Amendments: Who Ratifies The Constitution?

The process of amending the US Constitution is outlined in Article V of the document. Amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a convention called by Congress at the request of two-thirds of state legislatures. For an amendment to become part of the Constitution, it must be ratified by either three-quarters of state legislatures or ratifying conventions in three-quarters of states. The process is administered by the Archivist of the United States, who notifies each state governor of a proposed amendment, and the final ratification is certified by the Archivist and published in the Federal Register.

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The role of Congress in proposing amendments

The United States Constitution grants the power to amend it to Congress. This power is derived from Article V of the Constitution, which outlines two methods for proposing amendments. The first method involves a two-thirds vote in both the House of Representatives and the Senate, while the second method is triggered when two-thirds of state legislatures call for a convention to propose amendments. In both cases, Congress plays a crucial role in initiating the amendment process.

Congress has successfully utilised the first method numerous times, with at least 11,000 proposals introduced and 33 amendments proposed and sent to the states for ratification. To propose an amendment, Congress must pass a joint resolution with a two-thirds majority in both chambers. This resolution bypasses the President and is sent directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR then prepares an information package for the states, including formal copies of the joint resolution and the statutory procedure for ratification.

The second method, which has never been used, allows for a potential bypass of Congress. If two-thirds of state legislatures call for a convention to propose amendments, Congress must convene such a convention. The amendments proposed in this convention would then be sent to the states for ratification, regardless of Congress's approval.

Once an amendment is proposed, either by Congress or a convention, it is submitted to the states for ratification. Congress can specify whether the states should ratify the amendment through their legislatures or by holding ratifying conventions. In both scenarios, three-quarters of the states must ratify the amendment for it to become part of the Constitution.

The Archivist of the United States plays a key role in administering the ratification process. They notify each state governor of the proposed amendment, who then formally submit it to their state legislature or call for a convention, as specified by Congress. Once an amendment is ratified by three-quarters of the states, the Archivist certifies its validity, and it becomes an operative part of the Constitution.

The role of the President in the amendment process

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, the President may play an informal, ministerial role in the amendment process. 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 an amendment has become a ceremonial function attended by various dignitaries, which may include the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment.

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the NARA, is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register.

The Congress proposes an amendment in the form of a joint resolution. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b. 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 Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. 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. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-quarters of the States (38 of 50 States).

The process of ratification by state legislatures

The process of amending the US Constitution is outlined in Article V of the Constitution. This article describes two methods of proposing amendments: through Congress or a convention called by Congress at the request of two-thirds of state legislatures.

Once an amendment is proposed, it is submitted to the states for their consideration. Governors then formally submit the amendment to their state legislatures or call for a convention, depending on what Congress has specified.

State legislatures play a crucial role in the ratification process. To become part of the Constitution, an amendment must be ratified by three-quarters of the state legislatures, which currently equates to at least 38 out of 50 states. Each state's legislature votes to either ratify or reject the proposed amendment, and the vote carries equal weight regardless of the state's population or length of time in the Union. There is no specific time limit for ratification by state legislatures, and the resolution to ratify must be passed before the amending bill is presented to the President for assent.

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 is responsible for administering the ratification process. The Office of the Federal Register (OFR) examines the ratification documents for authenticity and legal sufficiency. 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, serving as official notice that the amendment process is complete.

While the President does not have a constitutional role in the amendment process, their presence at the signing of the certification has become a ceremonial aspect of the procedure.

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The role of the Archivist of the United States

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, which include the preservation of government records and making them available to the public.

The Archivist is appointed by the President of the United States and confirmed by the Senate. The first Archivist, R.D.W. Connor, began serving in 1934 when the National Archives was established as an independent federal agency by Congress. The current Archivist is Dr. Colleen Shogan, who assumed office in May 2023. She is the 11th Archivist and the first woman to hold the position permanently.

One of the key roles of the Archivist is to administer the ratification process of amendments to the Constitution. After Congress proposes an amendment, the Archivist officially notifies the states by sending a registered letter to each state's Governor. The Governors then submit the amendment to their state legislatures or call for a convention, depending on what Congress has specified. Once an amendment is ratified by three-quarters of the states, the Archivist certifies 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 that the amendment process is complete.

In addition to this, the Archivist also has duties concerning the custody of important documents, such as Electoral College documents during presidential elections and original versions of all statutes of the United States. The Archivist works closely with other officials, such as the Director of the Federal Register, who assists in the ratification process and the preservation of documents.

The certification of ratification

The Archivist of the United States plays a crucial role in the certification process. They are responsible for administering the ratification process and ensuring its smooth execution. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register, who works closely with the Archivist to facilitate the process.

It is important to note that the certification of ratification does not require any further action by Congress or any other entity. Once the required number of states have ratified the amendment, it becomes an operative part of the Constitution. The certification process simply provides official recognition and notification of the completed amendment process.

Throughout history, various Executive Branch officials have performed the duty of certifying the ratification of constitutional amendments. The role has been transferred over time, with the Secretary of State initially performing this responsibility, followed by the Administrator of General Services, and now the Archivist of the United States. The certification ceremony has also evolved to include dignitaries, such as the President, underscoring the significance of the occasion.

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