Amending The Constitution: Who Can Propose Changes?

The United States Constitution outlines two methods for proposing amendments in Article Five. The first method involves a two-thirds majority vote in both the House of Representatives and the Senate, while the second method entails a constitutional convention called for by two-thirds of the state legislatures. Once an amendment is proposed, it must be ratified by either three-quarters of state legislatures or ratifying conventions in three-quarters of states. The Archivist of the United States and the Director of the Federal Register play crucial roles in administering the ratification process. Despite the President's lack of constitutional role in amending the Constitution, the certification of an amendment's validity has become a ceremonial event that may include the President's attendance.

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Amendments proposed by Congress

The authority to amend the US Constitution is derived from Article V of the Constitution. Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Congress proposes amendments in the form of a joint resolution, which is then forwarded directly to the National Archives and Records Administration (NARA) for processing and publication.

Since 1789, more than 11,000 amendments have been proposed, but only 27 have been ratified. The first 10 amendments, known as the Bill of Rights, were ratified in 1791. These amendments include the right to free speech, freedom of religion, the right to bear arms, and the right to peaceably assemble, among others.

Congress has considered various constitutional amendment proposals during the 19th and 20th centuries, many of which were not approved. For example, in 1838, the Dueling Ban Amendment was proposed after Representative William Graves killed another Representative, Jonathan Cilley, in a duel. In 1911, Representative Victor Berger proposed an amendment to abolish the Senate, believing it to be corrupt and useless. In 1912, Representative Seaborn Roddenbery proposed an anti-miscegenation amendment to forbid interracial marriages nationwide.

More recently, in the 91st Congress (1969-1971), an amendment was proposed to replace the Electoral College with a two-round system modelled after French presidential elections. This amendment passed the House with bipartisan support but was filibustered in the Senate. In the 116th Congress, Representative Cedric Richmond introduced an amendment to repeal the penal exception clause from the Thirteenth Amendment, prohibiting unfree labour from being used as punishment.

Amendments proposed by a convention

The Amendments proposed by a convention, also referred to as an Article V Convention, is one of two methods authorized by Article Five of the United States Constitution for proposing amendments to the Constitution. This method involves a convention of the states, where Congress calls for a constitutional convention upon the request of two-thirds of the state legislatures (34 out of 50). The convention can propose amendments without requiring approval from Congress.

The Article V Convention method has never been used to propose an amendment, and there has not been a federal constitutional convention since the original one. However, at the state level, more than 230 constitutional conventions have been assembled in the United States. The process begins with the state legislatures applying for a convention on a specific issue or group of subjects. Some scholars argue that Article V permits states to apply for a convention on a particular amendment text, while others argue that it only provides for a general convention not limited to a specific matter.

Once the convention is called, it proposes amendments, which then require ratification by three-fourths of the states (38 out of 50) to become part of the Constitution. This can be done through state legislatures or state conventions, with the latter being used only once in the case of 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's role is to certify the facial legal sufficiency of ratification documents, and their decision is final and conclusive.

The process of proposing amendments by convention is designed to bypass the federal government, as the drafters of the Constitution recognized that the congressional proposal method was controlled by the federal government and could not be relied upon to address federal governmental abuses. This method empowers the states to initiate the amendment process and propose amendments directly.

In recent years, there have been efforts to call for an Article V Convention. For example, the political action committee Wolf-PAC, emerging from the Occupy Wall Street movement, has called for a convention of states to propose an amendment addressing campaign finance reform. Their resolution aims to establish that corporations do not have the same rights as human beings and should not be allowed to contribute to political campaigns. As of 2022, Wolf-PAC's application has been adopted in California, Vermont, and Rhode Island.

Ratification by state legislatures

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. It is a challenging process, with the Constitution having only been amended 27 times. In contrast, state constitutions are amended regularly, with the current constitutions of the 50 states having been amended around 7,000 times.

Amendments to the Constitution may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, they can be proposed by a constitutional convention called for by two-thirds of state legislatures. Once an amendment is proposed, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process.

When an amendment is ratified by three-quarters of the state legislatures (38 out of 50 states), it becomes part of the Constitution. The process involves the governors of each state formally submitting the amendment to their state legislatures. Some state legislatures have acted on proposed amendments without waiting for official notification. 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 then conveys it to the Director of the Federal Register. The Office of the Federal Register (OFR) examines the ratification documents for legal sufficiency and authenticity of signatures. 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, at which point they are transferred to the National Archives for preservation.

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, serving as official notification to Congress and the nation that the amendment process is complete.

While the process for amending the US Constitution is standardised, state constitutions offer multiple paths for amendments, which can vary significantly in difficulty. Some states, like Massachusetts, require citizen-initiated amendments to secure support from a portion of the legislature before appearing on the ballot. In contrast, other states, like Nevada, require citizen-initiated amendments to be approved by a majority of voters in two consecutive elections. Additionally, some states allow constitutional commissions to submit amendments directly to voters, with Florida being unique in this regard.

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Ratification by conventions

The process to alter the US Constitution consists 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. Alternatively, amendments can be proposed by a convention called for by two-thirds of state legislatures.

Once an amendment has been proposed, it must be ratified to become part of the Constitution. This can be done in two ways, as determined by Congress:

Ratification by Legislatures of Three-Fourths of the States

The first method of ratification is through the legislatures of three-fourths of the states (38 out of 50 states). This method has been used for all 27 ratified amendments to the Constitution.

The second method of ratification is through conventions in three-fourths of the states (38 out of 50 states). This method has only been used once in US history, for the ratification of the Twenty-First Amendment in 1933.

While the convention method has been authorized by Article V of the Constitution, it has never been used at the federal level. However, more than 230 constitutional conventions have been assembled at the state level. Some proponents argue that the convention method is unlikely to exceed its scope, given the extensive experience of states in holding constitutional conventions.

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 duties to the Director of the Federal Register, who examines ratification documents for legal sufficiency and authenticity. Once an amendment is ratified, the Archivist certifies its validity, and it becomes part of the Constitution.

The President's role

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.

The President may, however, be involved in the ceremonial function of signing the certification of an amendment's ratification. This is not a substantive role, but rather a symbolic one. The President's presence at this ceremony is not required, and the amendment process can be completed without their participation.

In the past, there have been legal debates about the role of the President in the amendment process. For example, in Hollingsworth v. Virginia, the court settled that the submission of a constitutional amendment did not require the action of the President. Similarly, in INS v. Chadha, the court held that presidential approval was unnecessary for a proposed constitutional amendment. These cases reinforce the interpretation that the President does not have a formal role in proposing or ratifying constitutional amendments.

While the President does not initiate or approve amendments, their presence at ceremonial events related to the amendment process underscores the importance and solemnity of constitutional changes.

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