Constitutional Amendments: Creating Legal Change

The process of amending or adopting a constitution is a significant undertaking, with varying levels of difficulty depending on the jurisdiction. In the case of the United States Constitution, amendments are proposed by Congress and require a two-thirds majority vote in both the House of Representatives and the Senate. A proposed amendment then needs to be ratified by three-fourths of the states to become part of the Constitution. This process has been utilised 27 times since the Constitution was drafted in 1787, including the adoption of the Bill of Rights as the first ten amendments in 1791. Other countries, such as Japan, Australia, and India, have their own unique processes and requirements for amending their constitutions, with varying levels of success in terms of the number of amendments passed. The amendment or adoption of a constitution is a complex and time-consuming endeavour, often involving multiple steps and the involvement of various governmental bodies.

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Ratification and adoption

The process of amending or adopting a constitution varies across different jurisdictions. In the United States, the Constitution has been amended 27 times since it was drafted in 1787, with the first 10 amendments being adopted in 1791 as the Bill of Rights. Amendments to the US Constitution can 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 at least two-thirds of the state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. The ratification process is administered by the Archivist of the United States, who delegates many of the duties to the Director of the Federal Register.

In Texas, the state constitution can only be amended through the state legislature, either in a regular or special session. Proposed amendments must be approved by a supermajority of two-thirds of the elected membership of each house and then submitted to the voters in a referendum. To become part of the Texas Constitution, an amendment must be approved by a majority of voters.

In Japan, amendments to the Constitution are proposed by the Diet through a concurring vote of two-thirds or more of all members of each house. These amendments are then submitted to the people for ratification, requiring a majority of all votes cast at a special referendum or election. Once ratified, the amendments are promulgated by the Emperor in the name of the people as an integral part of the Constitution.

In some countries, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament, sometimes requiring a special procedure to bring them into force. The process of amending a constitution is generally designed to strike a balance between pliancy and rigidity, allowing for necessary changes while also maintaining stability and consistency in the fundamental framework of a nation's governance.

The role of the Archivist

The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA). The Archivist is responsible for supervising and directing the National Archives and managing the constitutional amending process. This involves submitting amendments that Congress has proposed to the states for ratification, collecting state ratifications, and certifying amendments as part of the Constitution once three-fourths of the states ratify them. The Archivist is also responsible for the custody of important documents, such as Electoral College documents during United States presidential elections.

When Congress proposes an amendment to the Constitution, the Archivist of the United States is responsible for administering the ratification process. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register, who examines ratification documents for facial legal sufficiency and an authenticating signature. 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.

The Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President. The Archivist does not make any substantive determinations as to the validity of state ratification actions.

In addition to their role in the constitutional amendment process, the Archivist also receives and maintains custody of joint resolutions and acts of Congress signed into law by the President. The National Archives, through its Office of the Federal Register, assigns a public law number to new Acts of Congress, provides for their publication as slip laws, and includes the new statute in the United States Statutes at Large.

State legislatures and conventions

The United States Constitution outlines two methods for proposing amendments. One of these methods involves state legislatures and conventions. This method has never been used, but it is, nonetheless, an important part of the constitutional amendment process.

The first step in this process is for two-thirds of state legislatures (34 out of 50) to call for a convention. This convention, also referred to as an Article V convention, is tasked with proposing amendments to the Constitution. It is important to note that this convention method has not been without opposition. James Madison, for instance, expressed concern about the potential "difficulties and dangers" of a second convention, urging legislators to carefully consider the possible consequences of such an undertaking.

Once the convention has been convened and amendments have been proposed, these amendments must be ratified. Ratification occurs when three-fourths of the states (38 out of 50) approve the proposed amendment. This can be a complex process, as states must submit authenticated ratification documents to the Office of the Federal Register (OFR) for review. The OFR examines these documents for facial legal sufficiency and ensures they include an authenticating signature.

If the OFR receives the required number of ratified documents, it drafts a formal proclamation for the Archivist of the United States to certify that the amendment is valid. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice that the amendment process has been completed, and the amendment becomes part of the Constitution.

While the convention method of proposing amendments has not been utilised, it stands as a testament to the careful consideration and collaborative effort involved in the constitutional amendment process. It provides a mechanism for states to initiate and drive changes to the nation's founding document, ensuring that the Constitution remains adaptable to the evolving needs of the country.

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The amendment process

United States Constitution

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. The process begins with a proposal for an amendment, which can be made in two ways:

• By Congress, with a two-thirds majority vote in both the House of Representatives and the Senate.
• By a constitutional convention called for by two-thirds of the State legislatures. However, in practice, all amendments have come via Congress, and no amendments have been proposed by constitutional convention.

The President does not have a constitutional role in the amendment process, and the joint resolution does not require their signature or approval. Once proposed, the amendment is submitted to the States for ratification. For an amendment to become part of the Constitution, it must be ratified by three-fourths 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. The Archivist's role includes receiving certified copies of State actions and delegating duties to the Director of the Federal Register. When the required number of authenticated ratification documents is reached, the Archivist certifies 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 of the completion of the amendment process.

Other Jurisdictions

In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament. In Japan, amendments are proposed by the Diet and must be submitted to the people for ratification, requiring a majority of all votes cast at a special referendum. The process for amending constitutions can vary significantly, with some countries having more stringent requirements than others.

The Bill of Rights

The process of amending the Constitution is outlined in Article V of the Constitution. Amendments can 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. Once an amendment is proposed, it is sent to the states for ratification. A proposed amendment becomes part of the Constitution when ratified by three-fourths of the states. The Archivist of the United States and the Director of the Federal Register play crucial roles in administering and certifying the ratification process.

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