Amending The Constitution: A Congress-Free Alternative

The process of amending the US Constitution is a difficult and time-consuming task. It has been amended only 27 times since 1787, with 10 of those amendments being adopted simultaneously as the Bill of Rights. The authority to amend the Constitution is derived from Article V, which outlines two methods for doing so. The first method involves a two-thirds majority vote in both the House of Representatives and the Senate, while the second method involves a constitutional convention called for by two-thirds of the state legislatures. However, it is worth noting that none of the amendments have been proposed by a constitutional convention so far. Once an amendment is proposed, it must be ratified by three-fourths of the states to become part of the Constitution. This process can be initiated by the governors submitting the amendment to their state legislatures or calling for a convention, depending on Congress's specifications.

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Two-thirds of state legislatures can request a constitutional convention

The United States Constitution, under Article V, outlines two methods to propose amendments. One of these methods involves two-thirds of state legislatures requesting a constitutional convention. This process bypasses Congress and allows states to initiate the amendment process directly.

Each state has its own process for calling a constitutional convention. Some states, like Alabama, only require a simple majority in each legislative chamber to initiate the process. In contrast, other states, such as California, mandate a two-thirds vote in each chamber. Regardless of the specific requirements, the common goal is to seek a convention for proposing amendments.

Once two-thirds of the state legislatures (currently 34 out of 50 states) apply, Congress is obligated to call for a convention to propose amendments. This convention method has never been used to amend the Constitution, but it serves as an alternative pathway to initiate the amendment process without solely relying on Congress.

The role of Congress in this convention process is primarily administrative. They act as a convening agent for the state legislatures, and their involvement does not grant them the authority to alter traditional rules or dictate the convention's composition. The convention's amendments become law only after ratification by three-fourths of the states (38 out of 50).

While the process of calling for a constitutional convention has been initiated by states multiple times throughout history, it is worth noting that constitutional conventions, in general, seem to have fallen out of favor. The last state to hold a convention was Rhode Island in 1986, and there has not been a single convention in almost 40 years.

Three-quarters of state legislatures must ratify the amendment

The United States Constitution, in Article V, provides two methods for proposing amendments: one through Congress and the other through state legislatures. While Congress proposes amendments with a two-thirds majority vote in both chambers, state legislatures can initiate the process by calling for a constitutional convention with support from two-thirds of the states. Notably, no amendment has ever been proposed through a constitutional convention.

Once an amendment is proposed, it must be ratified by three-quarters of the state legislatures, or 38 out of 50 states, to become part of the Constitution. This requirement holds true regardless of whether the amendment was proposed by Congress or a constitutional convention. The ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA), and the Director of the Federal Register.

When a state ratifies a proposed amendment, it sends an original or certified copy of the action to the Archivist, who then forwards it to the Director of the Federal Register for examination and custody. The Office of the Federal Register (OFR) within NARA plays a crucial role in this process. It examines ratification documents for facial legal sufficiency and authenticating signatures. The OFR retains these documents until an amendment is adopted or fails, after which they are transferred to the National Archives for preservation.

It is important to note that there is no specified time limit within which the three-quarters of the states must ratify a proposed amendment. However, Congress has recently specified time limits for the ratification of recent amendments, typically within seven years of proposal. Additionally, the OFR drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution once it receives the required number of authenticated ratification documents. This certification is published in the Federal Register and serves as official notice to Congress and the nation that the amendment process is complete.

State governors submit amendments to state legislatures

The United States Constitution outlines the process for amending it in Article V. While Congress typically initiates amendments with a two-thirds majority vote in both the House of Representatives and the Senate, there is another path that bypasses Congress and involves state governors and legislatures.

State governors play a crucial role in this alternative amendment process. After Congress proposes an amendment, the Archivist of the United States, who leads the National Archives and Records Administration (NARA), initiates the ratification process. The Archivist delegates many duties to the Director of the Federal Register, who sends a letter of notification and informational material about the proposed amendment to each state governor.

At this point, state governors become central to the process. They formally submit the proposed amendment to their respective state legislatures. The state legislatures can then take action on the proposed amendment. Notably, some state legislatures have not waited for official notification before acting on a proposed amendment.

For a proposed amendment to become an official part of the Constitution, it must be ratified by at least three-fourths of the states (38 out of 50). When a state ratifies, it sends an original or certified copy of its action to the Archivist, who forwards it to the Director of the Federal Register for examination and custody.

Once the required number of ratification documents is received, the Office of the Federal Register (OFR) drafts a formal proclamation for the Archivist to certify that the amendment is valid. This certification is published in the Federal Register and U.S. Statutes at Large, officially notifying Congress and the nation that the amendment process is complete.

While this process involves state governors and legislatures, it is initiated by Congress's proposal of an amendment. The governors serve as intermediaries, submitting the amendment to their state legislatures for consideration and potential ratification.

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State legislatures can take action on a proposed amendment before receiving official notice

The process of amending the United States Constitution is a complex and challenging task, as the framers intended it to be. It requires careful consideration and a high threshold for approval. The Constitution provides two methods for initiating the amendment process, both of which involve significant legislative involvement.

The first method, outlined in Article V of the Constitution, allows Congress to propose amendments with a two-thirds majority vote in both the House of Representatives and the Senate. This process has been utilized for all 27 amendments that have been successfully ratified and incorporated into the Constitution. Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA) for processing and publication. NARA's Office of the Federal Register (OFR) plays a crucial role in this process by examining the ratification documents for legal sufficiency and authenticity.

The second method, which has never been used successfully, involves a constitutional convention called for by two-thirds of the state legislatures. This method allows states to bypass Congress in proposing amendments. However, even in this scenario, state legislatures take action on a proposed amendment before receiving official notice from Congress. This proactive approach by state legislatures demonstrates their eagerness to participate in the amendment process and shape the direction of constitutional changes.

Historically, some state legislatures have not waited for official notice before taking action on proposed amendments. This proactive approach allows states to expedite the amendment process and assert their influence. When a state ratifies a proposed amendment, it submits an original or certified copy of the state action to the Archivist of the United States, who then conveys it to the Director of the Federal Register. The OFR retains these documents until an amendment is adopted or fails, ensuring the integrity and security of the ratification process.

The amendment process is designed to be deliberate and inclusive, requiring the approval of three-fourths of the state legislatures for an amendment to become part of the Constitution. This ensures that any changes made to the nation's foundational document reflect the will of the people and protect their rights. The ability of state legislatures to take action on proposed amendments before receiving official notice highlights the dynamic nature of the amendment process and the important role played by state-level legislative bodies.

The Archivist of the United States certifies that the amendment is valid

The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA). The Archivist is responsible for the supervision and direction of the National Archives. The Archivist's role in the constitutional amendment process is minimal and purely ministerial. The Archivist does not make any substantive determinations as to the validity of state ratification actions. Instead, they examine ratification documents for facial legal sufficiency and authenticating signatures.

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.

The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. The Director of the Federal Register examines ratification documents for facial legal sufficiency and authenticating signatures. If the documents are in good 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 also has duties concerning the custody of Electoral College documents, such as certificates of ascertainment and certificates of vote produced by the electors of each state. These administrative responsibilities are typically delegated to the Director of the Federal Register.

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