Malcolm Rivera
The process of amending the US Constitution is a complex and challenging endeavour, intentionally designed to be difficult by its framers to ensure its longevity. Since its drafting in 1787, there have only been 27 amendments, reflecting the importance of maintaining a stable governing document. The authority to amend the Constitution stems from Article V, which outlines two pathways for proposing amendments: through a two-thirds majority vote in both houses of Congress or by a constitutional convention called for by two-thirds of state legislatures. Once proposed, the amendment must be ratified by three-fourths of state legislatures, ensuring broad support from both federal and state levels. This process is administered by the Archivist of the United States, who, along with the Director of the Federal Register, follows established procedures and customs. The amendment process is a meticulous and time-consuming task, reflecting the significance of altering the foundational document of the nation.
| Characteristics | Values |
|---|---|
| Authority to amend the Constitution | Derived from Article V of the Constitution |
| Amendment proposal | 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 |
| Amendment process | A joint resolution, without the involvement of the President |
| Ratification | Requires approval by three-fourths of the state legislatures (38 out of 50 states) or ratifying conventions in three-fourths of the states |
| Certification | Signed by dignitaries, such as the President, and the Archivist |
| Difficulty | Amending the Constitution is intentionally difficult to ensure stability and widespread support for any changes |
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What You'll Learn
Amendments proposed by Congress
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. The framers of the Constitution intended that it be difficult to change, but not so difficult as to render it an inflexible instrument of government. As such, amending the Constitution is a two-step process: proposals must be properly adopted and ratified before becoming operative.
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. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. Instead, the original document is forwarded directly to the National Archives and Records Administration (NARA)'s 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. The OFR also assembles an information package for the States.
Since 1789, Congress has sent 33 constitutional amendments to the states for ratification. Of these, 27 have been ratified. The first 10 amendments, known as the Bill of Rights, were ratified in 1791. The 1789 Joint Resolution of Congress proposing these amendments is on display in the National Archives' Rotunda for the Charters of Freedom.
Constitutional amendment proposals considered in but not approved by Congress during the 19th century included the Dueling Ban Amendment, which would have prohibited any person involved in a duel from holding federal office. In the 20th century, an amendment abolishing the Senate was proposed by Representative Victor Berger in 1911 due to his belief that it was corrupt and useless to the country. This amendment would have also shielded the unicameral House of Representatives' legislation from presidential veto and judicial review. An anti-miscegenation amendment was proposed by Representative Seaborn Roddenbery, a Southern Democrat from Georgia, in 1912 to forbid interracial marriages nationwide. Similar amendments were proposed by Congressman Andrew King, a Missourian Democrat, in 1871 and by Senator Coleman Blease, a South Carolinian Democrat, in 1928.
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Ratification by state legislatures
The process of amending the United States Constitution is a difficult and time-consuming task. After an amendment is proposed by Congress, it is the responsibility of the Archivist of the United States, who is the head of the National Archives and Records Administration (NARA), to administer the ratification process. The Archivist, along with the Director of the Federal Register, follows the procedures and customs established by the Secretary of State and the Administrator of General Services.
The process of "Ratification by state legislatures" involves the following steps:
Step 1: Proposal Submission to States
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 crucial role in this process by providing informational packages to the States, which include formal "red-line" copies of the joint resolution, copies of the resolution in slip law format, and the statutory procedure for ratification.
Step 2: Formal Submission to State Legislatures
Upon receiving the proposal, the Governors then formally submit the amendment to their respective State legislatures. This step involves presenting the amendment to the State legislators for their review, discussion, and decision-making process.
Step 3: State Legislature Deliberations
The State legislatures carefully consider the proposed amendment. They examine the potential impact of the amendment on their State, discuss its merits and drawbacks, and evaluate its alignment with the interests and values of their State and its citizens. This step involves robust debates, committee hearings, and a thorough analysis of the amendment's implications.
Step 4: Voting on the Amendment
After thorough deliberations, the State legislatures proceed to vote on the proposed amendment. Each State legislature casts its vote, either in favour of or against ratifying the amendment. The specific voting procedures may vary slightly from State to State, but the overall goal remains the same - to reach a decision on whether to adopt the amendment into their State constitution.
