Eleanor Finch
Amending a constitution is a challenging and time-consuming process. The United States Constitution, for example, has only been amended 27 times since 1787. To amend the US Constitution, a proposed amendment must be passed by two-thirds of both houses of Congress and then ratified by three-fourths of state legislatures or conventions. Alternatively, two-thirds of state legislatures can request Congress to call a Constitutional Convention to propose amendments, although this has never happened. Once an amendment is ratified by enough states, it becomes part of the Constitution. This process ensures that any changes to the Constitution are carefully considered and have a significant impact on the country and its citizens.
| Characteristics | Values |
|---|---|
| Difficulty | High |
| Time consumption | High |
| Number of amendments to the US Constitution | 27 |
| Number of proposed measures to amend the Constitution | 10,000+ |
| Minimum ratification time | 7 years |
| Number of amendments proposed by constitutional convention | 0 |
| Number of amendments ratified by convention | 1 (Twenty-First Amendment) |
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What You'll Learn
Amendments proposed by Congress
The process of amending the United States Constitution is a difficult and time-consuming endeavour. Since 1789, Congress has sent 33 constitutional amendments to the states for ratification, with 27 of them being successfully ratified. The process begins with a proposal, which can be initiated by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This proposal takes the form of a joint resolution, which is then 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 the amendment process. It adds legislative history notes to the joint resolution and publishes it in slip law format, as well as assembling an information package for the states. This package includes formal "red-line" copies and slip law format copies of the joint resolution. Once the OFR has completed its initial tasks, the focus shifts to the states.
The proposed amendment must then be ratified by the legislatures of three-fourths of the states (currently 38 out of 50 states). When a state ratifies the proposed amendment, it sends an original or certified copy of the state action to the Archivist, who maintains custody of these documents until the amendment is adopted or fails. The OFR examines these ratification documents for facial legal sufficiency and the presence of an authenticating signature.
Upon receiving the required number of authenticated ratification documents, 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 to Congress and the nation that the amendment process is complete.
Throughout history, there have been numerous amendments proposed by Congress, some of which were successfully ratified while others were not. Here are some notable examples:
- The 1789 Joint Resolution of Congress, which included the first 10 amendments known as the Bill of Rights, was proposed by Congress and ratified in 1791. These amendments included the right to be secure against unreasonable searches and seizures, the preservation of trial by jury, and the prohibition of cruel and unusual punishments.
- In 1911, Representative Victor Berger proposed an amendment to abolish the Senate due to his beliefs that it was corrupt and useless. This amendment was not approved by Congress.
- The 21st Amendment, which was the only instance where state ratifying conventions in three-fourths of the states were used for ratification, invoked this procedure.
- The Dueling Ban Amendment, proposed in 1838 after a Representative killed another in a duel, aimed to prohibit any person involved in a duel from holding federal office.
- The Christian Amendment, first proposed in 1863, sought to add an acknowledgment of the Christian God in the Preamble to the Constitution but was never passed.
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Ratification by state legislatures
The first step in ratification by state legislatures is for the proposed amendment to be submitted to the state legislatures by the governors. Once received, the state legislatures can take action by proposing a resolution, memorial, or proclamation of ratification. This proposal is then voted on in each chamber of the state legislature, with a simple up-or-down vote determining its fate. This process is procedurally straightforward, allowing state legislatures to efficiently address proposed amendments.
However, it is important to note that the mode of ratification can vary. While ratification by state legislatures is the most common method, an alternative route exists in the form of state ratifying conventions. This convention method, outlined in Article V, provides a different pathway for considering the pros and cons of a proposed amendment. It allows for a potential bypass of the state legislatures, giving more direct consideration to the sentiments of registered voters on sensitive issues.
The choice between ratification by state legislatures and state ratifying conventions is determined by Congress. In the case of the 21st Amendment, the convention method was utilised, making it the only amendment ratified by a convention. The process involved convening an ad-hoc convention specifically for the amendment, with delegates being elected or formed by the members of the state legislature themselves.
