Jonah Patel
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. They can also be appended to the constitution as supplemental additions, changing the frame of government without altering the existing text of the document. In the United States, a proposed amendment originates as a special joint resolution of Congress that does not require the President's signature or veto. Amendments to state constitutions can be proposed through a legislative process or a state constitutional convention. For example, Alabama and Alaska require a simple majority vote for voters to approve constitutional amendments, while Colorado and Michigan amendments have been deemed invalid by state and federal courts.
| Characteristics | Values |
|---|---|
| Definition | A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. |
| Types | Amendments can be interwoven into the relevant sections of an existing constitution, directly altering the text, or appended to the constitution as supplemental additions (codicils), thus changing the frame of government without altering the existing text of the document. |
| Proposal | Amendments 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. |
| Ratification | A proposed amendment becomes part of the Constitution as soon as it is ratified by three-quarters of the States (38 out of 50). |
| Court rulings | Court rulings can affect a state constitution's provisions. For example, a federal court may decide that an amendment to a state's constitution must be removed because it conflicts with the U.S. Constitution. |
| State-specific processes | Different states have different processes for amending their constitutions. For example, Alabama and Alaska both offer two mechanisms for amending their constitutions: a legislative process and a state constitutional convention. |
| International variations | The manner in which constitutional amendments are drafted and written down once they become law varies across jurisdictions. For example, in Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament. |
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What You'll Learn
How are state constitutional amendments proposed?
The process of proposing state constitutional amendments varies across different states in the US. Here is an overview of the various mechanisms and pathways for proposing and enacting amendments to state constitutions:
Legislatively Referred Constitutional Amendment
In some states, such as Alabama, Kansas, and Nebraska, the state legislature plays a central role in proposing and enacting constitutional amendments. For instance, in Alabama, a 60% vote is required from both chambers of the state legislature during one legislative session to place a constitutional amendment on the ballot. Similarly, in Nebraska, the legislature can propose legislatively referred constitutional amendments, requiring a 60% vote of the state legislature members. In Kansas, either house of the state legislature can propose an amendment, which requires a two-thirds majority in each chamber for approval. Once approved, the amendment is placed on the statewide ballot during elections.
State Constitutional Convention
Some states, including Alabama, Alaska, and Nebraska, allow for a state constitutional convention to propose amendments. In Alabama and Alaska, a simple majority in each chamber of the legislature is required to send a constitutional convention question to the voters. Any amendments proposed by the convention must be ratified by a simple majority vote of the electorate. In Nebraska, citizens can initiate a constitutional convention question by gathering signatures equal to 10% of the state's qualified electors.
Indirect Initiative Amendments
States like Massachusetts allow for indirect initiative amendments, where citizens can propose amendments through petitions. However, there are restrictions on the types of petitions allowed, excluding those related to religion, the judiciary, or specific political divisions within the state. The state's general court also plays a role in this process, as it can refer an alternative measure to compete with the proposed citizen initiative on the ballot.
Commission-Developed Proposals
In New Mexico, a unique process was established through Amendment 4 in 1996, where a commission is authorised to develop and submit proposals for constitutional amendments to the state legislature. This process demonstrates a more indirect approach to proposing amendments.
It is important to note that the specific requirements and pathways for proposing state constitutional amendments can vary across different states, and each state may have its own unique provisions and procedures.
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What is the process for amending state constitutions?
The process for amending state constitutions varies across different states in the US. While some states allow for a legislative process, others require a state constitutional convention. A few states also allow for commission-referred amendment processes.
Legislative Process
In Alabama, for instance, a 60% vote is required from both chambers of the Alabama State Legislature during one legislative session to place a constitutional amendment on the ballot. This amounts to a minimum of 63 votes in the Alabama House of Representatives and 21 votes in the Alabama State Senate, assuming no vacancies. Amendments do not require the governor's signature to be referred to the ballot.
Similarly, Alaska requires a two-thirds vote in each legislative chamber of the Alaska State Legislature during one legislative session to refer a constitutional amendment to the ballot. That amounts to a minimum of 27 votes in the Alaska House of Representatives and 14 votes in the Alaska State Senate, assuming no vacancies.
State Constitutional Convention
Some states, like Alabama and Alaska, provide for a state constitutional convention to propose amendments. Alabama and Alaska require a simple majority vote (50% plus 1) for voters to approve constitutional amendments. A simple majority in each chamber during one legislative session is required to send a constitutional convention question to voters.
Commission-Referred Amendment Process
Florida has a commission-referred amendment process, with the Florida Taxation and Budget Reform Commission having the authority to propose amendments to the Florida Constitution. This group convenes once every 20 years. New Mexico also has a similar process, where a commission can develop and submit proposals for constitutional amendments to the state legislature.
