Amending The Constitution: The Legislative Branch's Role

The process of amending the United States Constitution is a difficult and time-consuming endeavour. The authority to amend the Constitution is derived from Article V of the Constitution, which outlines two methods for proposing amendments. The first method involves a two-thirds majority vote in both the House of Representatives and the Senate, while the second method entails a constitutional convention called for by two-thirds of the state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of the states to become part of the Constitution. Since its drafting in 1787, the Constitution has been amended 27 times, including the first ten amendments, known as the Bill of Rights. Any proposed amendment must significantly impact all Americans or secure the rights of citizens to be considered for inclusion in the Constitution.

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The role of Congress in proposing amendments

The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. Amending the Constitution is a difficult and time-consuming process. The Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments adopted four years later as the Bill of Rights.

Congress plays a crucial role in proposing amendments to the Constitution. According to Article V of the Constitution, Congress has the authority to propose amendments whenever two-thirds of both Houses deem it necessary. This process has been followed since the Founding, with Congress proposing thirty-three constitutional amendments, twenty-seven of which have been ratified by the states.

To propose an amendment, Congress must pass it with a two-thirds majority vote in both the House of Representatives and the Senate. This can be done through a joint resolution, which is then forwarded 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 and publishes the resolution in slip law format, providing an information package for the states.

The other method for proposing amendments, which has never been used, is for Congress to call a Constitutional Convention upon the request of two-thirds of the state legislatures. This method has been debated, with some scholars arguing that Congress must call such a convention when the requisite number of state applications is reached, while others question whether it can be limited or avoided.

Once an amendment is proposed by Congress, the Archivist of the United States, who heads the NARA, administers the ratification process. The Archivist submits the proposed amendment to the states by sending a letter of notification to each governor, along with informational material. The governors then formally submit the amendment to their state legislatures or call for a convention, as specified by Congress.

Ratification by state legislatures

The process of amending the United States Constitution is outlined in Article V of the Constitution. It is a challenging and time-consuming process, as Chief Justice John Marshall wrote in the early 1800s, the Constitution was written "to endure for ages to come". Since 1787, when the Constitution was drafted, it has only been amended 27 times.

The first step in the amendment process is for Congress to propose an amendment, which requires a two-thirds majority vote in both the House of Representatives and the Senate. Following this, the amendment is sent to the states for ratification, where it must be ratified by either the state legislatures or state conventions, depending on what Congress has specified. The mode of ratification is determined by Congress.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states, currently 38 out of 50 states. This can be done through the state legislatures or state conventions, and there is no mention of a time limit for ratification in Article V. The states' role in the amendment process is crucial, as they have the power to accept or reject proposed changes to the Constitution.

In the past, some state legislatures have not waited for official notification before taking action on a proposed amendment. When a state ratifies an amendment, it sends an original or certified copy of the state action to the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many duties associated with administering the ratification process to the Director of the Federal Register.

It is important to note that the President does not have a constitutional role in the amendment process, and the joint resolution does not require their signature or approval. Instead, the original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR plays a crucial role in the process by assembling information packages for the states and examining ratification documents for legal sufficiency and authentic signatures.

The Archivist's role in the process

The process of amending the US Constitution is a complex and lengthy one, and the Archivist of the United States plays a crucial role in this process. The Archivist, who heads the National Archives and Records Administration (NARA), is responsible for managing the constitutional amending process and ensuring the integrity of the nation's founding document.

When an amendment is proposed, it must first be passed by two-thirds of both houses of Congress. Then, the proposal is sent to the states for ratification. Once three-fourths of the states (38 out of 50) have ratified the amendment, it becomes part of the Constitution.

The Archivist's role comes into play when a state ratifies a proposed amendment. The state sends an original or certified copy of the ratification to the Archivist, who immediately conveys it to the Director of the Federal Register. The Office of the Federal Register (OFR) then examines the ratification documents to ensure they are legally sufficient and properly authenticated.

If the OFR determines that the documents are in order, the Archivist certifies that the amendment is valid and has become part of the Constitution. This certification is a formal proclamation, 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 Archivist's signature on the certification is a ceremonial function, often attended by dignitaries, including the President.

The Archivist's role in amending the Constitution is primarily administrative and procedural, ensuring the integrity and legality of the process. The 27th Amendment, certified by Archivist Don W. Wilson in 1992, is the only constitutional amendment to have been certified by an Archivist as of 2017. This amendment, which limits Congress's ability to change its pay until the next term, was first proposed in 1789 alongside the Bill of Rights.

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Constitutional conventions

The process of amending the US Constitution is a difficult and time-consuming endeavour. It has been amended only 27 times since it was drafted in 1787, with the first 10 amendments being adopted four years later as the Bill of Rights. The US Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s.

Article V establishes two methods for proposing amendments to the Constitution. The first method is for two-thirds of both Houses of Congress to propose Amendments. The second method is for two-thirds of the state legislatures to apply for Congress to call a Convention for proposing Amendments.

A Constitutional Convention took place in Philadelphia from May 25 to September 1787. While the convention was initially intended to revise the league of states and devise the first system of federal government under the Articles of Confederation, proponents of the Constitutional Convention, including James Madison of Virginia and Alexander Hamilton of New York, sought to create a new frame of government rather than revise the existing one. The convention ultimately debated and ratified the Constitution of the United States, making it one of the most significant events in American history.

The convention was also known as the Federal Convention, the Philadelphia Convention, or the Grand Convention at Philadelphia. Most delegates did not arrive intending to draft a new constitution, but rather to discuss improvements to the existing Articles of Confederation. However, once the convention began, most delegates came to agree that the goal would be a new system of government. Several broad outlines were proposed and debated, notably Madison's Virginia Plan and William Paterson's New Jersey Plan. The Virginia Plan was selected as the basis for the new government, and the delegates quickly reached a consensus on a general blueprint of a federal government with three branches (legislative, executive, and judicial).

The role of the executive was also hotly debated, including the key issues of whether to divide executive power among three people or vest it in a single chief executive (the President); how a president would be elected; the length and number of presidential terms; what offenses should be impeachable; and whether judges should be chosen by the legislature or the executive.

The President's role in the amendment process

The President does not have a constitutional role in the amendment process. The Congress proposes an amendment in the form of a joint resolution, and it does not go to the White House for signature or approval. In the past, some Presidents have played an informal, ministerial role in the amendment process, but the Supreme Court has clarified that the President has no formal constitutional role in that process.

In a brief opinion in the 1798 case Hollingsworth v. Virginia, the Court held that the Eleventh Amendment had been constitutionally adopted. The Supreme Court reporter recorded Justice Samuel Chase’s statement during oral argument that the President has nothing to do with the proposition or adoption of amendments to the Constitution. Later, in the 1920 case Hawke v. Smith, the Supreme Court reiterated that submission of a constitutional amendment did not require the action of the President.

Despite the above, there have been instances of Presidents playing an informal role in the amendment process. For example, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment abolishing slavery, even though his signature was not necessary for the proposal or ratification of the amendment. Similarly, President Jimmy Carter signed a joint resolution purporting to extend 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 an amendment 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 witnessed the certification of the 26th Amendment.

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