Constitutional Convention, it has never occurred in US history. Amendments can also be proposed by state legislatures, citizens, or commissions, and the specific processes vary across different states. The authority to amend the Constitution is derived from Article V, which outlines the procedures and sets certain limitations on what can be amended.
| Characteristics | Values |
|---|---|
| Authority to amend the Constitution | Article V of the Constitution |
| Amendment proposal | Congress with a two-thirds majority vote in both the House of Representatives and the Senate |
| Amendment proposal | Constitutional convention called for by two-thirds of State legislatures |
| Amendment ratification | Three-fourths of the States (38 of 50 States) |
| Amendment ratification method | Determined by Congress |
| Ratification method | Three-fourths of state legislatures ratify an amendment |
| Ratification method | Three-fourths of state ratifying conventions approve a proposed amendment |
| Unamendable subjects | No Amendment can affect certain clauses in the Ninth Section of the First Article |
| Unamendable subjects | No State, without its consent, shall be deprived of its equal suffrage in the Senate |
| Amendment frequency | Varies across States, ranging from once every three to four years to more than three to four times per year |
| Amendment approval | Majority of voters in the entire election in some States |
| Amendment path | Citizen-initiative processes in 17 States |
| Signature-collection requirements | Range from 3% to 15% of votes cast in the last gubernatorial election |
| Amendment by convention | Held 250 times from 1776 to 1986 across 50 States |
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What You'll Learn
The authority to amend the Constitution
A proposed amendment must be passed by two-thirds of both houses of Congress, and then ratified by three-fourths of the state legislatures. This can be done either through the state legislatures themselves or through state ratifying conventions, depending on what method Congress has specified. Congress has only specified the second mode of amendment once, for the Twenty-First Amendment, which repealed the Eighteenth Amendment establishing Prohibition.
Alternatively, two-thirds of the state legislatures can ask Congress to call a Constitutional Convention to propose amendments. However, this has never happened. Amendments proposed by a Constitutional Convention would then need to be ratified by three-fourths of the states, either through their legislatures or conventions.
Once an amendment is ratified, the OFR 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.
At the state level, the processes for amending constitutions vary. Some states require amendments to be approved by a majority of voters in the entire election, while others provide for citizen-initiative processes or allow amendments to be crafted by legislatures, citizens, conventions, or commissions.
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The amendment proposal process
The authority to amend the US Constitution is derived from Article V of the Constitution. The process of amending the Constitution is intentionally challenging and time-consuming. The US Constitution has been amended 27 times since it was drafted in 1787, which includes the first 10 amendments adopted in 1791 as the Bill of Rights.
A proposed amendment must be passed by a two-thirds majority vote in both the House of Representatives and the Senate. The President does not have a constitutional role in the amendment process. Once the proposal is passed, it is forwarded to the Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States, which includes formal "red-line" copies of the joint resolution and copies of the joint resolution in slip law format.
The proposal is then formally submitted to the State legislatures or a constitutional convention, depending on what Congress has specified. State legislatures generate more than 80% of constitutional amendments considered and approved each year. States vary in their requirements for legislatures to craft amendments. Some states require amendments to be approved by a majority of voters in the entire election, while others allow amendments to be approved by either three-fifths of voters on the amendment or a majority of voters in the election. Seventeen states also allow citizen-initiative processes for amendments, although this accounts for fewer than 2 out of every 10 amendments adopted each year.
A proposed amendment becomes part of the Constitution when it is ratified by three-fourths of the States (38 out of 50). Once the OFR verifies receipt of 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 serves as official notice to the Congress and the Nation that the amendment process is complete.
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Ratification by state legislatures
The process of amending the Constitution of the United States is outlined in Article V of the Constitution. After an amendment is proposed by Congress, it is submitted to the states for their consideration. The process of ratification by state legislatures involves the following steps:
Submission to State Legislatures
The proposed amendment is formally submitted to the state legislatures by the governors of each state. In some cases, a state may call for a convention, depending on the specifications provided by Congress. It is important to note that the President does not have a constitutional role in the amendment process, and the joint resolution is not sent to the White House for signature or approval.
