Jonah Patel
The process of amending the U.S. Constitution is a complex and challenging endeavour, as the framers of the Constitution intended to prevent frivolous or haphazard changes. The Constitution has only been amended 27 times since its inception in 1788, with the most recent amendment, the 27th Amendment, being ratified in 1992. Amending the Constitution can be done through two methods outlined in Article V: a two-thirds majority vote in Congress or a constitutional convention called for by two-thirds of state legislatures. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states. While thousands of amendments have been proposed, the process of rescinding or repealing an amendment is even more challenging, with only one amendment, the 18th Amendment on Prohibition, successfully repealed. The rarity of constitutional amendments and the difficulty of repealing them highlight the stability and continuity that the framers sought to achieve.
| Characteristics | Values |
|---|---|
| How to propose an amendment | 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 |
| Who is responsible for administering the ratification process | The Archivist of the United States, who heads the National Archives and Records Administration (NARA) |
| Who has the power to amend the Constitution | Congress or through a constitutional convention demanded by state legislatures |
| How many amendments have been proposed | 11,699 |
| Number of amendments that have been approved by Congress but never fully ratified by the states | Six |
| Number of amendments to the Constitution | 27 |
| Number of states required to ratify an amendment | 38 of 50 |
| Number of states that voted to rescind their ratification of the Equal Rights Amendment | Five |
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What You'll Learn
- Amendments can be proposed by Congress or constitutional convention
- Ratification by three-fourths of the states
- The President does not have a constitutional role in the amendment process
- The Archivist of the United States administers the ratification process
- The Supreme Court can modify the Constitution
Amendments can be proposed by Congress or constitutional convention
The Constitution of the United States provides two methods for proposing amendments: through Congress or a constitutional convention. These methods are outlined in Article V of the Constitution.
Amendments Proposed by Congress
For an amendment to be proposed by Congress, two-thirds of both the House of Representatives and the Senate must vote for it. This is known as a joint resolution and does not require the President's signature or approval. Once the proposal is made, it is forwarded to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR then assembles an information package for the states, which includes formal "red-line" copies of the joint resolution, copies of the resolution in slip law format, and other relevant information.
Amendments Proposed by Constitutional Convention
The second method for proposing amendments involves a constitutional convention called for by two-thirds of the state legislatures (34 out of 50). This method has never been used, and all 27 amendments to date have been proposed by Congress. However, it provides a way for states to bypass Congress and propose amendments directly. The concern with this method is the possibility of a "runaway convention," where the convention exceeds its scope and proposes amendments on matters beyond the original intent.
Ratification Process
Regardless of the method of proposal, an amendment must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. This can be done through the state legislatures or state conventions, depending on what Congress specifies. The Archivist of the United States and the Director of the Federal Register play crucial roles in administering the ratification process and ensuring its legality. Once an amendment is ratified, the OFR drafts a formal proclamation for the Archivist to certify its validity, which is then published in the Federal Register and U.S. Statutes at Large.
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Ratification by three-fourths of the states
The process of rescinding a constitutional amendment is a complex and challenging endeavour. To rescind an amendment, a proposal must be made either by two-thirds of the House and Senate or by two-thirds of state legislatures calling for a constitutional convention. This proposal is then sent to the Archivist of the United States, who administers the ratification process.
Once the proposal is made, for an amendment to be rescinded, three-fourths of the states (38 out of 50) must ratify the proposal. This can be done by the state legislatures or by conventions within the states. The process of ratification involves the states sending original or certified copies of their ratification to the Archivist, who then passes them to the Director of the Federal Register for examination and custody.
The Office of the Federal Register (OFR) plays a crucial role in this process. They examine the ratification documents for legal sufficiency and authenticating signatures. If the documents are in order, the OFR drafts a formal proclamation for the Archivist to certify that the amendment rescission is valid. This certification is then published in the Federal Register, officially recognising the completion of the amendment rescission process.
It is important to note that the process of rescinding an amendment is rare and challenging. The Equal Rights Amendment, for example, fell short of ratification by three states, and later, five states voted to rescind their previous ratification. The complexity of the process underscores the intention of the framers of the Constitution to prevent frivolous or haphazard changes.
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The President does not have a constitutional role in the amendment process
The process of proposing an amendment is initiated by Congress, which proposes an amendment in the form of a joint resolution. This joint resolution does not go to the White House for signature or approval, and therefore, does not require presidential approval. This is because Article V provides no requirement for constitutional amendments to be approved by the President, unlike Article I Section 7, which mandates that all federal legislation must be presented to the President for their signature or veto before becoming law.
The joint resolution is forwarded directly to the National Archives and Records Administration's (NARA) 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, copies of the joint resolution in slip law format, and other relevant documents.
The President has, on occasion, played an informal, ministerial role in the amendment process. For example, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment, and President Jimmy Carter signed a joint resolution extending the deadline for ratification of the Equal Rights Amendment. However, the Supreme Court has affirmed that the President has no formal constitutional role in the amendment process and that their signature is unnecessary. This was established in the 1920 case of Hawke v. Smith, where the Supreme Court characterised an earlier decision in Hollingsworth v. Virginia (1798) as confirming that constitutional amendments do not require the action or approval of the President.
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The Archivist of the United States administers the ratification process
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, as well as safeguarding and making available for study all the permanently valuable records of the federal government.
The Archivist is also responsible for administering the ratification process of constitutional amendments. After Congress proposes an amendment, the Archivist, under the provisions of 1 U.S.C. 106b, is charged with administering the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. The Director examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in good order, the Director acknowledges receipt and maintains custody of them.
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 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.
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The Supreme Court can modify the Constitution
The U.S. Constitution has only 27 amendments, as the process of amending it was intended to be difficult. The framers of the Constitution knew that it would be impossible for the document to address every situation, but they also knew that it should never be amended frivolously or haphazardly.
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, an amendment can be proposed through a constitutional convention called for by two-thirds of the state legislatures. To become part of the Constitution, an amendment must be ratified by three-fourths of the states.
The Supreme Court, in many of its decisions, effectively modifies the Constitution. For example, in Stuart v. Laird (1803), the Supreme Court rejected a constitutional challenge to circuit riding, noting that the objection could not overcome practice and acquiescence. The framers also gave Congress the power to enact laws that expand the Constitution as needed to respond to unforeseen future events.
The Supreme Court has the power to interpret the Constitution and determine the constitutionality of laws and actions. This power of judicial review allows the Court to strike down laws and actions that it deems unconstitutional. The Court has used this power to shape the interpretation of the Constitution and guide the country's legal system.
While the Supreme Court can effectively modify the Constitution through its decisions and interpretations, it is important to note that the process of formally amending the Constitution is a separate and more rigorous process that involves Congress and the states.
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Frequently asked questions
The process to rescind a constitutional amendment is the same as the process to amend the constitution. An amendment must be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. The amendment then needs to be ratified by three-fourths of the states.
Only one amendment has been rescinded, the 18th Amendment, which established Prohibition.
The Supreme Court modifies the Constitution through its decisions. Congress also has the power to enact laws that expand the Constitution.
The 27th Amendment, which was added in 1992, prevents Congress from changing its own compensation during a term in progress.
The odds of a constitutional amendment being repealed are extremely slim. The chance is roughly the same as a person living to 80 years old being struck by lightning during their lifetime.
