Congress's Power: Proposing Constitutional Amendments

Article V of the US Constitution establishes the authority to amend it. 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 state legislatures. Congress has proposed 33 amendments, all with the requisite majority, and none by constitutional convention. A proposed amendment becomes part of the Constitution when ratified by three-quarters of the states. The process is administered by the Archivist of the United States, who delegates duties to the Director of the Federal Register.

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Article V of the US Constitution outlines the authority to amend

The process of proposing an amendment through Congress begins with a proposal from the House of Representatives, which is then forwarded directly 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 to the joint resolution and publishes it in slip law format, as well as assembling an information package for the states.

Once an amendment is proposed by Congress or a constitutional convention, it must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. The states can ratify through their legislatures or conventions. The OFR examines ratification documents for legal sufficiency and an authenticating signature. If the documents are in order, the Director of the Federal Register acknowledges receipt and maintains custody of them until the amendment is adopted or fails.

The Archivist of the United States, who heads NARA, is responsible for administering the ratification process. However, they do not make substantive determinations on the validity of state ratification actions. Once an amendment is ratified, the Archivist certifies its validity, and this certification is published in the Federal Register as official notice to Congress and the nation.

Article V also includes provisions ensuring that no amendment made before 1808 could affect certain clauses in the Ninth Section of the First Article, and that no state could be deprived of its equal suffrage in the Senate without its consent. These specific provisions reflect the concerns of the Framers regarding the amendment process and the balance of power between the states and Congress.

Two-thirds majority in the House of Representatives and Senate is required

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. This article establishes two methods for proposing amendments. One of these methods requires a two-thirds majority vote in both the House of Representatives and the Senate. This means that at least two-thirds of the members present in each chamber must vote in favour of the proposed amendment. It is important to note that this is not a vote of all members of Congress, but only those present during the vote, assuming a quorum is met.

The process of proposing an amendment begins with Congress, which introduces a joint resolution. This joint resolution does not require the signature or approval of the President, as they do not have a constitutional role in the amendment process. Instead, the original document is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.

Once the proposed amendment is introduced, it must be ratified by three-fourths of the states (38 out of 50 states) to become part of the Constitution. This can be achieved through ratification by state legislatures or by conventions in three-fourths of the states.

It is worth mentioning that, historically, none of the amendments to the Constitution have been proposed by a constitutional convention. Instead, Congress has proposed thirty-three amendments, which were then sent to the states for potential ratification. Out of these thirty-three proposals, twenty-seven were ratified by the states.

The President has no constitutional role in the amendment process

The process of proposing an amendment does not require the President's signature or approval. 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 then 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 proposal. This package is sent to the States, which then take action on the proposed amendment.

While the President has no formal constitutional role in the amendment process, there have been instances where Presidents have played an informal, ministerial role. For example, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment, which abolished slavery. President Jimmy Carter also signed a joint resolution extending the deadline for ratification of the Equal Rights Amendment, despite being advised that his signature was unnecessary.

In recent history, the signing of the certification of a new amendment has become a ceremonial function attended by various dignitaries, including the President. For example, President Johnson signed the certifications for the 24th and 25th Amendments, and President Nixon witnessed the certification of the 26th Amendment. However, these signatures are not legally required for the ratification of amendments.

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The Archivist of the US administers the ratification process

The Archivist of the United States is responsible for administering the ratification process of constitutional amendments. The Archivist is appointed by the President with the advice and consent of the Senate. The current Archivist of the United States is Colleen Joy Shogan, who was nominated by President Joe Biden and sworn in by the Senate in May 2023.

Once Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), 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 Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties until NARA assumed responsibility in 1985.

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with informational material prepared by the OFR. 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.

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. 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. The Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.

In addition to administering the ratification process, the Archivist of the United States has other important duties, such as safeguarding and making available for study all the permanently valuable records of the federal government, including the original Declaration of Independence, Constitution, and Bill of Rights. The Archivist also has duties concerning the custody of Electoral College documents in United States presidential elections.

Congress may set a reasonable time limit for an amendment's ratification

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. This article establishes two methods for proposing amendments: the first method requires both the House and the Senate to propose a constitutional amendment by a two-thirds majority vote in both the House of Representatives and the Senate. Congress has followed this procedure to propose thirty-three constitutional amendments, which were sent to the states for potential ratification. The second method, which has never been used, involves a constitutional convention called for by two-thirds of the state legislatures.

Once an amendment is proposed, Congress may specify whether it will be submitted to state legislatures or a state convention for ratification. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-quarters of the states (38 out of 50 states). The ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register.

In the past, some states have not waited for official notice before taking action on a proposed amendment. 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 Office of the Federal Register (OFR) examines ratification documents for legal sufficiency and authenticity. If the documents are in order, the Director acknowledges receipt and maintains custody of them until an amendment is adopted or fails, at which point the records are transferred to the National Archives for preservation.

While Congress has the authority to propose constitutional amendments and specify the mode of ratification, it does not have the power to set a time limit for ratification. The Constitution does not specify a time frame for the ratification process, and it is up to the states to take action on a proposed amendment. However, Congress can influence the timeline by proposing a reasonable deadline for ratification, which the states may consider when taking action on an amendment.

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