State legislatures play a pivotal role in the amendment process, as their approval is essential for an amendment to become part of the Constitution. The United States Constitution was designed to endure, and amending it is intentionally challenging. By requiring ratification by three-fourths of the state legislatures (currently 38 out of 50 states), the framers ensured that any changes to the Constitution reflect the consensus of a significant majority of the country.
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Calling a constitutional convention
The United States Constitution was written "to endure for ages to come". To ensure its longevity, the framers made it a challenging task to amend the document. The Constitution provides that an amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, it can be proposed by a constitutional convention called for by two-thirds of the state legislatures (34 out of 50). This is referred to as an Article V Convention, a state convention, or an amendatory convention.
A constitutional convention has never been used to propose amendments to the United States Constitution, but over 600 state constitutional conventions have been held to amend state constitutions. The process of calling for a constitutional convention begins with the state legislatures. Two-thirds of the state legislatures must apply to Congress for a convention to propose amendments to the Constitution. This application process is separate from any specific amendment proposal and must be requested by the legislatures themselves, as Article V calls for "the application of the legislatures" rather than plural "applications".
Once Congress receives applications from two-thirds of the state legislatures, it must call for a convention. However, Congress has no further power to control or regulate the convention. This has raised concerns about the potential for a "runaway convention" that could exceed its scope. To address this, any amendments proposed by the convention would still need to be ratified by three-fourths of the states (38 out of 50), which is more than the number of states required to call for the convention.
The process of calling for a constitutional convention and proposing amendments is separate from the ratification process. Once an amendment is proposed, either by Congress or a constitutional convention, it must be ratified 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 duties to the Director of the Federal Register, who examines ratification documents for facial legal sufficiency and an authenticating signature. Once an amendment is ratified by three-fourths of the states, the Archivist certifies its validity, and it becomes part of the Constitution.
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The President's role
The US Constitution does not outline a specific role for the President in the amendment process. The President does not have a constitutional role in the amendment process, and the joint resolution does not go to the White House for signature or approval. However, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. For instance, President George Washington sent the first twelve proposed amendments, including the ten proposals that later became the Bill of Rights, to the states for ratification after Congress approved them.
In the 1920 case Hawke v. Smith, the Supreme Court ruled that the submission of a constitutional amendment did not require the action of the President. Despite this, President Jimmy Carter signed a joint resolution extending the deadline for ratification of the Equal Rights Amendment, even though his signature was deemed unnecessary.
In recent history, the certification of amendments has become a ceremonial function attended by various dignitaries, including the President. President Johnson signed the certifications for the 24th and 25th Amendments, and President Nixon witnessed the certification of the 26th Amendment.
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History of amendments
The history of amendments to the US Constitution is a long and complex one, with 27 amendments having been ratified since the Constitution was put into operation on 4 March 1789. The first ten amendments, known as the Bill of Rights, were ratified on 15 December 1791.
The First Amendment is arguably the most famous and important, protecting the freedoms of religion, speech, press, assembly, and petition. The Second Amendment protects the right to keep and bear arms, stating that "a well-regulated Militia [is] necessary to the security of a free State". The Third Amendment, though less relevant today, prohibits the quartering of militia in private homes without the owner's consent. The Fourth Amendment guarantees the right to security against unreasonable searches and seizures, addressing colonial Americans' experiences prior to the Revolutionary War.
The Thirteenth, Fourteenth, and Fifteenth Amendments are collectively known as the Reconstruction Amendments. The Eighteenth Amendment, ratified in 1919, established the prohibition of alcohol, but it was later repealed by the Twenty-first Amendment in 1933. This was the only amendment to be ratified through state ratifying conventions in three-fourths of the states.
Since the early 20th century, Congress has occasionally stipulated a time limit for ratification, requiring an amendment to be ratified by the required number of states within seven years of its submission.
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Frequently asked questions
The process to amend a constitution is a difficult and time-consuming task. A proposed amendment must be passed by two-thirds of both houses of Congress and then ratified by three-fourths of the state legislatures.
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.
After an amendment is proposed, it is submitted to the state legislatures or a convention, depending on what Congress has specified. Once 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.
