Amending The Constitution: Understanding The Process

The process of amending a constitution varies across different countries. In the United States, Article V of the Constitution outlines the procedure for altering the document. It involves proposing an amendment, which can be done 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. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states. This process ensures that any changes to the Constitution are carefully considered and have a significant impact on the country. Other countries, such as Brazil, Ethiopia, and Germany, have their own unique processes for constitutional amendments, highlighting the importance of adapting and refining a nation's foundational document to meet the evolving needs of its citizens.

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The US Constitution's Article V

Article V of the US Constitution outlines the procedures for amending the Constitution. It establishes two methods for proposing amendments:

Proposal by Congress

The first method involves the House of Representatives and the Senate proposing a constitutional amendment with a two-thirds majority vote in both houses. This is the only method that has been used so far to propose amendments.

Proposal by Constitutional Convention

The second method involves Congress calling a constitutional convention upon the request of two-thirds of the state legislatures. However, this method has never been used to propose amendments.

Once an amendment is proposed, it must be ratified to become part of the Constitution. Article V sets forth two methods for states to ratify amendments:

Ratification by State Legislatures

The first method of ratification requires the approval of three-fourths of the state legislatures, or 38 out of 50 states.

Ratification by Conventions

The second method involves ratification by conventions in three-fourths of the states.

Congress determines which method of ratification the states must follow. The authority to amend the Constitution is derived from Article V, and it has been used to propose 33 constitutional amendments, 27 of which have been ratified by the states.

Two-thirds majority in both houses

The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. Amending the Constitution is a difficult task, and for good reason. The process of proposing an amendment is the first step towards changing the supreme law of the land, and it requires a two-thirds majority vote in both the House of Representatives and the Senate. This is known as the Congress method, and it has been used to propose thirty-three constitutional amendments.

The two-thirds majority in both houses of Congress is an important safeguard to ensure that any proposed amendment has broad support across the country. It also ensures that the amendment is not a partisan measure but one that has the backing of a supermajority of legislators. This is a critical threshold because it means that any amendment must have support from both major parties in Congress, as well as from a significant number of independents or members of smaller parties. This helps to ensure that the amendment is in the best interests of the nation as a whole, rather than serving the interests of a particular political party or ideology.

The two-thirds majority requirement also helps to ensure that the amendment process is not abused and that the Constitution remains a stable and enduring framework for the nation's laws and governance. By requiring such a large majority, the framers of the Constitution made it difficult to make changes without careful consideration and broad consensus. This protects the integrity of the Constitution and ensures that it remains a reliable foundation for the country's legal system.

In addition to the Congress method, there is another way to propose amendments, which is through a constitutional convention called for by two-thirds of the state legislatures. However, this method has never been used to propose any of the 27 amendments to the Constitution. The Congress method is therefore the primary means of proposing amendments, and the two-thirds majority requirement plays a crucial role in ensuring the integrity and stability of the amendment process.

The two-thirds majority in both houses of Congress is a critical safeguard in the amendment process, ensuring that any changes to the Constitution are carefully considered and broadly supported. This requirement helps to protect the nation's supreme law from partisan interests and ensures that amendments are in the best interests of the country as a whole. By requiring a supermajority, the framers of the Constitution created a robust and enduring framework for governing the nation.

Ratification by three-quarters of states

The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. The framers made amending the document a difficult task. The authority to amend the Constitution of the United States is derived from Article V of the Constitution.

Article V establishes two methods for proposing amendments to the Constitution. The first method authorizes Congress, "whenever two-thirds of both houses shall deem it necessary," to propose constitutional amendments. The second method requires Congress, "on the application of the legislatures of two-thirds of the several states" (34 as of 1959), to "call a convention for proposing amendments". This duality in Article V is the result of compromises made during the 1787 Constitutional Convention between two groups, one maintaining that the national legislature should have no role in the constitutional amendment process, and another contending that proposals to amend the Constitution should originate in the national legislature and their ratification should be decided by state legislatures or state conventions.

Since the Founding, Congress has used Article V’s procedures to propose thirty-three constitutional amendments. Twenty-seven of these amendments have been ratified and are now part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states and are not part of the Constitution.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-quarters of the States (38 of 50 States). The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with the responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. When 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 the Congress and to the Nation that the amendment process has been completed.

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Amendments outside Article V

Article V of the U.S. Constitution outlines the procedures for amending the Constitution. It states that whenever two-thirds of both Houses of Congress deem it necessary, they shall propose Amendments, or on the application of the Legislatures of two-thirds of the States, a Convention for proposing Amendments shall be called. In either case, the Amendments become valid when ratified by three-fourths of the States.

However, there have been arguments and debates about the possibility of Amendments outside the scope of Article V. Constitutional theorist Akhil Amar has suggested that the Constitution may be amended by a national popular referendum or comparable mechanisms, which is not outlined in Article V. This view challenges the conventional reading of Article V as the exclusive mechanism for lawful constitutional amendment.

Additionally, some states in the U.S. have different processes for initiating constitutional amendments. For example, there are three methods for proposing an amendment to the California State Constitution: by the legislature, by constitutional convention, or by voter initiative. These variations in state-level amendment processes further demonstrate that constitutional changes can occur through mechanisms other than those prescribed by Article V.

In other countries, there are also varying processes for amending their constitutions. For instance, the Constitution of Brazil outlines specific terms for its amendment, including the involvement of the Chamber of Deputies, the Federal Senate, and the President of the Republic. Similarly, the Constitution of Ethiopia can only be modified by a two-thirds majority of its regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly. These examples highlight that while Article V governs amendments to the U.S. Constitution, different countries and even states within the U.S. may have their own unique processes for constitutional amendments.

State-specific amendment rules

The U.S. Constitution is difficult to change and has only been amended 27 times. On the other hand, state constitutions are amended regularly, with the current constitutions of the 50 states having been amended around 7,000 times.

State legislatures generate more than 80% of constitutional amendments that are considered and approved annually. States differ in the methods and requirements for amending their constitutions. Some states allow for initiating the amendment process through the action of the state legislature or by popular initiative. For instance, there are three methods for proposing an amendment to the California State Constitution: by the legislature, by constitutional convention, or by voter initiative. A proposed amendment must be approved by a majority of voters.

With the legislative method, a proposed amendment must be approved by an absolute supermajority of two-thirds of the membership of each house. With the convention method, the legislature may, by a two-thirds absolute supermajority, submit to the voters at a general election the question of whether to call a convention to revise the Constitution. If a majority of voters vote yes, the Legislature shall provide for the convention within six months.

Conventions continue to offer a potential path for amending state constitutions, despite the lack of convention activity in recent decades. Conventions are usually called by legislators, who must approve a convention referendum, with a majority legislative vote needed to call a convention referendum in most states and a supermajority legislative vote in others. In all but a few states, a referendum on calling a convention must then be submitted to and approved by a majority of voters. However, in four states, it is possible to bypass the legislature and call a convention through the initiative process. Additionally, in 14 states, referendums on calling a convention are required to appear on the ballot automatically at periodic intervals ranging from 10 to 20 years, depending on the state.

The constitutions of Alabama, Louisiana, South Carolina, Texas, and California are amended more than three to four times per year, on average. In contrast, the Tennessee, Kentucky, Indiana, Illinois, and Vermont constitutions are amended only once every three to four years, on average.

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