Once the state legislatures receive the proposed amendment, they can choose to take action. When a state ratifies the amendment, it sends an original or certified copy of the state's action to the Archivist of the United States, who heads the National Archives and Records Administration (NARA). This copy is then conveyed to the Director of the Federal Register for examination and custody.
Examination and Authentication
The Office of the Federal Register (OFR) examines the ratification documents for facial legal sufficiency and the presence of an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until the amendment is either adopted or fails.
Certification and Adoption
Once the OFR verifies that it has received the required number of authenticated ratification documents (ratification by three-fourths of the state legislatures, or 38 out of 50 states), it drafts a formal proclamation for the Archivist to certify that the amendment is valid. This certification is published in the Federal Register, serving as official notice that the amendment process is complete. The amendment then becomes part of the Constitution.
It is worth noting that, historically, some state legislatures have not waited for official notice before taking action on a proposed amendment. Additionally, in rare cases, states have sent documents to NARA to record the rejection of an amendment or the rescission of a prior ratification.
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Ratification by conventions
The process of amending the Constitution of the United States is outlined in Article V of the Constitution. It is a complex and lengthy procedure, as the framers intended for the Constitution to be a durable document. Since its drafting in 1787, there have been only 27 amendments, illustrating the difficulty of amending it.
One method of proposing amendments is through a constitutional convention called for by two-thirds of the state legislatures. Notably, none of the 27 amendments have been proposed through this method. The second method, which has been used for all amendments, involves a two-thirds majority vote in both the House of Representatives and the Senate. The President does not play a constitutional role in this process.
Once an amendment is proposed, Congress determines the method for ratification. The first method involves ratification by three-fourths of the state legislatures. This is the most common approach, with over 80% of amendments being approved through this route. The second method, specified by Congress only once for the Twenty-First Amendment, involves ratification by three-fourths of state ratifying conventions. This method allows for direct citizen participation in the amendment process.
The process of convening a ratification convention typically begins with a call from two-thirds of the state legislatures or a resolution from Congress. Each state then holds a convention, which may involve drafting and debating the amendment. The conventions are attended by delegates, who are often elected officials or representatives chosen specifically for this purpose. The specific procedures and requirements for these conventions can vary from state to state.
The outcome of the ratification conventions is then submitted to the Archivist of the United States, who administers the ratification process. The Archivist, along with the Director of the Federal Register, follows established procedures and customs, including examining the legal sufficiency and authenticity of the documents. Once the required number of authenticated ratification documents is received, a formal proclamation is drafted, certifying that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and serves as official notice of the completion of the amendment process.
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Unamendable subjects
The authority to amend the US Constitution is derived from Article V of the Constitution. The process of amending the Constitution begins with Congress, which can propose amendments with a two-thirds majority vote in both the House of Representatives and the Senate. Amendments can also be proposed 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 the states to become part of the Constitution.
While the Constitution provides mechanisms for amending itself, there are certain subjects that are considered "unamendable". These unamendable subjects are outlined in the last two sentences of Article V. The first sentence prohibits amendments made prior to 1808 that would have affected two specific subjects addressed in Article I, Section 9 of the Constitution:
- Limitations on Congress's power to prohibit or restrict the importation of slaves before 1808.
- Limitations on Congress's power to enact an unapportioned direct tax.
The second sentence of Article V states that no state, without its consent, shall be deprived of its equal suffrage in the Senate. This provision has been a subject of scholarly interest and debate, with some commentators arguing that it should be given full legal force.
Additionally, there is debate surrounding the amendability of Article V itself. While it is generally accepted that constitutional amending provisions can be used to amend themselves, some scholars argue that Article V cannot be amended to create new limitations on the amending power. These debates raise critical questions about how the nation may alter its fundamental law.
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Frequently asked questions
The first step is for two-thirds of both houses of Congress to pass a proposed amendment.
The proposed amendment is then submitted to the state legislatures or a convention, depending on what Congress has specified.
An amendment must be ratified by three-fourths of the states (38 out of 50).
Yes, in addition to the federal amendment process, individual states have their own processes for amending their constitutions. These can include amendments proposed by legislatures, citizens, conventions, or commissions.
