Jonah Patel
The United States Constitution was designed to be a durable document, with a formal amendment process that is challenging and time-consuming. Formal amendments to the Constitution are changes to the text of the Constitution itself, and they are difficult to achieve. They require a two-thirds majority vote in both the House of Representatives and the Senate, or a constitutional convention called for by two-thirds of the state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of the state legislatures or ratifying conventions in three-fourths of the states. The process of amending the Constitution has only been successfully completed 27 times since 1787, indicating the high bar for formal amendments to the Constitution.
| Characteristics | Values |
|---|---|
| Authority to amend | Derived from Article V of the Constitution |
| Proposal | By Congress with a two-thirds majority vote in both the House of Representatives and the Senate |
| Alternative proposal | By a constitutional convention called for by two-thirds of the state legislatures |
| Ratification | By three-fourths of the state legislatures |
| Alternative ratification | Ratifying conventions in three-fourths of the states |
| Timeframe | No definite time, usually time-consuming |
| Difficulty | Difficult and time-consuming |
| Number of amendments | 27 since 1787 |
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What You'll Learn
Formal amendments are hard to achieve
The United States Constitution was written to endure for ages to come, and the framers made amending the document a difficult task on purpose. Formal amendments are hard to achieve because they require a two-thirds majority vote in both the House of Representatives and the Senate, and then ratification by three-fourths of the state legislatures or conventions. This is a challenging process, and it is rare for an amendment to be passed by both houses of Congress and then ratified by the states.
The process is also time-consuming, giving the public ample time to air their views. The ratification process is important because it is the official way of confirming amendments, and only the most important amendments will go through due to the high threshold for passage. The difficulty of the amendment process was recently highlighted when supporters of congressional term limits and a balanced budget amendment were unsuccessful in getting their desired changes.
Another option to start the amendment process is for two-thirds of state legislatures to ask Congress to call a Constitutional Convention, but this has never happened. Some have argued that the formal amendment process should be made easier, not by lowering standards but by flipping the process on its head and allowing states to propose amendments first. This would make it easier to get good ideas on the table and assess their degree of support.
However, others argue that keeping the process difficult ensures that only amendments with broad support across the country are passed, which is important in a polarized society. Flipping the process would not guarantee that only good amendments would be passed, and retaining the tough voting rules keeps it difficult for bad ideas to get through.
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The process of formal amendments
The process of formally amending the US Constitution is a difficult and time-consuming endeavour. The authority to amend the Constitution is derived from Article V of the Constitution. The Constitution has been amended only 27 times since 1787, including the first 10 amendments, which were adopted in 1791 as the Bill of Rights.
An amendment can be proposed by the US Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, two-thirds of state legislatures can request that Congress call a constitutional convention to propose an amendment. However, no amendments have been proposed by a constitutional convention to date.
Once an amendment is proposed, it is forwarded to the National Archives and Records Administration (NARA), specifically the Office of the Federal Register (OFR), for processing and publication. The OFR adds legislative history notes and publishes the amendment in slip law format. The OFR also sends an information package to the states, which includes formal copies of the joint resolution.
The governors then formally submit the amendment to their state legislatures. When 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 Archivist delegates many duties to the Director of the Federal Register, who examines ratification documents for facial legal sufficiency and an authenticating signature.
A proposed amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50). Once the OFR verifies 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.
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Ratification of formal amendments
The United States Constitution was designed to be a durable document that would "endure for ages to come". As a result, the process of amending it is deliberately difficult and time-consuming. The authority to amend the Constitution of the United States is derived from Article V of the Constitution.
A proposed amendment must be passed by two-thirds of both houses of Congress (the House of Representatives and the Senate), and then ratified by the legislatures of three-fourths of the states (38 out of 50 states). Once Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. 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. The OFR retains these documents until an amendment is adopted or fails, at which point the records are transferred to the National Archives for preservation.
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.
It is worth noting that none of the 27 amendments to the Constitution have been proposed by a constitutional convention. The amendment process is challenging, and not all proposed amendments are successful.
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Formal vs. informal amendments
The United States Constitution was written "to endure for ages to come", and to ensure its longevity, the framers made it difficult to amend. The Constitution has been formally amended only 27 times since it was drafted in 1787, and ratified in 1788. Formal amendments require a two-step process of proposal and ratification, with both steps requiring a supermajority.
An amendment can be proposed by two-thirds of both houses of Congress, or by two-thirds of state legislatures requesting Congress to call a national convention to propose amendments. A convention has never been called. Once proposed, an amendment must be ratified by three-fourths of all state legislatures or by a vote in specially called ratifying conventions in three-fourths of the states.
Informal amendments, on the other hand, are not outlined in the Constitution but have arguably been the most important aspect of the document's evolution. They are the result of the different branches of government applying and interpreting the Constitution in ways that allow it to change and grow as the country changes. For example, the Judiciary Act of 1789, passed by the first elected Congress, created the federal court system. Through executive action, strong presidents can also expand the power of the government.
While the formal amendment process is time-consuming and challenging, it ensures that any changes to the Constitution are widely supported and carefully considered. Informal amendments, meanwhile, allow for more flexibility and adaptability, ensuring that the Constitution can continue to serve its purpose even as society and technology evolve in ways the Founding Fathers could not have foreseen.
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The impact of formal amendments
The United States Constitution was designed to be a durable document, with a difficult amendment process. Formal amendments to the Constitution are challenging to achieve, requiring a two-thirds majority vote in both the House of Representatives and the Senate, or a constitutional convention called for by two-thirds of state legislatures. This ensures that amendments are reserved for significant changes affecting all Americans or securing the rights of citizens.
The process of formal amendments is time-consuming and involves multiple stages. A proposal is brought up in the House to change a specific part of the Constitution directly. Following discussions, the amendment passes through different stages in both houses before ratification. This can be a lengthy process, allowing the public ample time to raise their views.
Once an amendment is passed by Congress, it is forwarded to the National Archives and Records Administration (NARA) for processing and publication. The OFR adds legislative history notes and assembles an information package for the states. The amendment then goes through the ratification process, which can be done through state legislatures or state ratifying conventions, as determined by Congress.
A formal amendment is considered valid and becomes part of the Constitution when ratified by three-fourths of the states (38 out of 50). The OFR drafts a formal proclamation for the Archivist to certify the amendment, which is published in the Federal Register and U.S. Statutes at Large. This certification serves as official notice that the amendment process is complete.
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Frequently asked questions
A formal amendment is a change to the text of the constitution. It occurs when it is deemed important to make amends to the constitution.
A formal amendment is proposed by Congress and agreed upon by two-thirds of its members. It is then ratified and accepted by three-fourths of the state legislatures and convention members.
A member of Congress raises a proposal and presents it to both houses for discussion. The Senate and House of Representatives must agree on a joint declaration before they begin debating the proposed amendment. Two-thirds of Congress must then vote in support of the amendment.
Informal amendments target the interpretations of specific clauses in the constitution. They do not influence the primary constitutional texts but instead amend the laws linked to the constitutional clause.
