Amending The Constitution: Which Branch Proposes Changes?

The United States Constitution outlines two methods for proposing amendments. The first method involves Congress proposing an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. 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, it is sent to the states for ratification, becoming part of the Constitution when ratified by three-fourths 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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Amendments proposed by Congress

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. 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 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. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication.

At least 11,000 proposals to amend the Constitution have been introduced in Congress, but only 27 have been ratified. Since 1789, Congress has sent 33 constitutional amendments to the states for ratification. The first 10 amendments, known as the Bill of Rights, were ratified in 1791. Some examples of amendments proposed by Congress include the following:

• An amendment abolishing the Senate was proposed by Representative Victor Berger in 1911 due to his belief that it was corrupt and useless to the country.
• An anti-miscegenation amendment was proposed by Representative Seaborn Roddenbery, a Southern Democrat from Georgia, in 1912, to forbid interracial marriages nationwide.
• An anti-polygamy amendment was proposed by Representative Frederick Gillett, a Massachusetts Republican, on January 24, 1914, and supported by former U.S. Senator from Utah, Frank J. Cannon, and by the National Reform Association.
• The Ludlow Amendment was proposed by Representative Louis Ludlow in 1937, which would have heavily reduced America's ability to be involved in war, requiring a national referendum to confirm any declaration of war.
• The Dueling Ban Amendment, proposed in 1838 after Representative William Graves killed another Representative, Jonathan Cilley, in a duel, would have prohibited any person involved in a duel from holding federal office.

Ratification by three-fourths of the States

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. After an amendment is proposed, 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 the state legislatures or state ratifying conventions, with Congress determining which method the states must follow.

Once an amendment is proposed, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist submits the proposed amendment to the States for their consideration, sending a letter of notification to each Governor along with informational material prepared by NARA's Office of the Federal Register (OFR). The Governors then formally submit the amendment to their State legislatures or call for a convention, depending on Congress's specifications.

The OFR plays a crucial role in the process by examining the ratification documents for legal sufficiency and authenticating signatures. If the documents are in order, the OFR 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.

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 has been completed. This certification ceremony has, in recent times, been attended by various dignitaries, including the President. While the President does not have a constitutional role in the amendment process, their presence as a witness underscores the significance of the occasion.

In conclusion, the ratification by three-fourths of the States is a critical step in amending the Constitution of the United States. It involves the collaboration of federal and state authorities, with the Archivist of the United States and the OFR playing pivotal roles in ensuring the amendment's validity and facilitating the ratification process. The final certification serves as a formal recognition of the amendment's integration into the Constitution.

Role of the Archivist

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After an amendment is proposed by Congress, 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 duties associated with this function to the Director of the Federal Register.

The Archivist's role in the constitutional amendment process includes submitting proposed amendments to the states for ratification. Once a proposed amendment is ratified by three-fourths of the states (38 out of 50 states), it becomes part of the Constitution. The Archivist then 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 Archivist's certification of an amendment's validity is based on the facial legal sufficiency of ratification documents submitted by the states. The Archivist does not make any substantive determinations regarding the validity of state ratification actions. However, their certification is considered final and conclusive.

In 1992, Archivist Don W. Wilson became the first and, so far, only Archivist to certify a constitutional amendment. He certified the 27th Amendment, which was first proposed in 1789 and ratified in 1992, limiting Congress's ability to change its pay until the next term.

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The President's role

The President does not have a constitutional role in the amendment process. The US Constitution does not outline a role for the President in amending the Constitution. The joint resolution proposing an amendment does not go to the White House for signature or approval. Instead, the original document is forwarded directly to the National Archives and Records Administration's Office of the Federal Register (OFR) for processing and publication.

The President cannot veto a proposed amendment. In the 1920 case Hawke v. Smith, the Supreme Court characterised the Court's decision in Hollingsworth v. Virginia as having "settled" that "submission of a constitutional amendment did not require the action of the President". In Hollingsworth v. Virginia, the Court rejected a challenge to the Eleventh Amendment based on the argument that it had not been submitted to the President for approval or veto. Justice Chase opined that " [t]he negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution".

Despite being advised that his signature was unnecessary, President Jimmy Carter signed a joint resolution purporting to extend the deadline for ratification of the Equal Rights Amendment. However, this appears to be an exception to the general rule that the President does not have a role in the amendment process.

While the President does not have a formal role in proposing amendments, 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.

Amendments by constitutional convention called by Congress on the request of two-thirds of the States

The United States Constitution provides for two methods to propose amendments. One of these methods is for Congress to propose amendments with a two-thirds majority vote in both the House of Representatives and the Senate. The other method is for Congress to call a constitutional convention at the request of two-thirds of the state legislatures (34 out of 50). This second method has never been used.

Article V of the Constitution establishes these two methods for proposing amendments. It states that "the Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments".

The process of amending the Constitution through a convention called by Congress at the request of two-thirds of the states is as follows:

First, two-thirds of the state legislatures (34 out of 50) must apply to Congress to call for a convention to propose amendments. Then, Congress calls for a constitutional convention. Once the convention has proposed amendments, they are sent to the states for ratification. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50). The states can ratify amendments through their legislatures or through state conventions, with the method of ratification chosen by Congress.

The process of amending the Constitution through a convention has never been used, and there are some debates and concerns surrounding it. One debate is whether Congress must call a convention upon receiving the requisite number of state applications. There are also concerns about the lack of detail in Article V regarding how the convention amendment process would work.

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