Step 5: Notification of Ratification or Rejection
Once a State legislature has voted, it notifies the Archivist of its decision. If the amendment is ratified, the State sends the Archivist an original or certified copy of the State's action. This document is then conveyed to the Director of the Federal Register for further processing. The OFR examines the ratification documents to ensure their legal sufficiency and the presence of authenticating signatures.
Step 6: Verification and Certification
The OFR retains the ratification documents until an amendment is adopted or fails across the required number of States. Once the OFR verifies that it has received authenticated ratification documents from three-fourths of the States (38 out of 50), 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 a crucial step in finalising the amendment process.
The process of "Ratification by state legislatures" is a collaborative effort between the federal government, in the form of the Archivist and NARA, and the individual State legislatures. It ensures that any amendment to the Constitution is carefully considered and approved by a significant majority of States, reflecting a broad consensus across the nation.
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Role of the Archivist of the United States
The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA). The role of the Archivist in amending the Constitution is to manage the constitutional amending process. This includes submitting amendments that have been proposed by Congress to the states for ratification, collecting state ratifications, and certifying amendments as part of the Constitution once three-fourths of the states (38 out of 50) ratify them.
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist 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. The Director of the Federal Register assists the Archivist in this task. The Archivist and the Director follow 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 as an independent agency in 1985.
Once an amendment is proposed by Congress, the original document is forwarded directly to NARA's 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. The OFR also assembles an information package for the states, which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification. The Archivist then submits the proposed amendment to the states for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR.
The Governors then formally submit the amendment to their state legislatures or call for a convention, depending on what Congress has specified. 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 good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records 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. When 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 and serves as official notice to Congress and the Nation that the amendment process has been completed. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President.
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Two-thirds majority in both houses
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. The Constitution has been amended only 27 times since it was drafted in 1787.
The first step in the amendment process is for two-thirds of both houses of Congress to vote in favour of proposing an amendment. This is a significant hurdle, as it requires broad support in both the House of Representatives and the Senate. The amendment is then proposed in the form of a joint resolution, which does not require the signature or approval of the President.
The joint resolution is then forwarded to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR plays a crucial role in the amendment process. It adds legislative history notes to the joint resolution and publishes it in slip law format. Additionally, the OFR assembles an information package for the states, which includes formal "red-line" copies of the joint resolution and copies in slip law format.
The role of the OFR in the amendment process is primarily administrative, and it follows established procedures and customs in carrying out its duties. The final step in the amendment process is ratification by the states. The proposed amendment must be ratified by three-fourths of the state legislatures, which currently equates to 38 out of 50 states. This ensures that any changes to the Constitution have widespread support from both federal and state levels, reflecting the will of the people across the nation.
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The President's non-involvement
The President does not have a constitutionally-defined role in the process of amending the US Constitution. The Constitution outlines that 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 state legislatures. The President is not involved in this process, and the joint resolution proposing an amendment does not require their signature or approval. Instead, the original document is sent directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication.
The role of the President in amending the Constitution has been further clarified by Supreme Court decisions. In the 1920 case Hawke v. Smith, the Court determined that the submission of a constitutional amendment did not require the action of the President. This established the view that the President cannot veto a proposed amendment.
While the President is not directly involved in the amendment process, they may play a ceremonial role in certain instances. For example, President Johnson and President Nixon witnessed the certification of amendments as dignitaries. Additionally, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. An example is President George Washington, who sent the first twelve proposed amendments, including the ten proposals that became the Bill of Rights, to the states for ratification after Congress approved them.
The process of amending the US Constitution is deliberately designed to be difficult and time-consuming. A proposed amendment must be passed by two-thirds of both houses of Congress and then ratified by the legislatures of three-fourths of the states. This ensures that any changes to the Constitution are thoroughly considered and have a broad consensus of support.
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Frequently asked questions
An amendment is proposed.
Either two-thirds of both houses of Congress vote to propose an amendment, or two-thirds of state legislatures can ask Congress to call a national convention to propose amendments.
It is sent to the states for ratification.
Three-fourths of state legislatures, which is a total of 38 out of 50 states, must approve the amendment.
The OFR 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.
