Crafting Amendments: A Guide To Changing The Constitution

The process of amending the US Constitution is a complex and challenging task, as the framers intended when it was first drafted in 1787. To date, there have been 27 amendments to the Constitution, with the first 10 amendments being adopted in 1791 as the Bill of Rights. 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 requested by two-thirds of the state legislatures. The proposed amendment must then be ratified by three-fourths of the state legislatures or by ratifying conventions in three-fourths of the states. This process is outlined in Article V of the Constitution and administered by the Archivist of the United States, who works with the Director of the Federal Register to manage the ratification process and ensure the amendment's validity.

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Understanding Article V of the US Constitution

Article V of the US Constitution outlines the procedures for amending the Constitution. It is the authority from which the power to amend the Constitution is derived.

Article V establishes two methods for proposing amendments: the first is by a two-thirds majority vote in both houses of Congress, and the second is by a constitutional convention called for by two-thirds of state legislatures. The latter method has never been used to propose an amendment. Once an amendment is proposed, it must be ratified. This can be done in two ways: by a three-fourths majority of state legislatures or by ratifying conventions in three-fourths of states.

The process of amending the Constitution is deliberately difficult and time-consuming. This is reflected in the small number of amendments that have been made since the Constitution was drafted in 1787. The difficulty of amending the Constitution ensures that it is a stable document that can endure for ages, as Chief Justice John Marshall wrote in the early 1800s. Amendments are intended to have a major impact, affecting all Americans or securing the rights of citizens.

There is debate among scholars about whether Article V is the exclusive means of amending the Constitution. Some argue that it provides a clear and stable way of amending the document, while others suggest that there may be other routes to amendment, such as through sustained political activity by a mobilized national constituency. Additionally, there is no explicit mention of whether the procedures outlined in Article V apply to amending Article V itself.

The role of Congress in proposing amendments

The United States Constitution has been amended only 27 times since it was drafted in 1787, making it a difficult document to alter. The authority to amend the Constitution is derived from Article V of the Constitution, which outlines a two-part process for initiating constitutional change. The first method requires a two-thirds majority vote in both the House and the Senate to propose an amendment, with the presence of a quorum. This method has been used for all 33 amendments submitted to the states for ratification.

Congress has followed this procedure to propose thirty-three constitutional amendments, which were sent to the states for potential ratification. At least 11,000 proposals to amend the Constitution have been introduced in Congress, but they did not receive the required two-thirds majority in each house for submission to the states. Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA) for processing and publication. The NARA's Office of the Federal Register (OFR) adds legislative history notes and publishes the amendment in slip law format, creating an information package for the states.

The second method, which has never been used, is the convention option. This method requires Congress to call a convention for proposing amendments upon receiving applications from two-thirds of the state legislatures. This option was designed to enable state legislatures to have a say in amending the Constitution and prevent excessive power being held by the national legislature.

After an amendment is proposed by Congress, the Archivist of the United States, who heads the NARA, is responsible for administering the ratification process. The Archivist submits the proposed amendment to the states, and the governors then formally submit it to their state legislatures or call for a convention, as specified by Congress. Once an amendment is ratified by three-fourths of the states (38 out of 50), it becomes part of the Constitution. The OFR verifies the ratification documents and drafts a formal proclamation for the Archivist to certify the amendment's validity. This certification is published in the Federal Register, marking the completion of the amendment process.

The role of the Archivist and the Federal Register

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for managing the constitutional amending process. This includes submitting amendments that Congress has proposed to the states for ratification, collecting state ratifications, and certifying amendments as part of the Constitution once three-fourths of the states ratify them. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register, who assists the Archivist in this task.

The Federal Register is a division of the National Archives that publishes documents from the Executive Branch, such as presidential proclamations and executive orders, and retains custody of the original signed documents. In the context of amending the Constitution, the Office of the Federal Register (OFR) plays a crucial role in examining ratification documents for facial legal sufficiency and authenticating signatures. Once a proposed amendment is ratified by three-fourths of the states (38 out of 50), 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 then 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 Archivist and the Director of the Federal Register follow procedures established by the Secretary of State and the Administrator of General Services, who previously performed these duties until NARA assumed responsibility in 1985. The Federal Register also assists the Archivist in other areas, such as assigning public law numbers to new Acts of Congress and facilitating the publication of slip laws. Additionally, the Archivist is responsible for maintaining custody of state ratifications of amendments and issuing certificates proclaiming a particular amendment duly ratified when three-quarters of the states approve.

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Ratification by state legislatures

Once an amendment is proposed, either 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, the focus shifts to the states. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), plays a pivotal role in administering the ratification process. The Archivist, in collaboration with the Director of the Federal Register, follows established procedures and customs, ensuring the smooth progression of the amendment process.

State governors are integral to the ratification process. They formally submit the proposed amendment to their respective state legislatures. Notably, some state legislatures have been proactive, taking action on a proposed amendment even before receiving official notification. This demonstrates the enthusiasm and agency of individual states in shaping the Constitution.

When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's decision. The OFR (Office of the Federal Register) scrutinizes these ratification documents to ensure they meet the necessary legal standards and possess authenticating signatures. If the documents are in order, the Director acknowledges receipt and maintains custody of them until the amendment is either adopted or fails.

For an amendment to become an integral part of the Constitution, ratification by three-fourths of the states (38 out of 50) is required. This threshold ensures that any changes to the Constitution reflect the broad consensus of the nation. Once the OFR verifies that it has received the requisite number of authenticated ratification documents, a formal proclamation is drafted for the Archivist to certify the amendment's validity. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as an official notification to the nation that the amendment process has been successfully concluded.

The amendment process: challenges and criticisms

The amendment process has faced several challenges and criticisms over the years. Firstly, it is often criticised for being too difficult and time-consuming. As per Article V of the United States Constitution, a proposed amendment must be passed by a two-thirds majority in both the House of Representatives and the Senate, and then ratified by three-fourths of the state legislatures. This high threshold makes it challenging to enact amendments, as evidenced by the small number of successful amendments since the Constitution was drafted in 1787.

Secondly, critics argue that the process is biased in favour of the federal government and does not allow for amendments that would limit the national government's power. This criticism stems from the fact that the amendment process requires significant support from both Congress and the states, making it difficult to pass amendments that may be seen as contrary to their interests.

Additionally, some argue that the amendment process is too rigid and does not allow for modern circumstances and values to be easily incorporated into the Constitution. They contend that the Supreme Court should engage in non-originalist judicial interpretation to allow for more flexibility in interpreting the Constitution. However, supporters of the amendment process argue that the strict requirements are necessary to prevent constitutional changes that are strongly opposed by a substantial minority, thus maintaining the nation's allegiance to the Constitution.

Another challenge arises from the uncertainty surrounding a state's ability to rescind its ratification of an amendment before the amendment process is completed. While some commentators argue that a state's ratification is final and cannot be rescinded, others believe that a state should be able to change its decision before the amendment is officially adopted. This ambiguity could lead to confusion over whether a proposed amendment has been successfully incorporated into the Constitution.

Furthermore, it is important to note that the amendment process has never been initiated by a constitutional convention, despite this option being provided in Article V. All amendments to date have originated in Congress, raising questions about the effectiveness of the convention option as a tool for proposing amendments.

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