Amendments: Who Has The Power To Pass Them?

The process of amending the United States Constitution is outlined in Article V of the Constitution. The Constitution has been amended 27 times since it was drafted in 1787, and the process of passing an amendment is deliberately challenging. 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 state legislatures. Once proposed, an amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50). The President does not have a constitutional role in the amendment process.

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Amendments proposed by Congress

The United States Constitution was written "to endure for ages to come", as Chief Justice John Marshall wrote in the early 1800s. The framers of the Constitution intended that it be a difficult task to amend the document, but not so difficult as to render it an inflexible instrument of government. Amending the Constitution is a two-step process: proposals must be properly adopted and ratified before becoming operative.

Congress proposes an amendment in the form of a joint resolution, which requires a two-thirds majority vote in both the House of Representatives and the Senate. The President does not have a constitutional role in the amendment process, so the joint resolution 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 OFR adds legislative history notes to the joint resolution and publishes it in slip law format, as well as assembling an information package for the States.

The Archivist of the United States then submits the proposed amendment to the States for their consideration by sending a letter of notification to each 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. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 out of 50).

Since 1789, Congress has sent 33 constitutional amendments to the states for ratification, 27 of which have been ratified. Examples of amendments proposed by Congress include the 14th Amendment, passed by Congress on June 13, 1866, and ratified on July 9, 1868, which states that all persons born or naturalized in the United States and subject to its jurisdiction are citizens with certain rights and protections. Another example is the 15th Amendment, passed by Congress on February 26, 1869, and ratified on February 3, 1870, which guarantees the right of citizens of the United States to vote regardless of race, colour, or previous condition of servitude.

Ratification by state legislatures

The process of amending the United States Constitution is outlined in Article V of the Constitution. After an amendment is proposed by Congress, it is submitted to the states for their consideration. The process of ratification by state legislatures involves the following steps:

Submission to State Legislatures

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), plays a crucial role in the ratification process. The Archivist submits the proposed amendment to the states by sending a letter of notification to each state governor, along with informational material prepared by NARA's Office of the Federal Register (OFR).

Formal Submission to State Legislatures

Upon receiving the proposed amendment, the governors then formally submit it to their respective state legislatures. It is worth noting that some state legislatures have taken action on a proposed amendment even before receiving official notification.

State Ratification and Documentation

When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state's action. This document is immediately conveyed to the Director of the Federal Register, who examines it 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.

Finalisation and Adoption

The OFR retains these documents until an amendment is adopted or fails. Once three-fourths of the states (38 out of 50) have ratified the amendment, 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 serves as official notice to Congress and the nation that the amendment process is complete.

The process of ratification by state legislatures, as outlined above, ensures that any changes to the United States Constitution are carefully considered and approved by a significant majority of states, reflecting the will of the people and upholding the integrity of the Constitution.

Amendments proposed by constitutional convention

Article V of the United States Constitution outlines two methods for proposing amendments: through Congress or a constitutional convention.

The first method, which has been used for all 33 amendments submitted for ratification, involves Congress proposing an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. This process bypasses the need for a convention and allows Congress to directly propose amendments.

The second method, which has never been used, is the convention method. This method can be initiated when two-thirds of state legislatures (34 out of 50) apply to Congress, requesting a convention for proposing amendments. This process is known as an Article V Convention, state convention, or amendatory convention.

The debate surrounding the convention method centres on the scope and control of such a convention. Some scholars argue that states can determine the scope by applying for a convention on specific subjects, while others contend that the Constitution only provides for a general convention without limitations. There is also a concern about a runaway convention, where a convention exceeds its intended scope, leading to unintended consequences and polarization in state-level politics.

Once an amendment is proposed, either by Congress or a convention, it must be ratified to become part of the Constitution. Ratification can occur through the legislatures of three-fourths of the states (38 out of 50) or by conventions in three-fourths of the states, with Congress determining the mode of ratification.

The process of amending the Constitution, as outlined in Article V, aims to balance the need for change with stability, allowing for the correction of faults while preventing extreme mutability.

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Amendments becoming part of the Constitution

The process of amending the US Constitution is a challenging and deliberate procedure, as the framers intended when they wrote the Constitution "to endure for ages to come". The Constitution has been amended only 27 times since it was drafted in 1787, including the first 10 amendments, known as the Bill of Rights, which were adopted four years later.

Amendments to the Constitution can 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 the state legislatures. However, in practice, all amendments have been proposed by Congress. The President does not have a constitutional role in the amendment process.

Once 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 submits the proposed amendment to the states for their consideration by sending a letter of notification to each governor, along with informational material.

For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50 states). When a state ratifies an amendment, it sends an original or certified copy of the state action to the Archivist, who then forwards it to the Director of the Federal Register for verification and custody. Once the required number of authenticated ratification documents is received, the Director 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 serves as official notice that the amendment process is complete.

The President's role in the amendment process

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 NARA's Office of the Federal Register (OFR) for processing and publication.

Despite this, there have been instances of Presidents playing an informal, ministerial role in the amendment process. For example, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment abolishing slavery, even though his signature was not necessary for the proposal or ratification of the amendment. Similarly, President Jimmy Carter signed a joint resolution purporting to extend the deadline for ratification of the Equal Rights Amendment, despite being advised that his signature was unnecessary.

In recent history, the signing of the certification of a new amendment 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.

Additionally, 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 later became the Bill of Rights, to the states for ratification after Congress approved them.

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