Simone Lawson
The United States Constitution has been amended only 27 times since it was drafted in 1787, and the process of amending it is a difficult and time-consuming affair. Article V of the Constitution outlines two methods for proposing amendments. The first method, which has been used for all amendments thus far, involves a two-thirds majority vote in both the House and the Senate, followed by ratification by three-fourths of the states. The second method, which has never been used, involves a constitutional convention called for by two-thirds of the state legislatures. This method has faced criticism due to the fear of a runaway convention, where the convention proposes amendments beyond its intended scope. The amendment process highlights the rigorous requirements and widespread agreement necessary to modify the foundational legal document of the nation.
| Characteristics | Values |
|---|---|
| Authority | Article V of the Constitution |
| Amendment proposal | Congress with a two-thirds majority vote in both the House of Representatives and the Senate |
| Number of amendments | 27 |
| Amendment ratification | Requires ratification by three-fourths of the States (38 of 50 States) |
| Amendment certification | Signed by dignitaries such as the President, Archivist, and Director of the Federal Register |
| Amendment methods | Two methods: Congressional proposal and convention. The convention method has never been used due to fears of a "runaway convention". |
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What You'll Learn
The role of Congress in the amendment process
The authority to amend the US Constitution is derived from Article V of the Constitution. Congress plays a crucial role in the amendment process, as outlined by Article V, which establishes two methods for proposing amendments.
The first method requires a two-thirds majority vote in both the House of Representatives and the Senate, known as a joint resolution. This is the only method that has been used thus far, with Congress proposing thirty-three constitutional amendments. The President does not have a constitutional role in this process, and the joint resolution does not require their 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. The OFR then assembles 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, involves Congress calling a constitutional convention upon the request of two-thirds of the state legislatures. This method has been the subject of extensive scholarly debate.
Once an amendment is proposed, either by Congress or through a constitutional convention, it must be ratified. Congress determines the method of ratification, which can be through the legislatures of three-fourths of the states or by conventions in three-fourths of the states. The Archivist of the United States, who heads NARA, is responsible for administering the ratification process. The Archivist's role includes receiving authenticated ratification documents from the states and certifying the validity of the amendment. This certification is published in the Federal Register and serves as official notice to Congress and the nation that the amendment process is complete.
While the President does not have a formal constitutional role in the amendment process, they have occasionally played a ministerial role in transmitting Congress's proposed amendments to the states for ratification. However, the Supreme Court has clarified that the President's involvement is not required for the submission or adoption of amendments.
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Ratification by three-fourths of state legislatures
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. Article V establishes two methods for proposing amendments to the Constitution. The first method requires both the House and the Senate to propose a constitutional amendment by a two-thirds majority vote. This is the only method that has been used thus far. 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. Article V sets forth two methods for states to ratify amendments to the Constitution. The first method, which has been used for every amendment thus far, requires ratification by three-fourths of the state legislatures (38 out of 50 states). This is known as the "legislative mode of ratification." The second method, which has never been used, involves ratification by three-fourths of state ratifying conventions. Congress determines which method the states must follow for a proposed amendment to become effective.
When a state ratifies a proposed amendment, it sends the Archivist of the United States an original or certified copy of the state action. The Archivist, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many of the ministerial duties to the Director of the Federal Register. Once the Director receives the required number of authenticated ratification documents, 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 serves as official notice that the amendment process is complete.
In recent years, the signing of the certification has become a ceremonial function attended by dignitaries, including the President. The timeliness of ratification is considered a "political question" by the Court, and Congress has the power to determine whether an amendment has been ratified within a reasonable period of time. While Article V outlines the procedures for amending the Constitution, some scholars argue that the people of the United States may amend the Constitution using methods not specifically outlined in Article V.
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The convention method
Article V of the United States Constitution establishes two methods for proposing amendments to the Constitution. The convention method, also referred to as an Article V Convention, state convention, or amendatory convention, is one of these two methods. This method involves a constitutional convention called for by two-thirds of the State legislatures (34 out of 50). The convention proposes amendments, which become law only after ratification by three-fourths of the states (38 out of 50).
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The President's role in the amendment process
The President of the United States 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, there have been instances of presidents playing an informal, ministerial role in the amendment process. For example, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment to abolish slavery, even though his signature was not necessary for the proposal or ratification of the amendment. Similarly, President Jimmy Carter signed a joint resolution to extend the deadline for the ratification of the Equal Rights Amendment, despite being advised that his signature was unnecessary.
In recent history, the signing of the certification of a new amendment has become a ceremonial function attended by various dignitaries, including the President. For example, President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon witnessed the certification of the 26th Amendment.
Despite these examples, the Supreme Court has articulated the Judicial Branch's understanding that the President has no formal constitutional role in the amendment process. In the 1798 case of 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 this view, characterizing the Court's decision in Hollingsworth as having settled that the submission of a constitutional amendment did not require the action of the President.
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The Archivist's role in the amendment process
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process of amending the Constitution. The Archivist's role in the amendment process is derived from Article V of the Constitution, which outlines two methods for proposing amendments. However, it is important to note that Article V does not provide detailed descriptions of the ratification process.
After Congress proposes an amendment, the Archivist takes on the responsibility of managing the constitutional amending process. The Archivist has delegated many of the ministerial duties to the Director of the Federal Register, who assists in this task. Together, they follow procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties until NARA assumed responsibility in 1985.
Once an amendment is proposed by Congress, the original document is forwarded to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes, publishes it in slip law format, and assembles an information package for the States. This package includes formal "red-line" copies of the joint resolution and the statutory procedure for ratification.
The Archivist then submits the proposed amendment to the States by sending a letter of notification to each Governor, along with the informational material prepared by the OFR. The Governors formally submit the amendment to their State legislatures or call for a convention, depending on Congress's specifications. It is worth noting that none of the 27 amendments to the Constitution have been proposed by a constitutional convention.
When the OFR verifies that it has received the required number of authenticated ratification documents (ratification by three-fourths of the States), it drafts a formal proclamation for the Archivist to certify. This certification confirms that the amendment is valid and has become part of the Constitution. The Archivist's signature on the certification has become a ceremonial function attended by dignitaries, including the President on some occasions. 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 is complete.
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Frequently asked questions
The most common method of amending the constitution is through Congress. All 33 amendments submitted to the states for ratification originated in Congress.
Article V of the Constitution outlines the procedures for amending the Constitution. It provides two methods for proposing amendments and two methods for states to ratify amendments.
The two methods for proposing amendments are through a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures.
The two methods for states to ratify amendments are through the state legislatures or through state ratifying conventions. Congress decides which method the states must follow for each amendment.
