Amending The Constitution: Who Can Propose Changes?

The process of amending the United States Constitution is outlined in Article V of the Constitution. There are two methods for proposing amendments: Congress can propose an amendment with a two-thirds majority vote in both the House of Representatives and the Senate, or a constitutional convention can be called for by two-thirds of the state legislatures. Once an amendment is proposed, it must be ratified by three-fourths of the states to become part of the Constitution. The Archivist of the United States is responsible for administering the ratification process, and the final step is a formal proclamation certifying that the amendment is valid.

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Congress with a two-thirds majority vote

Congress can propose a formal amendment to the U.S. Constitution with a two-thirds majority vote in both the House of Representatives and the Senate. This is outlined in Article V of the Constitution, which establishes two methods for proposing amendments. The first method, which has been used to propose thirty-three amendments, requires a two-thirds majority vote in both the House and the Senate. This vote is based on the number of members present, assuming a quorum is met, rather than the entire membership.

The second method, which has never been used, involves Congress calling a convention for proposing amendments at the request of two-thirds of the state legislatures. This method reflects a compromise made during the 1787 Constitutional Convention, with one group arguing for no congressional involvement in the amendment process and the other advocating for national legislative involvement.

When Congress proposes an amendment with a two-thirds majority vote, it does so in the form of a joint resolution. The joint resolution is forwarded directly to the National Archives and Records Administration (NARA) for processing and publication, bypassing the President as they do not have a constitutional role in the amendment process. The Archivist of the United States, who heads NARA, is responsible for administering the ratification process.

The proposed amendment is then submitted to the states for potential ratification. To become part of the Constitution, an amendment must be ratified by three-quarters of the states (38 out of 50 states). This can be achieved through the state legislatures or ratifying conventions conducted in three-quarters of the states. Once an amendment is ratified, the Archivist certifies its validity, and it becomes an operative part of the Constitution.

State legislatures request a convention

The United States Constitution, specifically Article V, outlines two methods for proposing amendments. The first method, which has been utilised thirty-three times, involves the Congress proposing amendments with a two-thirds majority vote in both the House of Representatives and the Senate.

The second method, which has never been used, is through a convention for proposing amendments called by Congress at the request of two-thirds of the state legislatures. This method reflects the belief that the national legislature should have no role in the constitutional amendment process, leaving it solely to the state legislatures or state conventions.

State legislatures play a crucial role in this second method of proposing amendments. When two-thirds of the state legislatures apply, Congress is compelled to call for a convention with the specific purpose of amending the Constitution. This process empowers the states to initiate constitutional change without the direct involvement of Congress.

While this method has yet to be utilised, there have been several instances where it came close. For example, only one state was lacking when an amendment for the direct election of senators was being considered. Similarly, a proposal for a balanced budget amendment fell just two states short of the required number. These near misses demonstrate the political reality that a genuine national movement behind a petition by two-thirds of the states will likely prompt a response from Congress.

Once an amendment is proposed, either through Congress or a convention, it must be ratified to become part of the Constitution. Ratification can occur through the legislatures of three-quarters of the states or by ratifying conventions in three-quarters of the states. The latter method has only been used once in American history, during the 1933 ratification of the Twenty-First Amendment.

The Archivist of the United States

Once Congress proposes an amendment, the Archivist officially notifies the states by sending a registered letter to each state's governor. This notification serves as an official notice that an amendment has been proposed and is ready for consideration by the states. The governors then submit the proposed amendment to their respective state legislatures or call for a state convention, depending on the instructions provided by Congress.

The Archivist's role also includes receiving and reviewing ratification documents from the states. When a state ratifies a proposed amendment, it sends an original or certified copy of the state's action to the Archivist. The Archivist then conveys this information to the Director of the Federal Register for further review and custody.

In addition, the Archivist is responsible for certifying the facial legal sufficiency of ratification documents. While the Archivist does not make substantive determinations on the validity of state ratification actions, their certification is considered final and conclusive. This certification is a formal proclamation that the amendment has met the necessary requirements and has become an official part of the Constitution. The signing of this certification has become a ceremonial event, often attended by various dignitaries, including the President.

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The Director of the Federal Register

Once an amendment is proposed by Congress, the original document is forwarded directly to the Office of the Federal Register (OFR) within the National Archives and Records Administration (NARA). The OFR, under the supervision of the Director of the Federal Register, is responsible for processing and publishing the proposed amendment. They add legislative history notes to the joint resolution and publish it in slip law format. Additionally, the OFR assembles an information package for the states, which includes formal copies of the joint resolution.

The OFR's role in the ratification process also includes verifying the required number of authenticated ratification documents. Once the necessary number is reached, 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 then published in the Federal Register, serving as official notice to Congress and the nation that the amendment process is complete.

Ratification by three-quarters of states

The process of amending the US Constitution is outlined in Article V of the Constitution. After an amendment is proposed, it must be ratified by three-quarters of the states (38 out of 50) to become part of the Constitution. This can be done through state legislatures or ratifying conventions, with Congress deciding the mode of ratification.

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. The Archivist follows procedures established by the Secretary of State and the Administrator of General Services, who previously performed these duties. The Archivist has delegated many of these responsibilities to the Director of the Federal Register.

The Director of the Federal Register 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. These documents are retained until an amendment is adopted or fails, after which they are transferred to the National Archives for preservation.

The process of ratification by three-quarters of the states has been utilised throughout US history, with 33 amendments submitted to the states for ratification. However, only one amendment, the Twenty-First Amendment, has been ratified by state conventions. The remaining amendments have been ratified by state legislatures.

It is important to note that Article V does not specify a deadline for the ratification of proposed amendments. However, in recent practice, most amendments have included a deadline for ratification. Additionally, there is ambiguity regarding the ability of a state to rescind its ratification before the amendment process is completed. While some commentators argue that a state's initial ratification counts towards the required three-quarters, others contend that a state can rescind its ratification if done before the amendment's finalisation.

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