Amending The Constitution: Who Has The Power?

The process of amending the Constitution of the United States is outlined in Article V of the Constitution, which grants Congress the authority to propose and approve amendments. An amendment may be proposed by 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. Once an amendment is proposed, it is sent to the states for ratification, becoming part of the Constitution when ratified by three-quarters of the states. The President does not have a constitutional role in the amendment process, and the authority to decide the mode of ratification lies with Congress. The Archivist of the United States and the Director of the Federal Register are responsible for administering the ratification process and ensuring its legal sufficiency.

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Amendments may be proposed by Congress with a two-thirds majority vote

The United States Constitution outlines the procedure for altering its provisions in Article Five. This article provides two methods for amending the nation's frame of government. One of these methods involves the Congress, with a two-thirds majority vote in both the House of Representatives and the Senate, proposing amendments to the Constitution. This process bypasses the President, who does not have a constitutional role in amending the Constitution, as confirmed by the Supreme Court in Hollingsworth v. Virginia (1798).

When Congress proposes an amendment, it takes the form of a joint resolution. This resolution is then sent to the states for ratification without requiring presidential approval. This procedure was established when the 1st Congress considered constitutional amendments. While both the House and the Senate could have first adopted a resolution indicating the necessity of amendments, they instead directly proceeded to consider a joint resolution. This precedent has been followed ever since.

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register, who follows procedures established by the Secretary of State and the Administrator of General Services. Once a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action, which is conveyed to the Director of the Federal Register.

The Office of the Federal Register (OFR) examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody. The OFR retains these documents until an amendment is adopted or fails, after which the records are transferred to the National Archives for preservation. An amendment becomes part of the Constitution when ratified by three-fourths of the states (38 out of 50), as determined by Congress. The OFR then drafts a formal proclamation for the Archivist to certify the amendment's validity, which is published in the Federal Register and U.S. Statutes at Large.

Amendments can be proposed by a constitutional convention

The United States Constitution outlines two methods for proposing amendments. One of these methods involves a constitutional convention.

The convention method for proposing amendments has been a topic of debate among scholars. Some argue that states may influence Congress to propose an amendment on a specific issue by applying for an Article V convention. This is supported by the fact that Congress has never solely held the power to propose constitutional amendments. During the 1787 Constitutional Convention, George Mason expressed his concerns, stating that if the "consent of the National Legislature" was required, they may "abuse their power" and "refuse their consent". As a result, the convention unanimously voted to allow states to request Congress to call a convention for proposing amendments.

However, there are concerns about the potential for an Article V convention to become a "runaway convention". If a convention exceeds its scope, any amendments it proposes would still need to be ratified by three-quarters of the states, which is more than the number of states required to call for a convention. Debates also surround the level of control Congress has over other aspects of a convention, such as the rules of procedure and the voting threshold for proposing an amendment.

Once an amendment is proposed by a constitutional convention, it is sent to the Archivist of the United States, who administers the ratification process. The amendment becomes part of the Constitution when ratified by three-quarters of the states (38 out of 50), either through their legislatures or ratifying conventions.

The President does not have a constitutional role in the amendment process

Article V of the United States Constitution describes the procedure for altering the Constitution. Under Article V, the process to alter the Constitution consists of proposing an amendment or amendments, and subsequent ratification. Amendments may be proposed by Congress with a two-thirds vote in both the House of Representatives and the Senate, or by a convention to propose amendments called by Congress at the request of two-thirds of the state legislatures. To become part of the Constitution, an amendment must then be ratified by either the legislatures of three-quarters of the states or by ratifying conventions conducted in three-quarters of the states.

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 National Archives and Records Administration (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. Article V provides no requirement for constitutional amendments approved by Congress or by a federal convention to be presented to the president for his or her signature or veto. Thus, the president has no official function in the process.

In United States v. Sprague (1931), the Supreme Court affirmed the authority of Congress to decide which mode of ratification will be used for each individual constitutional amendment. The Court had earlier, in Hawke v. Smith (1920), upheld the Ohio General Assembly's ratification of the Eighteenth Amendment—which Congress had sent to the state legislatures for ratification—after Ohio voters successfully vetoed that approval through a popular referendum. In Hollingsworth v. Virginia (1798), the Supreme Court affirmed that it is not necessary to place constitutional amendments before the president for approval or veto.

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The Archivist of the United States administers the ratification process

The Archivist of the United States is responsible for administering the ratification process of amendments to the Constitution. The Archivist is appointed by the President with the advice and consent of the Senate. The current Archivist of the United States is Colleen Joy Shogan, who was nominated by President Joe Biden in 2022 and became the first woman to hold the position permanently.

The Archivist's role in the ratification process involves receiving an original or certified copy of state action from a state that has ratified a proposed amendment. This copy is then immediately conveyed to the Director of the Federal Register, who examines 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.

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 U.S. Statutes at Large and serves as official notice to Congress and the nation that the amendment process has been completed. The Archivist's certification of the facial legal sufficiency of ratification documents is considered final and conclusive.

It is important to note that the Archivist does not make any substantive determinations regarding the validity of state ratification actions. The procedures and customs followed by the Archivist and the Director of the Federal Register are established by the Secretary of State and the Administrator of General Services, who previously performed these duties until NARA assumed responsibility in 1985.

The Archivist's role in the ratification process ensures the integrity of the constitutional amendment process and guarantees that changes to the Constitution are carried out in accordance with the law.

Amendments become operative when ratified by the necessary number of states

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. This article provides two methods for amending the nation's frame of government. The first method involves a two-thirds majority vote in both the House of Representatives and the Senate, while the second method involves a constitutional convention called for by two-thirds of the state legislatures. Notably, none of the amendments to the Constitution have been proposed by constitutional convention so far.

Once an amendment is proposed, it is sent to the states for ratification. This is where the phrase "Amendments become operative when ratified by the necessary number of states" comes into play. For an amendment to become an operative part of the Constitution, it must be ratified by a sufficient number of states. Specifically, the legislatures of three-quarters of the states, or 38 out of 50 states, must ratify the amendment. Alternatively, Congress may determine that the amendment be ratified by ratifying conventions in three-quarters of the states, although this method has only been used once in history for the Twenty-First Amendment.

The ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with this process 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. The Director of the Federal Register examines these documents for facial legal sufficiency and an authenticating signature. If the documents are in order, the Director acknowledges receipt and maintains custody of them.

Once the required number of authenticated ratification documents is received by the Office of the Federal Register (OFR), 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 that the amendment process has been completed. At this point, the amendment becomes operative and is considered part of the Constitution, without requiring any further action from Congress or any other entity.

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