The Challenge: Creating A Constitutional Amendment

The process of amending the US Constitution is a difficult and time-consuming endeavour. The Constitution has been amended only 27 times since it was drafted in 1787, with the first 10 amendments being adopted and ratified simultaneously as the Bill of Rights. Article V of the Constitution outlines the two methods for proposing amendments. The first method involves a two-thirds majority vote in both the House of Representatives and the Senate, while the second method involves a constitutional convention called for by two-thirds of the state legislatures. Regardless of the method, an amendment must be ratified by three-fourths of the state legislatures or ratifying conventions in three-fourths of the states. This process ensures that any changes to the Constitution are carefully considered and have a significant impact on the nation.

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The US Constitution's Article V outlines the amendment process

The US Constitution's Article V outlines the process for amending the Constitution. The process to alter the Constitution consists of proposing an amendment or amendments, and subsequent ratification. Amendments can be proposed in two ways: by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention requested by two-thirds of the state legislatures.

The first method, proposing an amendment by Congress, is the only method that has been used thus far. The second method, a constitutional convention, has never been used. Once an amendment is proposed, it is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes and publishes the amendment 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 either the legislatures of three-quarters of the states or by ratifying conventions in three-quarters of the states. This process has only been used once in American history, for the 1933 ratification of the Twenty-First Amendment. Each state's vote carries equal weight, regardless of population or length of time in the Union. Once an amendment is ratified by three-quarters of the states (38 out of 50), it becomes part of the Constitution.

The amendment process is deliberately difficult and time-consuming, as the framers of the Constitution intended it to endure for ages. Since it was drafted in 1787, there have been 27 amendments to the Constitution, including the first 10 amendments, known as the Bill of Rights.

Amendments are proposed by Congress with a two-thirds majority

The process of amending the US Constitution is a difficult and time-consuming endeavour. The framers of the Constitution made it challenging to amend the document to ensure its longevity. Since 1787, the Constitution has been amended only 27 times, with the first 10 amendments, known as the Bill of Rights, being adopted and ratified simultaneously.

The second method, which has never been used, involves a constitutional convention called for by two-thirds of the state legislatures. This method allows for amendments to be proposed outside of Congress. However, even in this case, the proposed amendment would still need to be ratified by either the legislatures or ratifying conventions in three-quarters of the states, similar to the process for amendments proposed by Congress.

Once an amendment is proposed by Congress with a two-thirds majority, it is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication. The Office of the Federal Register (OFR) within NARA plays a crucial role in this stage. They add legislative history notes to the joint resolution and publish it in slip law format, creating an official record of the proposed amendment.

The proposed amendment then enters the ratification process, where it must be approved by the legislatures of three-quarters of the states (38 out of 50 states). This process can be conducted through ratifying conventions or by a vote of the state legislatures, depending on what Congress specifies. Once the required number of states has ratified the amendment, 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.

Ratification by three-fourths of state legislatures is required

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. The process is intentionally difficult and time-consuming, as Chief Justice John Marshall wrote in the early 1800s that the Constitution was written "to endure for ages to come".

The first step in the process is for the proposed amendment to be passed by two-thirds of both houses of Congress, or by a constitutional convention called for by two-thirds of the state legislatures. Once an amendment has been proposed, it must be ratified by the legislatures of three-fourths of the states, i.e. 38 out of 50 states, to become part of the Constitution. This process is managed by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with this function to 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 immediately conveyed to the Director of the Federal Register. The OFR examines 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.

Once the OFR 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.

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The Archivist of the US administers the ratification process

The process of amending the US Constitution is a complex and lengthy one, and the authority to do so is derived from Article V of the Constitution. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), plays a crucial role in this process by administering the ratification process. The current Archivist of the United States is Colleen Joy Shogan, who was nominated by President Joe Biden and confirmed by the Senate in 2023.

Once Congress proposes an amendment, the Archivist submits the proposed amendment to the States for their consideration. This is done by sending a letter of notification to each Governor, along with informational material prepared by NARA's Office of the Federal Register (OFR). The OFR plays a key role in this process by providing states with the necessary information and documents, including formal "red-line" copies of the joint resolution and the statutory procedure for ratification.

When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is then conveyed to the Director of the Federal Register. The OFR examines these ratification documents for facial legal sufficiency and the presence of an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them until the amendment is adopted or fails.

Once the OFR verifies that it has received the required number of authenticated ratification documents (ratification by three-fourths of the States or 38 out of 50 States), it drafts a formal proclamation for the Archivist to certify. This certification confirms that the amendment is valid and has become part of the Constitution. The Archivist's 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 Archivist's role in the ratification process is primarily administrative, following established procedures and customs. They do not make substantive determinations about the validity of State ratification actions but rather certify the facial legal sufficiency of the ratification documents. This certification is a critical step in the process, ensuring the integrity of the constitutional amendment process and confirming that any changes to the Constitution are carried out according to the law.

Amendments can be appended or inserted into the original text

Amendments to a constitution can take the form of revisions to the previous text. This means that once an amendment has become law, parts of the original text may be deleted or new articles may be inserted among existing ones. This is the most common method of amending a constitution.

The second, less common method is for amendments to be appended to the end of the main text in the form of special articles of amendment, leaving the body of the original text intact. Although the wording of the original text is not altered, the doctrine of implied repeal applies. This means that, in the event of conflict, an article of amendment will usually take precedence over the provisions of the original text, or of an earlier amendment.

There may still be ambiguity over whether an amendment is intended to supersede or to supplement an existing article in the text. However, an article of amendment may explicitly express itself as having the effect of repealing a specific existing article.

In the United States, the Constitution has been amended 27 times since it was drafted in 1787. The process of amending the US Constitution is outlined in Article V, which establishes two methods for proposing amendments. The first method requires both the House and Senate to propose a constitutional amendment by a two-thirds majority vote in both the House of Representatives and the Senate. The second method, which has never been used, is for two-thirds of the state legislatures to ask Congress to call a Constitutional Convention.

Once an amendment has been proposed, it must be ratified by either the legislatures of three-quarters of the states (38 out of 50 states), or by ratifying conventions conducted in three-quarters of the states. This second method has only been used once in American history, for the ratification of the Twenty-First Amendment in 1933.

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