Amending The Constitution: The Power To Change

The United States Constitution has been amended 27 times since it was first drafted in 1787. The authority to amend the Constitution is derived from Article V of the Constitution. The process of amending the Constitution is challenging and time-consuming, as it was designed to be a difficult task. 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 ratified by three-fourths of the states, it becomes part of the Constitution.

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The US Amendment Process

The US Constitution grants the authority to amend it in Article V. The process of amending the Constitution is intentionally difficult. Since it was first drafted in 1787, there have only been 27 amendments, the first 10 of which were ratified in 1791 and are known as the Bill of Rights.

There are two ways to propose an amendment:

• A two-thirds majority vote in both the House of Representatives and the Senate (Congress).
• A constitutional convention called for by two-thirds of state legislatures.

However, all 27 amendments have been proposed by Congress. The President does not have a constitutional role in the process. Once an amendment is proposed, it must be ratified by three-quarters of the States (38 out of 50). The Archivist of the United States is responsible for administering the ratification process, although they do not make any substantive determinations as to the validity of State ratification actions. Once an amendment is ratified, the Archivist certifies it, and this certification is published in the Federal Register and U.S. Statutes at Large. This serves as official notice that the amendment process is complete.

In recent history, the certification has been signed by various dignitaries, including the President.

Ratification

The process of amending the United States Constitution is outlined in Article V of the Constitution. This process is deliberately difficult, as Chief Justice John Marshall wrote in the early 1800s that the Constitution was "to endure for ages to come". The Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments, known as the Bill of Rights, which were ratified in 1791.

A proposed amendment must be passed by 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. However, none of the 27 amendments to the Constitution have been proposed by constitutional convention. Once an amendment is proposed by Congress, it is 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 and publishes the joint resolution in slip law format, as well as assembling an information package for the states.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50). 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 does not make any substantive determinations as to the validity of state ratification actions, but their certification of the facial legal sufficiency of ratification documents is final and conclusive. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including, on some occasions, the President.

The process of amending state constitutions varies across the United States. For example, there are three methods for proposing an amendment to the California State Constitution: by the legislature, by constitutional convention, or by voter initiative. A proposed amendment must be approved by a majority of voters, with some methods requiring a supermajority of two-thirds.

State vs Federal Amendments

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. The Constitution can be amended either by 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. However, none of the 27 amendments to the Constitution have been proposed by constitutional convention.

State constitutions, on the other hand, are much easier to modify. The current constitutions of the 50 states have been amended around 7,000 times. States vary in how often they amend their constitutions. For example, the constitutions of Alabama, Louisiana, South Carolina, Texas, and California are amended more than three to four times per year, on average. On the other hand, the Tennessee, Kentucky, Indiana, Illinois, and Vermont constitutions are amended only once every three to four years on average.

There are multiple paths to amending state constitutions, including amendments crafted by legislatures, citizens, conventions, and commissions. State legislatures generate more than 80% of constitutional amendments that are considered and approved annually. States vary in their requirements for legislatures to craft amendments. Some require that amendments secure the backing of a majority of legislators, while others require supermajority legislative support. The easiest route to legislative approval of amendments is to permit approval by a majority vote in a single session, which is available in 10 states. Another 25 states require a supermajority legislative vote in a single session, with 9 requiring a three-fifths vote and 16 requiring a two-thirds vote. 11 states require approval by a majority vote in two consecutive legislative sessions, with 4 of these states providing an alternative path by allowing approval by a supermajority vote in a single session. Finally, 4 states require a supermajority vote in one or more legislative chambers and legislative approval in consecutive sessions. Every state but Delaware requires legislature-crafted amendments to be approved by voters. Amendments in Delaware take effect once they are approved by a two-thirds legislative vote in consecutive sessions.

The Tenth Amendment to the Constitution, ratified on December 15, 1791, clarifies the powers of the states versus the federal government. It states that any powers not specifically given to the federal government nor prohibited by it to the states are reserved for the states or the people. The Tenth Amendment has been interpreted as a limitation on the federal government, specifying that it is largely limited and enumerated. This amendment has been invoked in several Supreme Court decisions to determine if the federal government has overstepped its authority.

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International Examples

Bulgaria

Bulgaria's constitution outlines a special amendment procedure (Articles 157–163) that is the only way to revise the country's international borders, change the form of government, change how the Constitution and international treaties are applied, or suspend citizens' rights. When such an amendment is needed, a Great National Assembly is elected, consisting of 400 deputies, with 200 elected by proportional vote and 200 elected by the first-past-the-post method. The amendments are then passed by a two-thirds majority in three successive readings.

Czech Republic

In the Czech Republic, a constitutional act can only be passed with the agreement of three-fifths of all Deputies and Senators present in both houses of Parliament. This type of legislation does not require the signature of the President to become law.

Japan

Japan's constitution, implemented after World War II, includes a special provision, "Article 9: Renunciation of War," which reflects the country's commitment to international peace and the renunciation of war as a sovereign right.

European Union

The Treaties of the European Union are international treaties between member states that outline the constitutional basis of the EU. Prior to the Treaty of Lisbon in 2009, the only procedure for revising these treaties was through an intergovernmental conference. Now, when amendments relate to EU policies and internal actions, the European Council adopts a decision after consulting relevant bodies, and the new treaty provisions enter into force after ratification by all EU countries according to their constitutional procedures.

Albania

The Constitution of Albania, in Article 177 ("Amending the Constitution"), outlines the process for amending the Constitution: an initiative must be taken by at least one-fifth of the members of the Assembly, and a proposed amendment must be approved by at least two-thirds of all members. Amendments cannot be made when extraordinary measures are in effect.

Austria

The Constitution of Austria is known for its liberal approach to constitutional amendments. Any parliamentary legislation can become part of the constitution if it meets the required supermajority and other formalities. This has led to a large number of constitutional provisions spread throughout the legal system, sometimes referred to as "constitutional garbage."

The First Amendment

In the original draft of the Bill of Rights, what is now the First Amendment occupied the third place. The first two articles were not ratified by the states, so the article on disestablishment and free speech became the first. James Madison initially proposed twenty amendments to the Constitution, and his draft of the First Amendment read: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."

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