Court Rulings
Court rulings can also impact state constitutions. Federal courts can declare an amendment to a state's constitution null and void if it conflicts with the US Constitution. State courts can also alter state constitutions by ruling that a voter-approved amendment conflicts with the rest of the constitution or is otherwise unacceptable.
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What are the requirements for ratification?
The requirements for the ratification of a state constitutional amendment are outlined in Article V of the United States Constitution. The process of amending the Constitution is deliberately designed to be difficult and time-consuming to ensure any changes have broad support and are not made lightly.
Firstly, a proposed amendment must be passed by two-thirds of both houses of Congress (the House of Representatives and the Senate). This phase requires bipartisan backing and highlights the necessity of widespread agreement. Once an amendment has been approved by Congress, it is sent to the states for ratification.
There are two methods of ratifying amendments: the first and most common method is for the legislatures of three-fourths of the states (38 out of 50) to ratify an amendment. The second method, which has never been utilised, is for conventions in three-fourths of the states to ratify an amendment.
In the first method, 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 Office of the Federal Register (OFR) examines ratification documents for legal sufficiency and an authenticating signature. If the documents are in order, the Director of the Federal Register acknowledges receipt and maintains custody of them. 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.
In the second method, two-thirds of the state legislatures must first call for a constitutional convention. Then, the amendment must be ratified by three-fourths of the states through a vote of either the state legislature or a state convention.
It is important to note that there is no mention of a time limit for the ratification of a constitutional amendment in Article V. However, beginning with the 20th Amendment, Congress has attached a time limit to the ratification of all proposed amendments.
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What role does the President play?
A constitutional amendment is a modification of the constitution of a polity, organization, or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. They can also be appended to the constitution as supplemental additions (codicils), changing the frame of government without altering the existing text of the document.
In the United States, the President does not have a constitutional role in the amendment process. The US Constitution provides that an amendment may be proposed either 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. The President does not sign or approve the joint resolution for a proposed amendment, and cannot veto it. 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.
However, the President may play an informal, ministerial role in the amendment process. For example, President George Washington sent the first twelve proposed amendments, including the ten proposals that later became the Bill of Rights, to the states for ratification after Congress approved them. In recent history, the signing of the certification of a new amendment has become a ceremonial function attended by various dignitaries, which may include the President.
Therefore, while the President does not have a formal role in proposing or adopting amendments to the US Constitution, they may play a minor role in transmitting Congress's proposed amendments to the states for potential ratification and in ceremonial functions after an amendment has been certified.
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How are amendments recorded?
The process of recording amendments differs from one jurisdiction to another. In the United States, a proposed amendment becomes an official Article of the Constitution once it is ratified by three-quarters of the States (38 out of 50). The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. 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 (OFR). The OFR examines these documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them. These documents are retained until an amendment is adopted or fails, after which they 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.
In contrast, countries like Ireland, Estonia, and Australia treat constitutional amendments as acts of parliament. In Ireland and Australia, amendments are drafted as Acts of Parliament but require approval through a referendum to become law. Australia and Ireland also require amendments to be passed by the legislature before being submitted to the people. Switzerland has a similar procedure to Australia. In South Africa, a bill amending the Constitution must be introduced in the National Assembly and published for public comment at least 30 days before being introduced.
At the state level in the United States, there are multiple paths for amending constitutions, and they are amended much more frequently than the federal Constitution. State legislatures generate more than 80% of constitutional amendments that are considered and approved annually, with varying requirements for legislatures to craft amendments. Some states require amendments to secure the backing of a majority of legislators, while others require supermajority legislative support. Seventeen states allow for amendments via citizen-initiative processes, and eighteen states have a process for initiated constitutional amendments.
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Frequently asked questions
A constitutional amendment is a modification of the constitution of a state. Amendments are woven into the existing constitution, directly altering the text, or they can be appended as supplemental additions.
The process varies from state to state. For example, in Alabama, there are two mechanisms for amending the state's constitution: a legislative process and a state constitutional convention. Alabama requires a simple majority vote (50% plus 1) for voters to approve constitutional amendments. In Alaska, a two-thirds vote in each legislative chamber is required to refer a constitutional amendment to the ballot.
In 1996, New Mexico created a process where a commission can develop and submit proposals for constitutional amendments to the state legislature. This was called Amendment 4.
The Michigan Proposal 2, Affirmative Action Initiative from 2006 was declared invalid by the United States Court of Appeals for the 6th Circuit in 2011.
