Amending The Constitution: Who Holds The Power?

The process of amending the US Constitution is outlined in Article V of the Constitution. Amending the Constitution is a difficult task, and since it was drafted in 1787, it has only been amended 27 times. Amendments can 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 must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. The process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA).

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Amendments proposed by Congress

The United States Constitution has been amended 27 times since it was first drafted in 1787. The process of amending the Constitution is a challenging and lengthy one, as the framers of the Constitution intended. Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This process has been utilised 33 times since 1789, resulting in 27 successful amendments.

Congress proposes an amendment in the form of a joint resolution, which is then forwarded to the National Archives and Records Administration (NARA) for processing and publication. The NARA's Office of the Federal Register (OFR) plays a crucial role in the process. It adds legislative history notes to the joint resolution, publishes it, and assembles an information package for the states.

Once an amendment is proposed by Congress, it must be ratified by the legislatures of three-fourths of the states (38 out of 50 states) to become part of the Constitution. This can be done through state legislatures or state ratifying conventions, with Congress deciding on the ratification method for each amendment. The OFR examines ratification documents for authenticity and legal sufficiency. When the required number of authenticated ratification documents 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.

Throughout history, Congress has proposed numerous amendments, some of which have been approved and others that have not. For example, in 1789, Congress proposed amendments now known as the Bill of Rights, which were ratified in 1791. These amendments included the right to security against unreasonable searches and seizures, the preservation of the right to trial by jury, and the prohibition of cruel and unusual punishments.

On the other hand, some proposed amendments have not gained sufficient support. For instance, in 1911, Representative Victor Berger proposed an amendment to abolish the Senate, citing corruption and ineffectiveness. This amendment was not approved by Congress. Similarly, in 1912, Representative Seaborn Roddenbery proposed an anti-miscegenation amendment to prohibit interracial marriages nationwide, which was also not approved.

Ratification by state legislatures

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 sent to the states for ratification by a vote of the state legislatures. This is known as the "ratification by state legislatures" process.

The process begins when the governors formally submit the proposed amendment to their state legislatures. Some state legislatures have taken action on a proposed amendment without waiting for official notice from the governor. Once a state ratifies a proposed amendment, it sends an original or certified copy of the state action to 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.

The Director of the Federal Register examines the ratification documents for facial legal sufficiency and the presence of 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.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50 states). 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 U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete.

It is important to note that the convention method of ratification, described in Article V, provides an alternative route to the state legislatures in the ratification process. This method involves convening a convention of delegates, who are presumably average citizens, to consider the proposed amendment. However, the convention method has been utilized only once in the ratification of the 21st Amendment.

The role of the Archivist

While the Archivist has delegated many of the ministerial duties to the Director of the Federal Register, they still play a vital role in ensuring the smooth functioning of the amendment process. The Archivist and the Director follow procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties before NARA became an independent agency in 1985.

One of the key responsibilities of the Archivist is to receive and review ratification documents from the states. When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action. The Archivist then conveys this information to the Director of the Federal Register for further processing.

The Archivist's role also includes certifying the validity of an amendment. Once the Office of the Federal Register (OFR) verifies that it has received the required number of authenticated ratification documents, the Archivist certifies 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 to Congress and the nation that the amendment process is complete. The signing of this certification has become a ceremonial function attended by dignitaries, including sometimes the President.

In conclusion, the Archivist of the United States plays a crucial role in the amendment process by administering the ratification process, reviewing state ratification documents, and certifying the validity of amendments. Their role ensures the integrity and accuracy of the amendment process, contributing to the enduring nature of the Constitution.

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The President's involvement

The process of amending the US Constitution is a challenging task, as the framers intended when it was first drafted in 1787. The Constitution has been amended 27 times since then, with none of the amendments being proposed by a constitutional convention. The President does not have a formal constitutional role in the amendment process, and the Supreme Court has affirmed this interpretation. The President's involvement in the process is typically limited to a ceremonial or ministerial capacity, such as signing certifications as a witness or transmitting Congress's proposed amendments to the states for ratification.

The President's role in the amendment process is not constitutionally mandated, and their signature is not required for the proposal or ratification of amendments. However, some Presidents have played a role in transmitting Congress's proposed amendments to the states for potential ratification. For example, President George Washington sent the first twelve proposed amendments, including the ten proposals that became the Bill of Rights, to the states for ratification after Congress approved them.

In a few instances, Presidents have signed joint resolutions related to amendments. For example, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment to abolish slavery, even though his signature was not necessary. Similarly, President Jimmy Carter signed a joint resolution extending the deadline for ratification of the Equal Rights Amendment, despite being advised that his signature was unnecessary.

The President may also be involved in the ceremonial functions related to the amendment process. In recent history, the signing of the certification of an amendment has become a ceremonial event 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.

While the President does not have a formal role in proposing or ratifying amendments, they can endorse the idea of potential amendments. For example, President Clinton endorsed the idea of a crime victims' rights amendment. Ultimately, the President's involvement in the amendment process is limited, and the power to propose and ratify amendments lies primarily with Congress and the states.

Article V's procedures

The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. To ensure its longevity, the framers made it a challenging process to amend the document. The authority to amend the Constitution of the United States is derived from Article V of the Constitution.

Article V outlines two methods for proposing amendments to the Constitution. Amendments may be proposed by Congress 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. Once an amendment is proposed, it must be ratified. To date, all amendments have been ratified by state legislatures, with the exception of the Twenty-First Amendment in 1933, which was ratified by conventions in three-quarters of the states.

The process of ratification involves the Archivist of the United States, who 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. 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.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-quarters of the states (38 out of 50 states). 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 notice to Congress and the nation that the amendment process has been completed.

While Article V establishes the procedures for amending the Constitution, there is some debate over whether it is the exclusive means of doing so. Legal scholars generally agree that the Article V process can itself be amended by the procedures it outlines. However, some argue that the people of the United States may amend the Constitution using methods not specifically outlined in Article V.

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