The Challenge Of Amending The Constitution

Amending a constitution is a difficult and time-consuming process. The U.S. Constitution, for example, has only been amended 27 times since 1787. In the U.S., 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. After an amendment is proposed, it must be ratified by three-fourths of the states (38 out of 50). The process for amending a constitution varies across jurisdictions, with some constitutions, such as that of Japan, proving so exacting that no amendments have been passed in several decades.

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The amendment process

In contrast, state constitutions in the US are much easier to modify, and state constitutional amendments are adopted regularly. The current constitutions of the 50 states have been amended around 7,000 times. For example, the former constitution of the state of Alabama was amended 977 times between its adoption in 1901 and its replacement in 2022.

In other countries, the process for amending the constitution also varies. For instance, in the Netherlands, a simple majority in the lower house of parliament is required to propose a change to the constitution. However, to actually implement the change, a two-thirds majority is needed in both houses of parliament. In Ethiopia, the constitution can only be modified by a two-thirds majority of the country's regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly.

Some constitutions, such as that of the United Kingdom, do not have a written amendment process, leaving the final authority on all quasi-constitutional matters to the legislature, which can amend the constitution by a simple majority.

Congress proposes an amendment

The process of amending the Constitution of the United States is a difficult and time-consuming task. The framers made it challenging to ensure the document's longevity. Since 1787, the Constitution has been amended only 27 times, including the first ten amendments, which were adopted in 1791 as the Bill of Rights.

The authority to amend the Constitution is derived from Article V of the Constitution. Congress proposes an amendment in the form of a joint resolution, which requires a two-thirds majority vote in both the House of Representatives and the Senate. This means that at least two-thirds of both Houses must deem the amendment necessary. The joint resolution does not go to the White House for signature or approval, as the President does not have a constitutional role in the amendment process. 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 OFR adds legislative history notes to the joint resolution and publishes it in slip law format. Additionally, they assemble an information package for the States, which includes formal "red-line" copies of the joint resolution and copies in slip law format. Once a proposed amendment is ratified by three-fourths of the States (38 out of 50), it becomes part of the Constitution.

The process of amending a constitution varies across different jurisdictions. Some constitutions, like that of the United Kingdom, allow for amendments to be made by a simple majority in parliament. In contrast, others, like the Constitution of Ethiopia, require a two-thirds majority in both houses of parliament and a two-thirds majority of the country's regions. Amendments can be interwoven into the relevant sections of an existing constitution, directly altering the text, or they can be appended as supplemental additions (codicils), changing the frame of government without altering the existing text. While the process of amending the U.S. Constitution is challenging, state constitutions are much easier to modify, and amendments are adopted more frequently.

Ratification by state legislatures

The United States Constitution was crafted to endure the test of time, and as such, the process of amending it is deliberately challenging and time-consuming. The Constitution has been amended only 27 times since 1787, and all amendments have been proposed by Congress, with none proposed by constitutional convention.

The first step in the process is for two-thirds of both houses of Congress to pass a proposed amendment, or for two-thirds of state legislatures to request that Congress call a constitutional convention to propose an amendment. Once an amendment has been proposed, it must be ratified by three-fourths of the state legislatures (38 out of 50 states).

The process of ratification by state legislatures varies from state to state. In some states, the governor formally submits the proposed amendment to the state legislature, while in other states, the legislature takes action on its own. Some state legislatures require the support of a majority of legislators, while others require supermajority support. Additionally, some states require legislative support to be expressed in a single session, while others allow for two consecutive sessions.

Once a state ratifies a proposed amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who administers the ratification process. 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 acknowledges receipt and maintains custody of them until the amendment is adopted or fails.

The process of amending state constitutions is generally much easier than amending the federal Constitution. State legislatures generate more than 80% of constitutional amendments considered and approved each year, and some states allow for amendments to be approved by a majority vote in a single session. However, the frequency of amendments varies significantly from state to state, with some states amending their constitutions multiple times per year, while others amend only once every few years.

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Certification by the Archivist

The Archivist of the United States, who is at the helm of the National Archives and Records Administration (NARA), is tasked with overseeing the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register. The procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility in 1985, are followed by the Archivist and the Director of the Federal Register.

When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action, which is then forwarded to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. The Director acknowledges receipt and maintains custody of the documents until an amendment is adopted or fails, at which point the records are transferred to the National Archives for preservation.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 out of 50). The OFR drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution when it verifies that it has received the required number of authenticated ratification documents. The 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 does not make any substantive determinations about the validity of state ratification actions, but their certification of the facial legal sufficiency of ratification documents is final and conclusive. The signing of the certification has become a ceremonial function attended by dignitaries, including the President, in recent history.

Amendments by constitutional convention

The United States Constitution was written to endure for ages, and amending it is a difficult and time-consuming process. The Constitution has been amended only 27 times since it was drafted in 1787, and none of these amendments have been proposed by constitutional convention.

A convention to propose amendments to the United States Constitution, also referred to as an Article V Convention, is one of two methods authorized by Article Five of the United States Constitution whereby amendments to the Constitution may be proposed. On the application of two-thirds of the State legislatures (34 of the 50), Congress shall call a convention for proposing amendments, which become law only after ratification by three-fourths of the states (38 of the 50).

The Article V convention method has never been used, but 33 amendments have been proposed by the other method, a two-thirds vote in both houses of Congress; 27 of these have been ratified by three-fourths of the States. Although there has never been a federal constitutional convention since the original one, at the state level, more than 230 constitutional conventions have assembled in the United States.

Some scholars have speculated that the states may prod Congress into proposing an amendment on a particular matter by applying for an Article V convention on that issue. However, some commentators have argued that Article V permits states to apply for a convention on a particular amendment text, and Congress would then be obliged to call a convention only on the issues in the state applications.

Law Professor emeritus William A. Woodruff has pointed out that James Madison, the Father of the Constitution, was opposed to an Article V convention to consider adding a bill of rights to the Constitution. Madison expressed concern about the lack of detail in the article regarding how the convention amendment process would work, stating that "difficulties might arise as to the form" a convention would take. He later proposed removing the reference to the convention amendment process, giving the national legislature sole authority to propose amendments.

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