The People's Power: Passing Constitutional Amendments

The process of amending a constitution varies across different nations. In the United States, the authority to amend the Constitution is derived from Article V of the Constitution. 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. An amendment becomes operative once it is ratified by three-quarters of the states, and no further action by Congress or any other entity is required. In other nations, such as Ireland, Estonia, and Australia, constitutional amendments often originate as bills and become laws through acts of parliament, sometimes requiring approval by a supermajority in the legislature or direct approval by the electorate in a referendum.

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The role of Congress

The United States Constitution was written to endure for ages, and amending it is a difficult and time-consuming process. The authority to amend the Constitution of the United States is derived from Article V of the Constitution. Amendments may be proposed by Congress with a two-thirds vote in both the House of Representatives and the Senate. This was the case with the Thirteenth, Fourteenth, and Fifteenth Amendments. The President does not have a constitutional role in the amendment process.

Congress can also call a convention to propose amendments at the request of two-thirds of the state legislatures. This has never happened, but the idea has its supporters, including retired federal judge Malcolm R. Wilkey. Congress can also fix the time for ratification in advance or at a later date. Once an amendment has been ratified by the legislatures of three-quarters of the states (38 out of 50), it becomes part of the Constitution. Congress has, on three occasions, adopted a resolution declaring the process successfully completed, but these actions are constitutionally unnecessary.

Congress also has the power to restrict the importation of slaves before 1808 and to ensure that direct taxes are apportioned according to state populations. Congress cannot deprive a state of its equal representation in the Senate without that state's consent.

In recent years, supporters of congressional term limits and a balanced budget amendment have been unsuccessful in getting new amendments passed. The Constitution has been amended only 27 times since it was drafted in 1787. The process of amending the Constitution is challenging, and not just any idea deserves an amendment. The proposal must have a significant impact on all Americans or secure the rights of citizens.

The role of the President

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.

However, in recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President. 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. On the other hand, in 1865, President Abraham Lincoln signed what would become the Thirteenth Amendment, and Congress later passed a resolution affirming that the presidential signature was unnecessary.

While the President does not have a direct role in passing constitutional amendments, they can still influence the process by endorsing or supporting specific amendment proposals. For instance, President Clinton endorsed the idea of a crime victims' rights amendment.

It is worth noting that the process of amending the Constitution is deliberately designed to be challenging and time-consuming. This is to ensure that any changes made are significant and have a lasting impact on the nation. As a result, the Constitution has only been amended 27 times since it was drafted in 1787.

The role of the Archivist of the United 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 responsible for administering the ratification process. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.

The Archivist's role in the constitutional amendment process includes submitting amendments proposed by Congress to the states for ratification, collecting state ratifications, and certifying amendments as part of the Constitution once three-fourths of the states (38 out of 50 states) ratify them. The Office of the Federal Register (OFR) assists the Archivist in this process. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. It also assembles an information package for the states, which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification.

The Archivist officially notifies the states by sending a registered letter to each state's Governor, along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their state legislatures or call for a convention, depending on what Congress has specified. 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 documents are in order, the Director acknowledges receipt and maintains custody of them until an amendment is adopted or fails, after which the records are transferred to the National Archives for preservation.

The Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive. 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 has been completed. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President.

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State-level ratification

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 the responsibility of the Archivist of the United States, who leads the National Archives and Records Administration (NARA), to oversee the ratification process. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register.

The state legislatures or ratifying conventions then vote on the proposed amendment. The weight of each state's vote is equal, regardless of its population or length of time as a state. The state's decision to ratify or reject an amendment is conveyed to the Archivist through an original or certified copy of the state's action. This copy is immediately forwarded to the Director of the Federal Register for examination and safekeeping.

The OFR (Office of the Federal Register) plays a pivotal role in the state-level ratification process. It examines the ratification documents to ensure their authenticity and legal sufficiency. Once the OFR verifies that the required number of authenticated ratification documents has been received, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become an integral part of the Constitution. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notification to Congress and the nation that the amendment process has been successfully concluded.

It is worth noting that some states have unique processes for enacting amendments. For example, Hawaii, Minnesota, Tennessee, and Wyoming require amendments to be approved by a majority of voters in the entire election. Illinois adopts a similar approach, allowing amendments to be approved by either three-fifths of voters on the amendment or a majority of voters in the entire election. Furthermore, seventeen states allow citizen-initiative processes for enacting amendments, bypassing the traditional legislative route.

Special procedures

Amending a constitution is a difficult and time-consuming process. Most constitutions require that amendments be enacted through a special procedure that is more stringent than the process for passing ordinary legislation. These special procedures may include supermajorities in the legislature, direct approval by the electorate in a referendum, or a combination of both.

In the United States, the authority to amend the Constitution is derived from Article V of the Constitution. Amendments may be proposed by Congress with a two-thirds vote in both the House of Representatives and the Senate, or by a convention called by Congress at the request of two-thirds of the state legislatures. The President does not have a constitutional role in the amendment process. Once an amendment is proposed, the Archivist of the United States is responsible for administering the ratification process. The amendment must then be ratified by three-quarters of the state legislatures, or by ratifying conventions in three-quarters of the states.

Other countries have their own unique procedures for amending their constitutions. For example, in South Africa, a bill amending the Constitution must be introduced in the National Assembly and cannot contain any provisions other than constitutional amendments and directly related matters. The bill must be published for public comment and submitted to the provincial legislatures at least 30 days before it is introduced. All amendments must be passed by an absolute two-thirds supermajority in the National Assembly.

In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament. However, a special procedure is still required to bring an amendment into force. For example, in Australia, a simple majority of voters in a majority of states is required to pass an amendment, while in Ireland, only a simple majority of those voting is needed.

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