Amending The Constitution: The Ratification Process

The process of amending the US Constitution is outlined in Article V of the Constitution. This article details two methods for proposing amendments: one is for Congress to propose an amendment with a two-thirds majority vote in both the House and the Senate, and the other is for two-thirds of state legislatures to request a constitutional convention to propose amendments. In both cases, three-quarters of the states must ratify the amendment for it to become part of the Constitution. The process is managed by the Archivist of the United States, who is responsible for administering the ratification process, and the Director of the Federal Register, who examines ratification documents for authenticity and legal sufficiency. While Congress determines the mode of ratification, no amendment process involves a vote by the electorate.

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The role of Congress in proposing amendments

The process of amending the Constitution of the United States is derived from Article V of the Constitution. Congress plays a crucial role in proposing amendments, which can be done in two ways. Firstly, Congress can propose amendments whenever two-thirds of both Houses deem it necessary. This means that two-thirds of both the House of Representatives and the Senate must vote in favour of the proposed amendment. This method has been successfully used multiple times and is the only method that has been used so far.

The second method, which has never been used, involves Congress calling a convention for proposing amendments upon the request or application of two-thirds of the state legislatures. In this case, Congress acts as a facilitator, and the amendments are proposed by the convention rather than by Congress itself.

Once an amendment is proposed by Congress or a convention, it is submitted to the states for their consideration. The governors of the states then formally submit the amendment to their state legislatures or call for a convention, depending on what Congress has specified. It is important to note that Congress does not have a role in the amendment process, and the President does not need to sign or approve the joint resolution.

The proposed amendment becomes part of the Constitution once it is ratified by three-fourths 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 works with the Director of the Federal Register to follow established procedures and customs.

Throughout history, there have been waves of amendments to the Constitution. The first twelve amendments, including the Bill of Rights, were added by 1804. After a long period without amendments, the Civil War prompted the addition of three significant amendments: the Thirteenth (outlawing slavery), the Fourteenth (protecting equal civil rights), and the Fifteenth (forbidding racial discrimination in voting). More recently, four amendments (Sixteen through Nineteen) were added between 1913 and 1920.

In summary, Congress plays a central role in proposing amendments to the Constitution. While it can initiate the process with a two-thirds majority vote in both Houses, it can also call for a convention upon the request of two-thirds of the states. The proposed amendments are then submitted to the states for ratification, with three-fourths of the states needed for an amendment to become part of the Constitution.

The role of the Archivist in the ratification process

The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA). The Archivist is responsible for the supervision and direction of the National Archives. The Archivist, along with the Deputy Archivist, is responsible for upholding the integrity of the constitutional amendment process and ensuring that changes to the Constitution are carried out in accordance with the law.

After Congress proposes an amendment, the Archivist of the United States is charged with responsibility for administering the ratification process. The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register.

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 found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

When 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 the Congress and to 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 it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.

The role of the Director of the Federal Register

The Director of the Federal Register is responsible for the day-to-day operations and publication policy of the Federal Register. The Director is also responsible for publishing the official text of Federal laws, Presidential documents, and regulations.

The Director of the Federal Register plays a crucial role in the constitutional amendment process. After Congress proposes an amendment, the Archivist of the United States delegates many of the ministerial duties associated with the ratification process to the Director. When a state ratifies a proposed amendment, it sends an original or certified copy of the State action 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 for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them.

The OFR retains these documents until an amendment is adopted or fails, after which the records are transferred to the National Archives for preservation. 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 serves as official notice to Congress and the nation that the amendment process has been completed.

The Director of the Federal Register also has the legal authority to implement and enforce regulations of the Administrative Committee of the Federal Register (ACFR), which was established in 1935 to oversee the functions of the Federal Register publication system. The ACFR has rule-making authority to set prices, prescribe the manner and form of Federal Register publication and distribution, and ensure the proper organization of materials and codification of amendments.

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Ratification by three-quarters of the states

The process of amending the US Constitution is outlined in Article V of the Constitution. Congress must pass a proposed amendment with a two-thirds majority vote in both the Senate and the House of Representatives. After this, the amendment is sent to the states for ratification.

For an amendment to become part of the Constitution, it must be ratified by three-quarters of the states, which is currently 38 out of 50 states. This can be done through a vote of the state legislatures or a state convention convened specifically for this purpose. The mode of ratification is determined by Congress, and in neither of these two processes is a vote by the electorate applicable to the ratification of a constitutional amendment.

The ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). Once the required number of authenticated ratification documents is received by the OFR, a formal proclamation is drafted 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, serving as official notice to Congress and the nation that the amendment process is complete.

It is important to note that Article V also provides for an alternative process, which has never been utilized. If two-thirds of the state legislatures request it, Congress shall call a constitutional convention to propose amendments. Any amendment proposed by this convention must also be ratified by three-quarters of the states to become part of the Constitution.

The mode of ratification

To become part of the Constitution, any amendment proposed by that convention must be ratified by three-quarters of the states through a vote of either the state legislature or a state convention convened for that purpose. So far, with one exception (the Twenty-First Amendment), every amendment has been ratified by state legislatures.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 out of 50 states). When 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. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President.

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