Omar Bennett
The process of amending the United States Constitution is outlined in Article V of the Constitution. This article sets forth the procedures for altering the Constitution, which consist of proposing an amendment and subsequent ratification. 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 for by two-thirds of the state legislatures. To become part of the Constitution, an amendment must be ratified by three-quarters of the state legislatures or by ratifying conventions in three-quarters of the states. The Archivist of the United States is responsible for administering the ratification process and notifying the states that an amendment has been proposed.
| Characteristics | Values |
|---|---|
| Authority to amend | Article V of the Constitution |
| Amendment proposal | Congress with 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 |
| Amendment ratification | Ratification by three-fourths of the States (38 of 50 States) |
| Amendment certification | Formal certification by the Archivist of the United States |
| Amendment finalisation | Publication in the Federal Register and U.S. Statutes at Large |
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What You'll Learn
Article V outlines the amendment process
Article V outlines the process of amending the US Constitution. It sets forth two methods for proposing and ratifying amendments. Firstly, amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This is the only method used thus far. Secondly, amendments can be proposed by a convention called for by two-thirds of state legislatures.
To become part of the Constitution, an amendment must be ratified by either the legislatures of three-quarters of the states or by ratifying conventions in three-quarters of the states. Congress determines the mode of ratification. The amendment process does not require presidential approval, and the President has no official function in the process.
Article V also makes two things unchangeable, even through the difficult amendment process. These are that no amendment made before 1808 can affect the first and fourth clauses in the Ninth Section of the first Article, and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
The amendment process is considered very difficult and time-consuming. The US Constitution has only been amended 27 times since it was drafted in 1787, including the first 10 amendments, known as the Bill of Rights. The process has been influenced by interpretations and interventions by the Supreme Court, which has "fixed" the Constitution before amendments have been enacted.
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Amendments proposed by Congress
The authority to amend the US Constitution comes from Article V of the Constitution. Amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This is done through a joint resolution, which does not require presidential approval. Once an amendment is approved by Congress, it is sent to the states for ratification.
Since 1789, Congress has sent 33 constitutional amendments to the states for ratification, 27 of which have been ratified. The first 10 amendments, known as the Bill of Rights, were ratified in 1791. These amendments include protections against unreasonable searches and seizures, the right to trial by jury, and the prohibition of cruel and unusual punishments.
Congress has considered various other amendments throughout history, some of which have not been approved. For example, in 1911, Representative Victor Berger proposed an amendment to abolish the Senate, believing it to be corrupt and useless. In 1860, on the eve of the American Civil War, Virginia Representative Albert Jenkins proposed an amendment to eliminate the presidency and replace it with two elected officials, one from the North and one from the South, to ensure equal representation for both regions.
The process of amending the Constitution is deliberately designed to be difficult but not impossible, recognising the need for flexibility in governance. As a result, the US Constitution is considered one of the most challenging to amend among all the world's constitutions.
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Amendments proposed by a convention
The process of amending the Constitution of the United States is outlined in Article V of the Constitution. Amendments can be proposed by either Congress or a convention of states. While 27 amendments have been proposed by Congress, none have been proposed by a convention.
A convention for proposing amendments can be called by Congress at the request of two-thirds of state legislatures (34 out of 50 states). This method of proposing amendments has been debated extensively by scholars and has never been used. There are concerns about a "runaway convention" that could propose amendments beyond the scope of the initial call, and debates continue over whether Congress must call a convention upon the request of two-thirds of the states, and whether a convention, once called, may be limited to addressing certain topics.
Despite never being used, the convention method has been considered by states on a variety of subjects. For example, thirty states had requested a convention for a balanced budget amendment as of 1981, and there have been concerted efforts in the 20th century to secure the necessary number of applications for an Article V Convention on issues such as providing for the popular election of the U.S. President.
Once a convention is called, amendments become part of the Constitution when ratified by three-quarters of the states (38 out of 50 states), either through their legislatures or ratifying conventions. The Archivist of the United States administers the ratification process, notifying each state's governor that an amendment has been proposed. The governor then formally submits the amendment to their state's legislature or ratifying convention. Upon receiving the required number of state ratifications, the Archivist issues a certificate proclaiming the amendment duly ratified and part of the Constitution.
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Ratification by state legislatures
The process of amending the Constitution of the United States is outlined in Article V of the Constitution. After an amendment is proposed by Congress, it is sent to the states for ratification. The President does not have a constitutional role in the amendment process, and the joint resolution does not require presidential approval.
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist notifies the states by sending a letter to each state governor, who then formally submits the amendment to their state legislature or calls for a convention, as specified by Congress. The mode of ratification—state legislature or convention—is determined by Congress.
In the past, some state legislatures have not waited for official notice before acting on a proposed amendment. When a state ratifies, it sends the Archivist an original or certified copy of the state's action, which is conveyed to the Director of the Federal Register for examination and authentication. The OFR retains these documents until an amendment is adopted or fails, after which they are transferred to the National Archives for preservation.
While Article V does not specify a time limit for ratification, Congress has attached deadlines to proposed amendments since the 20th Amendment. However, the 27th Amendment, the most recent amendment, had no deadline as it was passed by Congress in 1789 and ratified over two centuries later in 1992.
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Ratification by state conventions
The process of amending the Constitution of the United States is outlined in Article V of the Constitution. After an amendment is proposed by Congress, it is sent to the states for ratification. Ratification by state conventions is one of two methods established by Article V for ratifying proposed amendments.
The process of ratification by state convention is more complicated than the standard ratification method used by state legislatures. In the latter, a resolution, memorial, or proclamation of ratification is proposed and voted on in each chamber of the state legislature. By contrast, the convention method involves convening a group of delegates—typically citizens—who are presumed to be less susceptible to political pressure.
In the lead-up to a convention, state lawmakers may enact laws to prepare for the possibility of Congress specifying the convention method of ratification. These laws can refer to a one-off event, such as an ad-hoc convention for a specific amendment, or provide general guidelines for ratifying conventions. For example, in Delaware, the governor announces an election of delegates, with the latest date being the next general election held at least three months after the amendment is proposed. In New Mexico, the convention is not elected but is instead formed by all members of the state legislature, who assemble in the chamber of the state House of Representatives. Vermont's governor, meanwhile, has 60 days to call for the election of delegates.
The convention method of ratification described in Article V allows for a consideration of the pros and cons of a proposed amendment and provides a means of potentially bypassing the state legislatures in the ratification process. It is worth noting that, historically, ratification by state convention has only occurred once—during the 1933 ratification process of the 21st Amendment.
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