Eleanor Finch
The process of amending a constitution varies across jurisdictions. In the United States, a proposed amendment becomes an official Article of the Constitution once it is ratified by three-fourths of the States (38 out of 50). The Article typically comes into force at this time, although there may be instances where a delay is imposed. The certification of an amendment is a ceremonial function attended by dignitaries and is published in the Federal Register and U.S. Statutes at Large. 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. In other jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments may originate as bills and become law through acts of parliament or referendums.
| Characteristics | Values |
|---|---|
| Number of amendments to the US Constitution | 27 |
| Number of proposed amendments to the US Constitution | 11,000+ |
| First 10 amendments | Known as the Bill of Rights, ratified in 1791 |
| Number of amendments to the Turkish constitution | 21 |
| Number of amendments to state constitutions | 7,000 |
| Frequency of amendments to state constitutions | Alabama, Louisiana, South Carolina, Texas, and California: 3-4 times/year; Tennessee, Kentucky, Indiana, Illinois, and Vermont: once every 3-4 years |
| Amendment process | 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 |
| Amendment ratification | Ratified by three-fourths of the states (38 out of 50) |
| Amendment certification | Certified by an official of the federal government, such as the Archivist of the United States |
| Amendment form | Revisions to previous text or appended to the end of the main text as special articles of amendment |
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What You'll Learn
Amendments proposed by Congress
The process of amending the US Constitution is a two-step process. Proposals to amend it must be properly adopted and ratified before becoming operative. Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Congress proposes an amendment in the form of a joint resolution. Since 1789, Congress has sent 33 constitutional amendments to the states for ratification, of which 27 have been ratified.
Congress has proposed various amendments over the years, some of which have been approved and others that have not. For example, in 1789, Congress proposed amendments that were ratified in 1791, including the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and the preservation of the right to a trial by jury in certain cases.
On the other hand, some amendments proposed by Congress were not approved. For instance, in 1838, the Dueling Ban Amendment was proposed after Representative William Graves killed Representative Jonathan Cilley in a duel. It aimed to prohibit anyone involved in a duel from holding federal office but was not approved by Congress. Similarly, in 1911, Representative Victor Berger proposed an amendment to abolish the Senate due to his belief that it was corrupt and useless, which was also not approved.
Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes, publishes the joint resolution, and assembles an information package for the states. The amendment is then submitted to the states for ratification, with Congress deciding whether ratification will be by state legislatures or state ratifying conventions. An amendment becomes operative once ratified by three-fourths of the states (38 out of 50). The Archivist of the United States certifies that the amendment is valid and has become part of the Constitution, officially notifying Congress and the nation.
The First Amendments: Constitutional Drafting History
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Amendments by constitutional convention
The process of amending the Constitution of the United States is outlined in Article V of the Constitution. One of the two methods for proposing amendments is through a constitutional convention, also known as an Article V Convention. This method has never been used, with all 27 amendments to the Constitution proposed by Congress.
A constitutional convention is called when two-thirds of state legislatures (34 out of 50) request it. The convention proposes amendments, which become law only after ratification by three-fourths of the states (38 out of 50). This ratification can be done by the state legislatures or by conventions in three-fourths of the states, as specified by Congress.
The convention method for proposing amendments has been the subject of much debate among scholars. Some argue that states can determine the scope of an Article V convention by applying for a convention on specific subjects or amendment texts. Others contend that the Constitution only provides for a general convention, not limited to particular issues.
Despite never being used, some scholars speculate that states could pressure Congress to propose an amendment on a specific matter by requesting an Article V convention. However, concerns have been raised about the potential consequences of such a convention, as expressed by James Madison, the "Father of the Constitution."
In summary, while the constitutional convention method for proposing amendments exists, it has never been utilised. The process involves a request from a significant portion of state legislatures, followed by ratification by an even larger majority of states. The potential impact of this method on the Constitution continues to be a subject of scholarly discussion and analysis.
The Evolution of Constitutional Amendments: A Historical Perspective
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State constitutional amendments
The process of amending a state constitution varies across different states in the US. State constitutions are amended more frequently than the US Constitution, with the 50 state constitutions having been amended around 7,000 times. Some states, such as Alabama, Louisiana, South Carolina, Texas, and California, amend their constitutions more than three to four times per year on average. On the other hand, states like Tennessee, Kentucky, Indiana, Illinois, and Vermont amend their constitutions only once every three to four years, on average.
There are multiple methods for amending state constitutions, including amendments crafted by legislatures, citizens, conventions, and commissions. State legislatures generate more than 80% of the constitutional amendments that are considered and approved annually across the country. The requirements for legislatures to craft amendments vary by state, with some requiring the backing of a majority of legislators and others demanding supermajority legislative support. A few states allow bypassing the legislature and calling a convention through the initiative process. Additionally, some states mandate that referendums on calling a convention appear on the ballot automatically at periodic intervals, ranging from 10 to 20 years.
