Amending The Constitution: The Process And Ratification

The United States Constitution was drafted in 1787 and has been amended only 27 times since. The framers of the Constitution made it difficult to amend the document, and the process is both challenging and time-consuming. 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 state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. The process of ratification involves the Archivist of the United States, who administers the ratification process, and the Director of the Federal Register, who follows procedures established by the Secretary of State. The original Constitution was ratified by nine of the 13 states, with New Hampshire becoming the ninth state to approve it in 1788. The Bill of Rights, comprising the first ten amendments, was ratified by the end of 1791.

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The role of Congress in proposing amendments

The authority to amend the US Constitution is derived from Article V of the Constitution. Congress plays a crucial role in proposing amendments, as outlined below.

Two Methods for Proposing Amendments

Article V establishes two methods for proposing amendments to the Constitution. The first method involves both the House and the Senate proposing a constitutional amendment through a two-thirds majority vote of the members present in each house. This method has been used to propose thirty-three constitutional amendments, which were then sent to the states for potential ratification.

The second method, which has never been used, involves Congress calling a convention for proposing amendments upon the request or application of two-thirds of the state legislatures. This method allows states to have a more direct role in initiating the amendment process.

Role of Congress in the Amendment Process

Congress plays a central role in proposing amendments to the Constitution. When two-thirds of both Houses of Congress deem it necessary, they can propose amendments. This process bypasses the need for a convention and allows Congress to take the initiative in addressing issues that require constitutional changes.

Congress has the sole discretion to determine the method that states must follow for proposed amendments to become effective. They can specify whether the amendment should be ratified by three-fourths of the state legislatures or by three-fourths of state ratifying conventions. This flexibility allows Congress to consider the nature of the amendment and the most appropriate ratification process.

Procedural Aspects

Congress proposes amendments in the form of a joint resolution. This resolution does not require the signature or approval of the President, as they do not have a constitutional role in the amendment process. Instead, the original document is forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR plays a crucial role in facilitating the amendment process by providing informational material to the states and examining ratification documents for legal sufficiency.

Ratification by state legislatures

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. The process begins in Congress, with a two-thirds majority vote in both the House of Representatives and the Senate. This phase requires bipartisan support for the proposed amendment. Once an amendment is approved by Congress, it is sent to the states for ratification.

For ratification by state legislatures, three-fourths of the state legislatures (38 out of 50 states) must ratify the proposed amendment. When a state ratifies an amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with the ratification process to the Director of the Federal Register. The Director examines the 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 Office of the Federal Register (OFR) retains the ratification documents until an amendment is adopted or fails. Once an amendment is ratified by three-fourths of the states, it becomes part of the Constitution. The OFR then drafts a formal proclamation for the Archivist to certify that the amendment is valid, which is published in the Federal Register and U.S. Statutes at Large. This serves as official notice that the amendment process is complete.

Ratification by conventions in states

The process of amending the United States Constitution is outlined in Article V of the Constitution. It is a difficult and time-consuming process. The process begins in Congress, with a two-thirds majority vote in both the House of Representatives and the Senate. This ensures bipartisan support for the proposed amendment.

Once an amendment is passed by Congress, it is sent to the states for ratification. There are two methods of ratification that can be chosen by Congress: the first method requires ratification by the legislatures of three-fourths of the states (38 out of 50 states), while the second method, which has only been specified once in history for the Twenty-First Amendment, involves ratification by conventions in three-fourths of the states.

Ratification by conventions in three-fourths of the states is the second method of ratification specified in Article V. This method has only been used once in history, for the Twenty-First Amendment, which repealed the Eighteenth Amendment establishing Prohibition.

When an amendment is ratified by conventions in states, it follows a similar process to ratification by state legislatures. The governors submit the amendment to the state conventions, and once the amendment is ratified by three-fourths of the states, it becomes part of the Constitution. The state sends an original or certified copy of the ratification to the Archivist of the United States, who then transfers it to the Director of the Federal Register for examination and safekeeping.

The ratification process for the Twenty-First Amendment is a notable example of successful ratification by conventions in states. It demonstrates the flexibility and responsiveness of the Constitution to the changing needs of the nation, such as the repeal of Prohibition.

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The Archivist's role in the process

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. The Archivist and the Director follow 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.

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, after which the records are transferred to the National Archives for preservation.

The Archivist does not make any substantive determinations as to the validity of state ratification actions. However, it has been established that 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 plays a crucial role in the amendment process by ensuring the integrity and accuracy of the ratification documents and providing official certification of the amendment's validity. This 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 has been completed.

The certification of ratification

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 heads the National Archives and Records Administration (NARA). The Archivist is responsible for administering the ratification process and has delegated many of the associated duties to the Director of the Federal Register.

The Director examines the ratification documents for facial legal sufficiency and authenticating signatures. Once 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 includes a list of the states that have adopted the amendment.

In the past, various Executive Branch officials have performed the duty of certifying the ratification of constitutional amendments. The responsibility has shifted over time, with the Secretary of State performing this role initially, followed by the Administrator of General Services, and now the Archivist of the United States.

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