The Amendments: Constitutional Convention's Proposed Changes

The United States Constitution can be amended through two methods outlined in Article Five: by a two-thirds vote in both houses of Congress, or by a convention called for by two-thirds of state legislatures. The latter method, also known as an Article V Convention, has never been used despite debates and speculation by scholars. The 1787 Constitutional Convention in Philadelphia addressed the issue of unanimous consent of all 13 states for the national government to take action, which proved unworkable. The convention process was designed to balance flexibility and rigidity in constitutional reform, and the amendment-making power rested with the legislature or specially elected conventions. James Madison and George Mason were key figures in these discussions, with Madison raising questions about the formation and conduct of an Article V convention and Mason arguing against requiring the consent of the National Legislature to protect the people's interests.

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The Article V convention method has never been used

The Article V convention method, one of two methods authorized by Article Five of the United States Constitution for proposing amendments, has never been used. This method involves two-thirds of state legislatures applying to Congress to call a convention for proposing amendments. These amendments would then have to be ratified by three-fourths of the states.

The other method, which has been used 33 times, involves a two-thirds vote in both houses of Congress, with 27 of these proposals being ratified by three-fourths of the states. This method was seen as preferable to the original process, which required the unanimous vote of all thirteen state legislatures. The Federalists believed this created an almost insurmountable barrier to constitutional reform.

The Article V convention method has been the subject of much debate, with scholars questioning whether Congress must call a convention upon the request of two-thirds of the states, and whether states can determine the scope of the convention by applying for a convention on a specific subject or group of subjects. Some scholars argue that Article V permits states to apply for a convention on a particular amendment text, while others argue that the text of the Constitution provides only for a general convention, not limited in scope to a particular matter.

There are several other issues that have been debated by scholars, including how delegates to the convention should be chosen, who should set the rules of procedure, the vote threshold required to propose an amendment, and how voting rights on a proposed amendment should be apportioned among the states. Despite these debates, the Article V convention method has never been utilized to propose amendments to the United States Constitution.

Congress proposes amendments with a two-thirds majority vote

The United States Constitution outlines two methods for proposing amendments. The first method, which has been used 33 times, involves Congress proposing amendments with a two-thirds majority vote in both the House of Representatives and the Senate. This method does not require the involvement of the President or the national legislature.

The second method, which has never been used, is called the Article V Convention method. It involves two-thirds of state legislatures (34 out of 50) applying to Congress to call a convention for proposing amendments. This method was designed to address the issue of requiring unanimous consent from all 13 states for the national government to take action, which was seen as a major obstacle to constitutional reform.

The Article V Convention method has sparked debates among scholars. Some argue that states can determine the scope of the convention by applying for a convention on specific subjects, while others believe the convention is not limited to considering amendments on particular matters. There are also discussions about Congress's control over the convention, including how delegates are chosen, voting thresholds, and voting rights on proposed amendments.

Once Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), administers the ratification process. The Archivist has delegated many duties to the Director of the Federal Register, who follows procedures established by the Secretary of State and the Administrator of General Services. The proposed amendment is then submitted to the states for their consideration.

To become part of the Constitution, the amendment must be ratified by three-fourths of the states (38 out of 50). The Office of the Federal Register (OFR) examines ratification documents and drafts a formal proclamation for the Archivist to certify the amendment's validity. This certification is published in the Federal Register, marking the completion of the amendment process.

State legislatures can request an unlimited convention

The United States Constitution can be amended through two methods, as outlined in Article Five of the United States Constitution. One of these methods involves state legislatures, whereby two-thirds of state legislatures (34 out of 50) can request a convention for proposing amendments. This process has never been used, and instead, all 27 amendments to the Constitution have been proposed by the other method, a two-thirds vote in both houses of Congress, with the President having no constitutional role in the amendment process.

The question of whether state legislatures can request an unlimited convention has been a frequent topic of discussion. The text of Article V refers to "the application of the legislatures" in the singular, suggesting that separate unlimited applications submitted at different times may not be permitted. However, some scholars argue that states can determine the scope of an Article V convention by applying for a convention on specific subjects, with Congress then obliged to call a convention only on those issues. This interpretation suggests that states could request an unlimited convention, as long as it is limited to a particular amendment text or group of subjects.

On the other hand, some scholars argue that the text of the Constitution only provides for a general convention, one not limited in scope to considering amendments on a particular matter. This interpretation suggests that states cannot request an unlimited convention but must specify the subject or subjects they wish to address.

The debate around this question also includes discussions about Congress's control over other aspects of a convention, such as how delegates are chosen, the rules of procedure, the vote threshold for proposing an amendment, and the apportionment of voting rights among the states. These considerations further complicate the question of whether state legislatures can request an unlimited convention and highlight the ongoing discussions about the interpretation and implementation of Article V.

While there has been no definitive determination by the Supreme Court on the state convention amendment method, the case of Coleman v. Miller in 1939 addressed a related issue. The case questioned a state legislature's ability to relinquish endorsement of an amendment and resulted in a decision that some matters related to proposals and ratifications of constitutional amendments are exclusively within Congress's scope. This case highlights the complex legal considerations surrounding the amendment process and the role of state legislatures in requesting conventions.

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The role of the President in the amendment process

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 NARA's Office of the Federal Register (OFR) for processing and publication.

However, some Presidents have played a ministerial role in transmitting Congress's proposed amendments to the states for potential ratification. 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 has become a ceremonial function attended by various dignitaries, including the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment.

Article V establishes an alternative method for amending the Constitution by a convention of the states. On the application of two-thirds of the state legislatures, Congress shall call a convention for proposing amendments, which become law only after ratification by three-fourths of the states. This method has never been used.

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 of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register.

The Archivist certifies the validity of an amendment

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for certifying the validity of an amendment. The Archivist is charged with administering the ratification process under the provisions of 1 U.S.C. 106b.

The Archivist's role in the constitutional amendment process is minimal and entirely ministerial. They do not make any substantive determinations regarding the validity of state ratification actions. Instead, the Archivist examines ratification documents for facial legal sufficiency and authenticating signatures. This process ensures that the amendment meets the legal requirements for ratification and has been properly authorised.

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. This certification confirms that the amendment is valid and has become an official part of the Constitution. The certification is then 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.

While the Archivist's role is primarily procedural, they also have a responsibility to uphold the integrity of the constitutional amendment process. This includes ensuring that any changes to the Constitution are carried out in accordance with the law. In the case of the Equal Rights Amendment (ERA), the Archivist could not certify it as part of the Constitution due to legal, judicial, and procedural decisions. Specifically, the ratification deadline established by Congress for the ERA was deemed valid and enforceable, requiring further action by Congress or the courts to extend or remove the deadline.

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