Can Americans Change The Constitution Through Plebiscite?

The US Constitution can be amended either by 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. A plebiscite, or referendum, is not mentioned in Article V of the Constitution, which outlines the authority to amend the document. Instead, the Archivist of the United States is responsible for administering the ratification process, which involves receiving authenticated ratification documents from three-fourths of the States (38 out of 50). While some countries, like Ireland and Australia, require constitutional amendments to be approved by referendum, the US amendment process does not include a plebiscite.

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The US Constitution amendment process

The US Constitution derives its authority to be amended from Article V. This article outlines the process by which amendments are proposed and ratified. The process is initiated by either 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.

To date, all 33 amendments submitted to the states for ratification have been proposed by Congress, and none have been proposed by constitutional convention. When Congress proposes an amendment, it does so in the form of a joint resolution, which is then forwarded directly to the National Archives and Records Administration (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes and publishes the resolution in slip law format, as well as assembling an information package for the states.

For an amendment to become part of the Constitution, it must be ratified by three-quarters of the states (38 out of 50). 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, serving as official notice to Congress and the nation that the amendment process is complete.

The ratification process is administered by the Archivist of the United States, who heads NARA, and they follow procedures and customs established by the Secretary of State and the Administrator of General Services. In recent history, the signing of the certification has become a ceremonial function attended by dignitaries, sometimes including the President.

While Article V outlines the amending process, there is debate among scholars about whether it is the exclusive means of amending the Constitution. Some argue that there may be other routes to amendment, including periods of sustained political activity by a mobilized national constituency. Additionally, some judicial decisions have introduced new meanings to constitutional language, resulting in constitutional change independent of the Article V process.

Congress proposes an amendment

The process of amending the US Constitution is a difficult and time-consuming task. The authority to amend the Constitution is derived from Article V of the Constitution. The process begins with Congress proposing an amendment 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 adds legislative history notes to the joint resolution and publishes it in slip law format. An information package is also assembled 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.

Once the proposed amendment has been submitted to the States, each Governor receives a letter of notification along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures. It is important to note that the President does not have a constitutional role in this process, and the joint resolution does not require their signature or approval.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the States (38 out of 50 States). When the OFR receives 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, serving as official notice to Congress and the Nation that the amendment process is complete. The signing of this certification has become a ceremonial function attended by various dignitaries, including, on some occasions, the President.

While Congress has the power to initiate the amendment process, it is important to note that none of the 27 amendments to the Constitution have been proposed by Congress. The process of amending the Constitution was intentionally made challenging by its framers to ensure its longevity. As a result, the amendment process is time-consuming and requires significant support in both Congress and the States.

Ratification by three-fourths of States

The US Constitution, in Article V, outlines two methods of ratifying amendments, one of which involves ratification by three-fourths of the states, i.e., 38 out of 50 states. This is the most common method used, with 27 amendments having been ratified by this process so far. Each state legislature must approve the amendment, and this method ensures that any changes to the Constitution have widespread support across the country.

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. After Congress proposes an amendment, the Archivist submits the proposal to the states for their consideration. The amendment is then formally submitted to state legislatures, and if ratified, the state sends an original or certified copy of the action to the Archivist.

The Office of Federal Register (OFR) examines the ratification documents for legal sufficiency and authenticity of 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, serving as official notice to Congress and the nation that the amendment process is complete.

The other method of ratification by three-fourths of the states involves conventions specifically held to consider the amendment. This method has been used only once for the ratification of the 21st Amendment, which repealed Prohibition. It allows states to reflect the will of their constituents directly and ensures that amendments have broad support.

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Direct approval by the electorate

The US Constitution can be amended by a process outlined in Article V of the Constitution. An amendment may 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. A proposed amendment becomes part of the Constitution when it is ratified by three-quarters of the states (38 out of 50).

In some jurisdictions, a referendum to amend the constitution may be triggered by a popular initiative. For example, in Ireland and Australia, amendments are first passed by the legislature and then submitted to the people for approval. In Ireland, a simple majority of those voting is required, while in Australia, a majority of voters in a majority of states is necessary. Switzerland has a similar procedure to Australia.

The special procedures for amending constitutions vary in their level of exactingness. Some, like the former constitution of the US state of Alabama, have been amended nearly 1000 times, while others, like Japan, have had none pass over several decades.

Amendments by constitutional convention

The authority to amend the US Constitution comes from Article V of the Constitution. Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, amendments can also be proposed by a constitutional convention called for by two-thirds of state legislatures (34 out of 50). This method of proposing amendments has never been used, and some scholars debate whether it is binding.

The process of amending the Constitution through a constitutional convention begins with the states. When two-thirds of state legislatures (or 34 out of 50 states) call for a convention, Congress is required to convene one. This convention then proposes amendments, which become valid and part of the Constitution when ratified by three-fourths of the states (38 out of 50).

The convention method for proposing amendments, also known as an Article V Convention, has never been used. However, there have been over 230 constitutional conventions at the state level. The original 1787 Constitutional Convention in Philadelphia aimed to address the flaws in the Articles of Confederation, which required unanimous consent from all 13 states for any constitutional reform. The convention sought to balance the need for stability with the ability to make necessary changes.

Some scholars argue that states can determine the scope of an Article V convention by applying for a convention on specific subjects or amendment texts. However, others disagree, stating that the Constitution only provides for a general convention without limiting its scope to particular issues. Law Professor Emeritus William A. Woodruff highlights James Madison's concerns about an Article V convention, warning of potential unintended consequences. Madison, often referred to as the "Father of the Constitution," preferred giving the national legislature the sole authority to propose amendments.

While the convention method for proposing amendments has never been utilised, it remains a valid option under Article V of the Constitution. The process involves state legislatures initiating the call for a convention, followed by ratification by a significant majority of states to enact the proposed amendments into law.

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