The easiest path to legislative approval of amendments exists in 10 states, where approval by a majority vote in a single session is sufficient. In some jurisdictions, constitutional amendments originate as bills and become laws through acts of parliament. For example, in Ireland and Australia, amendments are drafted as Acts of Parliament but require approval in a referendum to become law. In contrast, a proposed amendment to the US Constitution originates as a joint resolution of Congress, which the President cannot veto.
Once an amendment to a state constitution is ratified, it becomes an official part of that constitution. In most jurisdictions, amendments take the form of revisions to the previous text, which may involve deleting portions of the original text or inserting new articles among existing ones. Alternatively, amendments can be appended to the end of the main text as special articles of amendment, leaving the original text intact. While the wording of the original text remains unaltered in this latter approach, the doctrine of implied repeal applies, meaning that in the event of conflict, an article of amendment generally takes precedence over the provisions of the original text or earlier amendments.
Missouri's Constitutional Amendments: When Do They Get a Vote?
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Amendments as acts of parliament
Amendments are an important part of the law-making process in many jurisdictions. In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament. This may be the case even if a special procedure is required to bring an amendment into force. For example, in Ireland and Australia, amendments are drafted in the form of Acts of Parliament, but they cannot become law until they have been approved in a referendum.
Amendments are proposals to change, remove, or add to the existing wording of bills to modify their effect. They allow for bills to be changed as they progress through parliament. Amendments can be introduced in either the Senate or the House of Representatives and must be agreed upon by both. Any member of parliament can suggest an amendment to a bill, which is called "moving an amendment". An amendment must be submitted in writing to the Clerk of the Senate or House, who then distributes copies so that everyone can read and decide if they agree or disagree with it. Members of parliament can then debate and vote for or against the amendment.
In most jurisdictions, amendments to a constitution take the form of revisions to the previous text. Thus, once an amendment has become law, portions of the original text may be deleted or new articles may be inserted among existing ones. The second, less common method is for amendments to be appended to the end of the main text in the form of special articles of amendment, leaving the body of the original text intact. Although the wording of the original text is not altered, the doctrine of implied repeal applies. In other words, in the event of conflict, an article of amendment will usually take precedence over the provisions of the original text or of an earlier amendment.
To change an Act, an amendment bill must be introduced, debated, and voted on by Parliament in the same way that other bills are decided. If the amendment bill is passed, the title of the original Act then includes the word "amendment". For example, the "Marriage Amendment (Definition and Religious Freedoms) Act 2017". Any piece of parliamentary legislation can be designated as "constitutional law", i.e., as a part of the constitution if the required supermajority and other formalities for an amendment are met. An amendment may take the form of a change to the centerpiece of the constitution, a change to another constitutional act, a new constitutional act, or a section of constitutional law in a non-constitutional act.
Massachusetts' Historic Amendment: Church and State Separation
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Ratification and certification
The process of amending the Constitution of the United States is outlined in Article V of the Constitution. An amendment 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 National Archives and Records Administration (NARA) for processing and publication. The NARA's Office of the Federal Register (OFR) adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also creates an information package for the States, which includes formal copies of the joint resolution.
After an amendment is proposed and processed, it must be ratified by three-fourths of the States (38 out of 50) to become part of the Constitution. This can be done through each State's legislature or through a convention, depending on what Congress has specified. Once a State ratifies the proposed amendment, it sends an original or certified copy of the State action to the Archivist of the United States, who heads the NARA. The Archivist then delegates the ministerial duties to the Director of the Federal Register.
The OFR examines the ratification 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.
When the OFR verifies the required number of authenticated ratification documents, 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 to Congress and the Nation that the amendment process is complete. The certification document typically includes a list of the States that ratified the amendment, and while it is used for record-keeping purposes, it does not have any legal effect on the amendment itself.
The authority for this process comes from 1 U.S.C. 106b, and the procedures followed by the Archivist and the Director of the Federal Register are based on customs established by the Secretary of State and the Administrator of General Services, who performed these duties in the past.
It is worth noting that State constitutions are much easier to amend compared to the federal Constitution. States provide multiple paths for amending their constitutions, and they vary in their requirements for legislative support. Some States require majority support, while others need supermajority backing. Additionally, some States allow for amendments to be approved by a majority vote in a single legislative session, making the process more streamlined.
Third Amendment: Understanding the Constitution's Amendment
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Frequently asked questions
The US Constitution can be amended 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. Once an amendment is ratified by three-fourths of the States (38 out of 50), it becomes an official part of the Constitution.
The US Constitution has been amended 27 times since 1791. Over 11,000 amendments have been proposed.
The President does not have a constitutional role in the amendment process, and any proposed amendment does not require their signature or approval.
State constitutions are amended more frequently than the federal Constitution. State legislatures generate more than 80% of constitutional amendments, and some states require majority or supermajority legislative support. Amendments can also be crafted by citizens, conventions, and commissions.
In some countries, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament or referendums. International treaties can also be enacted as constitutional law, as with the European Convention of Human Rights.
