Amending The Constitution: The Legislative Branch's Role

The process of amending the US Constitution is outlined in Article V of the Constitution. Congress proposes an amendment in the form of a joint resolution, which must be passed by two-thirds of both houses. The amendment is then submitted to the States for their consideration. A proposed amendment becomes part of the Constitution when it is ratified by three-fourths of the States (38 out of 50). The President does not have a constitutional role in the amendment process. The authority to amend the Constitution is derived from Article V, and the process is overseen by the Archivist of the United States, who heads the National Archives and Records Administration (NARA).

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The role of Congress

Congress plays a crucial role in the process of amending the Constitution of the United States, as outlined in Article V of the Constitution. It is responsible for proposing amendments, which must be passed by a two-thirds majority vote in both the Senate and the House of Representatives. This is a significant power vested in Congress, ensuring that any changes to the nation's foundational document must originate from within the legislative branch.

Once an amendment is proposed by Congress, it is forwarded directly to the National Archives and Records Administration (NARA), specifically to the Office of the Federal Register (OFR) for processing and publication. The OFR plays a technical but essential role in the process by adding legislative history notes to the joint resolution and publishing it in slip law format. They also assemble an information package for the states, which includes formal copies of the joint resolution and the statutory procedure for ratification.

While Congress initiates the amendment process, it is important to note that the President does not have a constitutional role in amending the Constitution. The joint resolution does not require the President's signature or approval, further emphasising the legislative branch's role in this process.

In addition to proposing amendments, Congress also holds powers outlined in Article I, Section 8 of the Constitution. These include the power to declare war, raise and support armies, regulate commerce, establish courts, and coin money. These powers grant Congress significant influence over the country's legislative agenda and the implementation of laws.

The President's involvement

The President does not have a constitutional role in the amendment process. 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 (NARA) Office of the Federal Register (OFR) for processing and publication.

However, this does not mean that the President has never been involved in the process of amending the Constitution. 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.

In recent history, the signing of the certification of a new amendment has become a ceremonial function attended by various dignitaries, which may include the President. For example, President Jimmy Carter signed a joint resolution purporting to extend the deadline for ratification of the Equal Rights Amendment, even though he was advised that his signature was unnecessary.

Therefore, while the President does not have a formal role in amending the Constitution, they may play a ceremonial or ministerial role in the process.

The ratification process

The process of amending the US Constitution is described in Article V of the Constitution. This article outlines two methods for proposing amendments, both of which require the involvement of Congress and the states.

The first method, which has been used for every amendment thus far, begins with Congress. A proposed amendment must pass by a two-thirds majority vote in both the Senate and the House of Representatives. The amendment is then sent to the states for ratification, where it must be approved by either the state legislatures or ratifying conventions in three-quarters (38 out of 50) of the states. This process bypasses the President, as Article V does not require constitutional amendments to be presented to the President for approval or veto.

The second method, which has never been used, allows for a more direct role of the states. If two-thirds of the state legislatures request it, Congress must call a constitutional convention to propose amendments. The amendments resulting from this convention must then be ratified by three-quarters of the states, either through their legislatures or state conventions.

Once an amendment has been ratified by the required number of states, it becomes an operative part of the Constitution. The Archivist of the United States, who administers the ratification process, certifies the amendment as valid and publishes this certification in the Federal Register and U.S. Statutes at Large. This serves as official notification to Congress and the nation that the amendment process is complete.

It is important to note that there is no mention of a time limit for ratification in Article V. However, the Supreme Court has affirmed Congress's power to set a "reasonable" time frame for ratification, as seen in the 1921 Dillon v. Gloss decision. Additionally, while the electorate does not vote directly on ratification, the ratification process at the state level involves democratic procedures, reflecting the will of the people.

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The Archivist's duties

The authority to amend the US Constitution is derived from Article V of the Constitution. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. Here is a detailed overview of the Archivist's duties:

• Managing the Constitutional Amending Process: The Archivist manages the process of amending the Constitution. This includes submitting Congress's proposed amendments to the states for ratification and collecting state ratifications. The Archivist follows procedures established by the Secretary of State and the Administrator of General Services, with the Office of the Federal Register (OFR) assisting in this process.
• Submitting Proposed Amendments to States: Once Congress proposes an amendment, the Archivist submits it to the states for their consideration. The Archivist sends a letter of notification to each state governor, including informational material prepared by the OFR, such as legislative history notes and the statutory procedure for ratification.
• Receiving and Verifying State Ratifications: When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action. The Archivist then conveys this to the Director of the Federal Register for examination and custody. The OFR verifies the facial legal sufficiency and the presence of an authenticating signature.
• Certifying Amendments: Once three-fourths of the states (38 out of 50) ratify a proposed amendment, the Archivist certifies that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and the U.S. Statutes at Large, serving as official notice to Congress and the nation. The Archivist's signature on the certification has become a ceremonial function attended by dignitaries.
• Custody of Documents: The Archivist is responsible for maintaining custody of state ratifications of amendments and other important documents. This includes Electoral College documents during presidential elections, such as certificates of ascertainment and certificates of vote produced by electors. The Archivist also receives the original version of all statutes of the United States once they are enacted.
• Delegation of Duties: The Archivist has delegated many ministerial duties to the Director of the Federal Register, including some associated with the ratification process. The actual printing and circulation of documents are handled by the Government Publishing Office.

The legislative branch

To initiate the amendment process, Congress proposes an amendment in the form of a joint resolution. This proposal requires a two-thirds majority vote in both the Senate and the House of Representatives. Once an amendment is passed by Congress, it is then sent to the states for ratification.

After an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA), specifically the Office of the Federal Register (OFR), for processing and publication. The OFR adds legislative history notes and assembles an information package for the states. The amendment is then submitted to the governors of each state, who formally submit it to their state legislatures.

For an amendment to become part of the Constitution, it must be ratified by at least three-fourths of the states (38 out of 50). Once an amendment is ratified by the required number of states, the OFR 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, serving as official notice that the amendment process is complete.

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