Informal Amendments: Who Proposes Changes To The Constitution?

The process of amending the US Constitution is outlined in Article V of the Constitution. This process involves two methods for proposing amendments: the first requires a two-thirds majority vote in both the House of Representatives and the Senate, while the second method involves 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 to become part of the Constitution. While there is no official informal amendment process, the Constitution has been interpreted and applied in ways that allow for changes over time.

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Two-thirds majority in Congress

The authority to amend the US Constitution is derived from Article V of the Constitution. While there is no official informal amendment process outlined in the Constitution, the Framers provided the different branches of government with the flexibility to interpret and apply the Constitution in ways that allow for change. This has resulted in an informal amendment process, which some argue is the most important aspect of the Constitution.

The Constitution provides that an amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. This is the only method for proposing amendments that has been used thus far. A two-thirds majority in Congress is required to propose an amendment, and once this is achieved, the amendment is forwarded directly to NARA's 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.

The OFR also assembles an information package for the States, which includes formal "red-line" copies of the joint resolution and copies of the joint resolution in slip law format. The proposed amendment is then submitted to the States for their consideration, with each Governor receiving a letter of notification along with the informational material prepared by the OFR. When a State ratifies a proposed amendment, it sends an original or certified copy of the State action to the Archivist, who is responsible for administering the ratification process.

The Archivist does not make any substantive determinations regarding the validity of State ratification actions but certifies the facial legal sufficiency of ratification documents. Once the OFR verifies that it has received the required number of authenticated ratification documents (three-fourths of the States or 38 out of 50), 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 serves as official notice to Congress and the Nation that the amendment process is complete.

In summary, a two-thirds majority in Congress is required to propose an informal amendment to the Constitution, initiating a process that involves the OFR, the States, and the Archivist, ultimately leading to the amendment's ratification and inclusion in the Constitution.

Two-thirds of state legislatures

The authority to amend the US Constitution is derived from Article V of the Constitution. While there is no official informal amendment process outlined in the Constitution, the Framers provided the different branches of government with the flexibility to interpret and apply the Constitution in ways that allow it to change over time.

One method by which amendments can be proposed is through a constitutional convention called for by two-thirds of the state legislatures. This method has never been used. The legislatures of two-thirds of the states can apply for a convention to propose amendments, which will be valid when ratified by three-fourths of the state legislatures or conventions.

The Archivist of the United States is responsible for administering the ratification process. Once a proposed amendment is submitted to the states, the governors formally submit it to their state legislatures or call for a convention. When a state ratifies a proposed amendment, it sends an original or certified copy of the state action to the Archivist, who then certifies that the amendment is valid and has become part of the Constitution.

While the amendment process outlined in Article V is the only formal way to change the Constitution, the interpretation and application of the Constitution are constantly evolving through an informal amendment process. This flexibility allows for the changing needs and interpretations of the different branches of government.

Ratification by three-quarters of states

The process of amending the US Constitution is outlined in Article V of the Constitution. The process begins with a proposal for an amendment, which can be made 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 a proposal is made, it is submitted to the states for their consideration.

The proposed amendment then needs to be ratified by three-quarters of the states, or 38 out of 50 states, to become part of the Constitution. This can be done through the state legislatures or ratifying conventions in three-quarters of the states. The Congress decides on the mode of ratification, and this choice holds equal validity. The vote of each state, regardless of its population or time in the Union, carries equal weight.

The process of ratification is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist notifies each state governor of the proposed amendment, who then submits it to their state legislature or convention. Once a state ratifies the amendment, it sends an original or certified copy of the action to the Archivist, who then forwards it to the Director of the Federal Register for examination and custody.

Upon receiving the required number of authenticated ratification documents, 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.

It is important to note that the President does not have a constitutional role in the amendment process, and no further action is required by Congress or any other entity once the amendment is ratified by the necessary number of states.

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The President's non-involvement

The US Constitution does not outline a role for the President in the process of amending it. The President does not have a constitutional role in the amendment process, and the joint resolution does not go to the White House for signature or approval. Instead, the resolution is forwarded directly to the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR then publishes the joint resolution in slip law format and assembles an information package for the States.

In the past, Presidents have played an informal, ministerial role in the amendment process. For example, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment to abolish slavery, even though his signature was not required for its proposal or ratification. Similarly, President Jimmy Carter signed a joint resolution to extend the deadline for the ratification of the Equal Rights Amendment, despite being advised that his signature was unnecessary. In recent history, the signing of the certification has become a ceremonial function that may be attended by the President. For instance, President Johnson signed the certifications for the 24th and 25th Amendments, and President Nixon witnessed the certification of the 26th Amendment.

The Supreme Court has affirmed the view that the President is not required for the submission of a constitutional amendment. In the 1798 case of Hollingsworth v. Virginia, Justice Samuel Chase stated that the President has nothing to do with the "proposition or adoption of amendments to the Constitution." This view was further solidified in the 1920 Hawke v. Smith case, where the Supreme Court held that the submission of a constitutional amendment did not necessitate the action of the President.

The Constitution outlines that 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 Congress proposes an amendment, the Archivist of the United States, who heads NARA, is responsible for administering the ratification process. The Archivist submits the proposed amendment to the States for their consideration, and the Governors then formally submit the amendment to their State legislatures. The Archivist has delegated many of the associated duties to the Director of the Federal Register. When a State ratifies a proposed amendment, it sends the Archivist a certified copy, which is conveyed to the Director of the Federal Register. The OFR examines the ratification documents and, if they are in order, acknowledges receipt and maintains custody. 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 part of the Constitution.

The Archivist's role

The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process when Congress proposes an amendment to the Constitution. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register.

Once the OFR verifies that it has received the required number of authenticated ratification documents (from three-fourths of the States), 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 Archivist does not make any substantive determinations regarding the validity of State ratification actions. However, their certification of the facial legal sufficiency of ratification documents is considered final and conclusive.

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