The Process Of Ratifying Constitutional Amendments Explained

The United States Constitution is designed to be a flexible document that can be modified to meet the changing needs of the country. The process of amending it is outlined in Article V, which states that amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a convention called for by two-thirds of state legislatures. Once an amendment is proposed, it must be ratified. Ratification can occur in one of two ways: by a vote of the state legislatures or by ratifying conventions in three-fourths of the states (38 out of 50). This process ensures that any changes to the Constitution have widespread support across the country and empowers states to have a direct say in the foundational legal document that governs them.

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The role of Congress in the amendment process

The United States Constitution is designed to be responsive to the changing needs of the country. It provides mechanisms for its own amendment, allowing it to remain relevant. The process of amending the Constitution begins in Congress.

Congress proposes an amendment in the form of a joint resolution. A new amendment requires a two-thirds majority vote in both the House of Representatives and the Senate. This highlights the necessity of bipartisan backing. After gaining congressional approval, the amendment is sent to the states for ratification.

Congress determines the mode of ratification. There are two methods by which states may ratify amendments to the Constitution. The first method requires the approval of the legislatures in three-fourths of the states (38 out of 50 states). The second method, which has only been used once in history, for the Twenty-First Amendment, requires approval by ratifying conventions in three-fourths of the states.

The Archivist of the United States is responsible for administering the ratification process. When the required number of authenticated ratification documents is received, the Archivist certifies that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and serves as official notice to Congress and the nation that the amendment process is complete.

The two methods of amending the Constitution

Ratification is the process of officially approving and enacting a proposed constitutional amendment. This process is outlined in Article V of the United States Constitution, which provides two methods for amending the nation's frame of government.

The first method, which has been used for all 33 amendments submitted to the states for ratification, authorises Congress to propose constitutional amendments with a two-thirds majority vote in both the House of Representatives and the Senate. Once an amendment is proposed, it is forwarded to the Office of the Federal Register (OFR) for processing and publication. The OFR then assembles an information package for the states, which includes formal copies of the joint resolution and the statutory procedure for ratification. The proposed amendment is then submitted to the states for their consideration.

The second method, which has never been used, is the convention option. This method allows for a constitutional convention to be called for by two-thirds of the state legislatures, enabling them to propose amendments directly.

Once an amendment has been proposed, either by Congress or by constitutional convention, it must be ratified to become part of the Constitution. Ratification can occur through one of two methods, as determined by Congress:

• Ratification by the legislatures of three-quarters of the states (38 out of 50 states).
• Ratification by ratifying conventions in three-quarters of the states. This method has only been used once in American history, with the 1933 ratification of the Twenty-First Amendment.

The vote of each state carries equal weight, regardless of its population or length of time in the Union. 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 serves as official notice that the amendment process is complete.

The ratification process

The first method, known as state legislature ratification, requires the approval of the legislatures in three-fourths of the states (currently 38 out of 50 states). This ensures that any changes to the Constitution have widespread support across the country and empowers states to have a direct say in the foundational legal document that governs them. This method also helps to balance change and stability, ensuring that amendments are carefully considered by a substantial majority.

The second method, known as ratification through state convention, is the less commonly used method. It requires the approval of three-fourths of state ratifying conventions, with each state holding a convention specifically to consider the amendment. This method has only been used once in American history, for the 1933 ratification of the Twenty-First Amendment.

Once a proposed amendment has been ratified by the required number of states, the Office of the Federal Register (OFR) examines the ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the OFR drafts a formal proclamation for the Archivist of the United States 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.

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The role of the Archivist

While the Archivist has delegated many of the ministerial duties to the Director of the Federal Register, they play a crucial role in ensuring the smooth functioning of the process. The Archivist and the Director follow procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties until NARA assumed responsibility in 1985.

When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action. This copy is immediately conveyed to the Director of the Federal Register, who examines the ratification documents for facial legal sufficiency and an authenticating signature. The Director then acknowledges receipt and maintains custody of the documents until an amendment is adopted or fails.

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 has been completed. The Archivist's certification of the facial legal sufficiency of ratification documents is considered final and conclusive.

In recent times, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President. The Archivist's role in the constitutional amendment process ensures the integrity and finalisation of the ratification process, making it an essential function in amending the Constitution.

Ratification by state convention

The United States Constitution, in Article Five, outlines the procedure for amending it. Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a convention called for by two-thirds of state legislatures.

The convention method of ratification was designed to potentially bypass state legislatures and allow the sentiments of registered voters to be more directly considered on highly sensitive issues. The theory is that delegates to the conventions, presumably average citizens, would be less likely to bow to political pressure than state legislators.

The process of calling for a state convention varies. In New Mexico, the governor has 10 days to call a convention, which is formed by all members of the state legislature. In Vermont, the governor has 60 days to call for the election of delegates, with the state convention consisting of 14 members, two from each county, one for ratification and one against.

In 1933, the 38 state conventions that considered the Twenty-First Amendment followed a variety of procedures. The delegates, most of whom supported the repeal of the Eighteenth Amendment, did not engage in significant deliberation on an issue that already had strong popular support.

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