Amending The Constitution: Who Approves?

The process of amending the US Constitution is outlined in Article V of the Constitution. The process involves Congress proposing an amendment 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 must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. The ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The President does not have a constitutional role in the amendment process, and the amendment becomes operative as soon as it is ratified by the required number of states. The certification of the amendment is a ceremonial function attended by dignitaries, including the President in some cases.

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The President's non-involvement in the amendment process

The US Constitution does not outline a role for the President in the amendment process. Article V of the Constitution, which describes the procedure for altering the Constitution, makes no mention of the President. This means that the President does not have a constitutional role in the amendment process and is not required to sign off on or approve any proposed amendments.

The process of amending the Constitution is initiated by Congress, which proposes an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, a constitutional convention can be called for by two-thirds of the state legislatures to propose amendments. However, in practice, all amendments have been proposed by Congress so far.

Once an amendment is proposed by Congress, it 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 sends the proposed amendment to the states for their consideration, and the amendment becomes part of the Constitution once it is ratified by three-fourths of the states (38 out of 50 states).

While the President does not have a formal role in the amendment process, there have been instances where Presidents have played a ceremonial or ministerial role. 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. Additionally, President Jimmy Carter signed a joint resolution extending the deadline for ratification of the Equal Rights Amendment, even though his signature was not required.

In summary, while the President may occasionally participate in ceremonial or ministerial functions related to the amendment process, their involvement is not constitutionally mandated or required for the validity of amendments. The authority to amend the Constitution rests with Congress and the states, and the President's non-involvement in the formal amendment process is a key feature of the US constitutional system.

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. After an amendment is proposed by Congress, 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 and customs established by the Secretary of State and the Administrator of General Services. The Director of the Federal Register also examines ratification documents for facial legal sufficiency and an authenticating signature.

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 Director of the Federal Register verifies that the required number of authenticated ratification documents has been received, 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 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, on some occasions, the President.

In summary, ratification by three-fourths of state legislatures is a crucial step in the process of amending the U.S. Constitution. It involves the review and approval of proposed amendments by state legislatures, with the Archivist of the United States and the Director of the Federal Register playing key administrative roles in the process. Once three-fourths of the states have ratified an amendment, it becomes an official part of the Constitution.

The Archivist's role in administering the ratification process

The Archivist of the United States is responsible for administering the ratification process of amendments to the Constitution. The Archivist, who heads the National Archives and Records Administration (NARA), assumes this responsibility under the provisions of 1 U.S.C. 106b.

Once an amendment is proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, the Archivist submits the proposed amendment to the States for their consideration. This is done by sending a letter of notification to each Governor, along with informational material prepared by the Office of the Federal Register (OFR).

The Governors then formally submit the amendment to their State legislatures or call for a convention, depending on Congress's specifications. 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 the ratification documents for facial legal sufficiency and an authenticating signature.

If the required number of authenticated ratification documents (from three-fourths of the States, or 38 out of 50 States) is received, the OFR 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, serving as official notice to Congress and the Nation that the amendment process is complete.

The Archivist's role is to uphold the integrity of the constitutional amendment process, ensuring that changes to the Constitution are carried out in accordance with the law. The Archivist does not make substantive determinations about the validity of State ratification actions but certifies the facial legal sufficiency of ratification documents, which is final and conclusive. Additionally, the Archivist has duties concerning the custody of Electoral College documents during United States presidential elections.

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The role of the OFR in processing and publication

The Office of Financial Research (OFR) plays a crucial role in processing and publishing amendments to the Constitution. The OFR is responsible for ensuring the accurate and timely processing and publication of proposed constitutional amendments.

Once an amendment is proposed by Congress or a constitutional convention, the original document is forwarded directly to the OFR for processing. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. This involves publishing the amendment proposal along with relevant historical context and information. The OFR also assembles an information package for the states, providing them with formal "red-line" copies of the joint resolution, which highlights the proposed changes.

The OFR's Technology Center plays a vital role in this process by providing advanced analytic tools and computing power to support the data and research requirements. It ensures the secure and timely intake, processing, and storage of data, adhering to federal data protection security standards.

After the amendment proposal is published, the OFR monitors the ratification process. Once an amendment is ratified by three-fourths of the states (38 out of 50), the OFR verifies the receipt of authenticated ratification documents. Following this verification, the OFR drafts a formal proclamation for the Archivist of the United States to certify that the amendment is valid and has become part of the Constitution.

This 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. The signing of this certification has become a ceremonial function, often attended by dignitaries, including the President on several occasions.

The Supreme Court's affirmation of Congress's authority

The authority to amend the US Constitution is derived from Article V of the Constitution. The Congress, whenever two-thirds of both Houses deem it necessary, shall propose Amendments to the Constitution. The President does not have a constitutional role in the amendment process, and the joint resolution does not require their signature or approval. Once approved by Congress, the joint resolution proposing a constitutional amendment is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.

The Supreme Court plays a crucial role in affirming Congress's authority in the amendment process. In United States v. Sprague (1931), the Supreme Court affirmed the authority of Congress to decide which mode of ratification would be used for each individual constitutional amendment. The Court upheld Congress's decision to send the Eighteenth Amendment to the state legislatures for ratification, despite a popular referendum by Ohio voters attempting to veto that approval.

In another case, Hawke v. Smith (1920), the Supreme Court ruled that a provision in the Ohio Constitution, which gave its voters the right to challenge and overturn its legislature's ratification of federal constitutional amendments, was unconstitutional. This ruling affirmed that an amendment becomes operative as part of the Constitution when ratified by the required number of states, without needing further action by Congress or any other entity.

Additionally, in Hollingsworth v. Virginia (1798), the Supreme Court affirmed that constitutional amendments do not require presidential approval or veto. This further solidified Congress's authority in the amendment process, establishing that once an amendment is approved by Congress, it proceeds directly to the states for ratification without involvement from the President.

The Supreme Court's role in interpreting and upholding Congress's authority in the amendment process is significant. It ensures that the amendment process follows the procedures outlined in Article V of the Constitution and protects Congress's power to propose and send amendments for ratification without interference from other branches of government.

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