Eleanor Finch
The process of eliminating a constitutional amendment is a challenging and lengthy endeavour. The US Constitution has only 27 amendments because its creators intended for any changes to be difficult to implement. An amendment can be proposed by any member of the House of Representatives or the Senate, but it must pass a two-thirds supermajority vote in both the House and the Senate to be considered. If approved by Congress, the proposed amendment is sent to the states for ratification, requiring approval from three-quarters of the states to become part of the Constitution. This process can also be initiated by two-thirds of state legislatures calling for a constitutional convention, although this has never occurred. The President does not have a formal role in this process and is not required to sign or approve the amendment. While there are other ways to change the Constitution, such as legislation and court rulings, repealing an amendment is rare and has only occurred once in US history, with the 21st Amendment overturning the 18th Amendment, which prohibited the manufacture and sale of alcohol.
| Characteristics | Values |
|---|---|
| Authority to amend | Derived from Article V of the Constitution |
| Amendment proposal | By two-thirds majority in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures |
| Amendment ratification | Requires three-quarters of the states' approval (38 of 50 states) |
| Amendment certification | Formal proclamation for the Archivist to certify that the amendment is valid |
| Amendment process | Very difficult and time-consuming |
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What You'll Learn
Amendments can be proposed by Congress
The process of amending the Constitution is deliberately difficult and time-consuming. The framers of the Constitution wanted to ensure that it would be a challenging process. As a result, there have only been 27 amendments to the Constitution since it was drafted in 1787.
The legislative process allows Congress to enact laws that expand the Constitution and adapt it to unforeseen future events. This was highlighted by Chief Justice John Marshall in the 1819 Supreme Court case of McCulloch v. Maryland, where he stated that the Constitution was intended "to endure for the ages and to be adapted to the various crises of human affairs."
Once an amendment is proposed by Congress, it is sent to the governors of all 50 states for their approval, called "ratification." An amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 out of 50). The ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist's role is to certify that the amendment is valid and has become part of the Constitution.
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Amendments can be proposed through a constitutional convention
The process of eliminating a constitutional amendment involves proposing a new amendment that repeals the existing one. According to Article V of the US Constitution, there are two methods to propose amendments: through Congress or a constitutional convention.
The constitutional convention method provides an alternative pathway for states to propose amendments, particularly when Congress is unresponsive or reluctant to act. It empowers states to initiate the amendment process and address issues they deem necessary. This mechanism was designed to balance the need for constitutional flexibility and stability, ensuring that amendments can be made without solely relying on the consent of the national legislature.
The process of proposing amendments through a constitutional convention typically begins with state legislatures applying to Congress for a convention. Once Congress receives applications from two-thirds of the states, it is obligated to call for a convention to propose amendments. The convention brings together representatives from the states to discuss, debate, and draft potential amendments.
It is important to note that the proposed amendments do not become part of the Constitution immediately after the convention. They still need to go through the ratification process, which involves approval by three-fourths of the states (38 out of 50). This can be achieved through ratification votes in state legislatures or state conventions, depending on the method specified by Congress. The ratification process is administered by the Archivist of the United States, who works with the Director of the Federal Register to ensure the amendment's validity and compliance with legal requirements. Once the required number of states ratifies the amendment, the Archivist certifies its validity, and it becomes an official part of the Constitution.
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Ratification by three-quarters of the states
The process of repealing a constitutional amendment is a challenging and time-consuming endeavour. The Constitution's Article V outlines that an amendment must be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. This sets the stage for the critical step of ratification by three-quarters of the states, which is an essential requirement for finalising the amendment process.
The process of ratification can vary depending on the circumstances. Typically, the proposed amendment is sent to the governors of all 50 states for their approval, a step known as "ratification." However, in the case of the 21st Amendment, an unusual approach was taken. Due to concerns about the influence of the temperance lobby on state lawmakers, state conventions were called for ratification votes instead of state legislatures. This unique instance demonstrates the flexibility within the ratification process, allowing for adaptations to ensure a fair and unbiased outcome.
The role of the Archivist of the United States and the Director of the Federal Register is also crucial in the ratification process. They are responsible for administering the process under the provisions of 1 U.S.C. 106b. While they do not make substantive determinations on the validity of state ratification actions, their certification of the facial legal sufficiency of ratification documents is considered final and conclusive. Once the required number of authenticated ratification documents is received, the Archivist certifies that the amendment is valid and has become an integral part of the Constitution.
The ratification process for constitutional amendments is designed to be meticulous and arduous, reflecting the framers' intention to prevent frivolous changes to the foundational document of the nation. The requirement of ratification by three-quarters of the states ensures that any amendments to the Constitution are widely accepted and reflect the interests of a substantial majority of the country. This safeguards the integrity and longevity of the Constitution, ensuring that it remains a stable and enduring framework for the nation's governance.
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The President has no constitutional role in the process
The process of amending the US Constitution is intentionally difficult. The Constitution's Article V outlines that an amendment may be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. Notably, the President has no constitutional role in this process.
The President's absence from the amendment process is a significant feature of the US Constitution's amendment procedure. This is due to the fact that the President is not given an official role in amending the Constitution, as outlined in Article V. As such, the President's signature or approval is not required for an amendment resolution to move forward. Instead, the joint resolution is forwarded directly 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. This information package serves as a resource for the states as they consider the proposed amendment.
While the President does not have a constitutional role in the amendment process, they may still express their opinions on proposed amendments. Presidents often attempt to persuade Congress to vote for or against certain amendments. In recent history, the President has also been included in the ceremonial function of signing the certification of a ratified amendment. For example, President Johnson signed the certifications for the 24th and 25th Amendments, and President Nixon witnessed the certification of the 26th Amendment.
In summary, while the President may influence public opinion and participate in ceremonial functions, they have no constitutional role in the process of eliminating or amending the Constitution. The President's signature or approval is not required, and the amendment process is designed to be independent of the President's direct influence.
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The Archivist of the United States administers the ratification process
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process of constitutional amendments. The Archivist's role is to uphold the integrity of the constitutional amendment process and ensure that any changes to the Constitution are carried out in accordance with the law.
Once an amendment is proposed by Congress, the Archivist submits it to the states for their consideration. Specifically, the Archivist sends a letter of notification to each state governor, along with informational material prepared by the Office of the Federal Register (OFR). The governors then formally submit the amendment to their state legislatures or call for a state convention, depending on Congress's specifications.
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 the 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 an amendment is adopted or fails.
A proposed amendment becomes part of the Constitution when ratified by three-fourths of the states (38 out of 50 states). 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.
The current Archivist of the United States is Colleen Joy Shogan, who was nominated by President Joe Biden and confirmed by the Senate in May 2023.
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Frequently asked questions
The process for eliminating a constitutional amendment is the same as the process for amending the constitution. An amendment to repeal the amendment must be proposed and ratified by one of the two methods of regular amendments. An amendment may be proposed by any member of the House of Representatives or the Senate and will be considered under the standard legislative process in the form of a joint resolution. The amendment must be passed by a two-thirds supermajority vote in both the House and the Senate. Once approved by Congress, the proposed amendment is sent to the governors of all 50 states for their approval, called “ratification”. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50).
In the history of the United States, only one constitutional amendment has been repealed. In 1933, the 21st Amendment repealed the 18th Amendment, which had banned the manufacture and sale of alcohol.
The Constitution can also be changed through legislation, presidential actions, federal court rulings, actions of political parties, and simple custom. The Supreme Court, in many of its decisions, effectively modifies the Constitution. Congress has also been given the power to enact laws that expand the Constitution as needed.
