Simone Lawson
The process of reversing or amending a constitutional amendment is a complex and challenging endeavour. To initiate the process, a two-thirds majority vote in both the House of Representatives and the Senate is required, or a constitutional convention called for by two-thirds of state legislatures. This step proposes the amendment for ratification. For an amendment to be ratified and become part of the Constitution, it must be approved by either three-quarters of state legislatures or special conventions, depending on what Congress specifies. This process, outlined in Article V of the Constitution, serves as a safeguard against impulsive changes to the foundational document of a nation. The high threshold for altering the Constitution ensures stability and continuity while allowing for necessary amendments when a broad consensus is achieved.
| Characteristics | Values |
|---|---|
| Authority to amend the Constitution | Article V of the Constitution |
| Who can propose an amendment? | Congress with a two-thirds majority vote in both the House of Representatives and the Senate |
| Alternative proposer of an amendment | 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 ratified amendments in the past? | 38 of 50 states |
| Number of amendments approved by Congress but never fully ratified by the states | 6 |
| Number of amendments to the Constitution | 27 |
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What You'll Learn
Two-thirds majority in Congress
The process of reversing or amending the US Constitution is outlined in Article V of the US Constitution. This article provides two methods for amending the Constitution.
The first method requires a two-thirds majority vote in both the House of Representatives and the Senate, also known as Congress. This means that two-thirds of both houses must agree that an amendment is necessary before it can be proposed and sent for ratification. This process bypasses the President, as the joint resolution does not require their signature or approval. Instead, the original document is sent directly to the National Archives and Records Administration (NARA) for processing and publication.
Once an amendment is proposed, it must then be ratified. Ratification can be achieved through the legislatures of three-quarters of the states (38 out of 50 states) or by ratifying conventions in three-quarters of the states. The mode of ratification is determined by Congress.
It is important to note that the process of amending the Constitution is deliberately challenging. The odds of repealing an amendment are extremely slim, comparable to the odds of an 80-year-old being struck by lightning during their lifetime.
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Ratification by three-quarters of states
Ratification by three-quarters of the states, or 38 out of 50 states, is one of two ways to repeal a constitutional amendment. This process can be initiated by Congress, which proposes an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. The proposed amendment is then sent to the states for ratification.
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. 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 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 until an amendment is adopted or fails, at which point the records are transferred to the National Archives for preservation.
Once three-quarters of the states have ratified the proposed amendment, 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 has been completed.
It is important to note that the ratification process for proposed amendments is not defined in detail by Article V of the Constitution or the relevant federal legislation. Instead, the Archivist and Director of the Federal Register follow procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties.
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A constitutional convention
The process of reversing or amending the US Constitution is a challenging and time-consuming endeavour. The Constitution has only been amended 27 times since it was first drafted in 1787, and the authority to make changes is derived from Article V of the Constitution.
The process of amending the Constitution through a constitutional convention begins with the state legislatures. Two-thirds of state legislatures must request that Congress call for a constitutional convention. Once the convention is called, an amendment can be proposed. The proposed amendment must then be ratified by three-fourths of the states (38 out of 50 states) to become part of the Constitution.
The process of amending the Constitution through a constitutional convention allows for a more direct involvement of the states in proposing and ratifying amendments. However, it is important to note that the President does not have a constitutional role in the amendment process, regardless of the method used to propose the amendment.
While a constitutional convention has never been used to propose an amendment, some individuals, such as retired federal judge Malcolm R. Wilkey, have supported the idea. Judge Wilkey argued that the Constitution has been corrupted by gridlock, excessive influence by interest groups, and members of Congress focused on re-election rather than the nation's interests.
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State legislatures
Once an amendment is proposed, either by Congress or a constitutional convention, it is submitted to the state legislatures by the governors. The state legislatures then vote on whether to ratify the amendment. An amendment becomes part of the Constitution once it is ratified by three-fourths of the states (38 out of 50 states).
It is worth noting that state legislatures also play a significant role in amending their respective state constitutions. State legislatures generate more than 80% of constitutional amendments considered and approved annually across the country. The requirements for crafting and approving amendments vary by state, with some requiring majority legislative support and others supermajority support. Some states also require legislative support to be expressed in a single session, while others need two consecutive sessions.
In summary, state legislatures have the authority to initiate and ratify amendments to the US Constitution, as well as amend their own state constitutions. While the process of amending the US Constitution is challenging, state legislatures have successfully utilised their power to propose and ratify amendments, shaping the nation's legal framework.
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The President's role
The President does not have a constitutional role in the amendment process. The Congress proposes an amendment in the form of a joint resolution, which does not go to the White House for signature or approval. 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 Constitution does not specifically establish a role for the President in amending the Constitution. However, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. For example, 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 characterized the Court's decision in Hollingsworth as having settled that the submission of a constitutional amendment did not require the action of the President. Despite being advised that his signature was unnecessary, President Jimmy Carter signed a joint resolution purporting to extend the deadline for ratification of the Equal Rights Amendment. Therefore, the Court appears to have adopted the view that the President cannot veto a proposed amendment.
In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. For example, President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon witnessed the certification of the 26th Amendment along with three young scholars.
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