Who Decides On Constitutional Amendments?

The process of amending the United States Constitution is outlined in Article Five, which describes two methods for proposing amendments and two methods for states to ratify them. Amendments can be proposed by 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 state legislatures. To become part of the Constitution, an amendment must be ratified by three-quarters of state legislatures or by ratifying conventions in three-quarters of states. The mode of ratification is determined by Congress, and in neither process is a vote by the electorate applicable. The Archivist of the United States administers the ratification process, and an amendment becomes part of the Constitution when ratified by 38 of 50 states.

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The role of the Archivist of the United States

The Archivist of the United States is the head and chief administrator of the National Archives and Records Administration (NARA). The role was established in 1934, when the National Archives was founded as an independent federal agency by Congress. The Archivist is appointed by the President of the United States and is responsible for the supervision and direction of the National Archives.

The Archivist plays a crucial role in the constitutional amendment process. After Congress proposes an amendment, the Archivist is charged with administering the ratification process. This involves coordinating with the Director of the Federal Register to ensure the proper procedures are followed. The Archivist submits the proposed amendment to the states by sending a letter of notification to each Governor, including informational material prepared by the Office of Federal Register (OFR).

Once a state ratifies a proposed amendment, the Archivist receives an original or certified copy of the state's action. When an amendment is ratified by three-fourths of the states (38 out of 50), the Archivist issues a certificate proclaiming it duly ratified and part of the Constitution. The amendment and its certificate are then published in the Federal Register.

In addition to this, the Archivist has other important duties. They maintain custody of state ratifications of constitutional amendments and receive the original versions of all United States statutes. During United States presidential elections, the Archivist is responsible for the custody of Electoral College documents, such as certificates of ascertainment and certificates of vote.

The Archivist is supported by various specialists, technicians, and volunteers at the National Archives, all working together to preserve and provide access to the records of the United States Government.

The two-thirds majority

The United States Constitution was written to be a durable document, with a difficult and time-consuming amendment process. The process for altering the Constitution is outlined in Article V of the Constitution, which establishes two methods for proposing amendments. The first method requires a two-thirds majority vote in both the House of Representatives and the Senate, also known as a "two-thirds majority" or a "supermajority". This vote must be achieved by a quorum, or a minimum number of members present, rather than the entire membership.

While the two-thirds majority vote in Congress is a critical step, it is important to note that the amendment process does not end there. The ratification process in the states is equally important, and any proposed amendment must ultimately be approved by three-fourths of the states to become part of the Constitution. This two-step process ensures that any changes to the Constitution reflect the will of both the people's representatives in Congress and the states, safeguarding the document's integrity and longevity.

State legislatures vs state convention

The process of amending the US Constitution is outlined in Article V of the Constitution. Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a convention called for by two-thirds of state legislatures. This convention method has never been used, whereas the former method has been used to propose 33 amendments, 27 of which have been ratified.

Once an amendment is proposed, it is sent to the states for ratification. Congress determines whether the amendment will be ratified by state legislatures or state conventions. The state legislatures method is procedurally simple, requiring a resolution, memorial, or proclamation of ratification and a vote in each chamber of the state legislature. State legislatures generate more than 80% of constitutional amendments considered and approved annually.

The convention method, on the other hand, is more complicated as it is separate from the state legislature. In this method, delegates are elected using at-large statewide block voting, with candidates listed on the ballot based on their stance on the proposed amendment. A majority of delegates form a quorum, and they assemble in the chamber of the state House of Representatives. The convention method has only been used once, for the ratification of the 21st Amendment in 1933.

In four states, the legislature can be bypassed and a convention called through an initiative process. Additionally, 14 states require referendums on calling a convention to appear on the ballot at intervals ranging from 10 to 20 years. While conventions traditionally submit proposed amendments to voters for approval, this has not always been the case. For example, in the early 20th century, some Southern disenfranchisement conventions implemented changes without voter ratification.

The US Supreme Court has ruled that a popular referendum cannot substitute the legislature or a ratifying convention, nor can it approve or disapprove of their decisions on an amendment. However, the Court has broadly defined "legislature" to include "the power that makes laws," encompassing direct lawmaking by the people of the state. This interpretation creates potential questions over the role of popular referendums in state ratifying conventions.

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The ratification process

Once an amendment is proposed, it is submitted to the states for ratification. The mode of ratification is determined by Congress, and it can be through state legislatures or state conventions. To become part of the Constitution, an amendment must be ratified by three-fourths of the states, or 38 out of 50 states. This process can include a ratification deadline, though Article V does not specify this, and no amendments before the 20th century included one.

Upon receiving the proposed amendment, governors formally submit it to their state legislatures or call for a convention, depending on Congress's specifications. When a state ratifies the amendment, it sends an original or certified copy of the state action to the Archivist, who conveys it to the Director of the Federal Register. The Director examines the ratification documents for legal sufficiency and authenticity before acknowledging receipt and maintaining custody.

The role of Congress

Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA), specifically to the Office of the Federal Register (OFR) for processing and publication. The OFR plays a crucial role in facilitating the amendment process by preparing informational materials and sending them to the states for their consideration. This includes providing legislative history notes, formal copies of the joint resolution, and the statutory procedure for ratification.

Another critical aspect of Congress's role is determining the mode of ratification. Article V of the Constitution establishes two methods for states to ratify amendments: through their legislatures or by holding ratifying conventions. Congress decides which mode of ratification will be used for each individual amendment. This flexibility allows Congress to consider the specific circumstances and nature of each amendment when determining the most appropriate ratification process.

In addition to proposing amendments and determining the ratification mode, Congress also has the power to set deadlines for ratification. While Article V does not specify a time limit for ratification, Congress has included deadlines in most amendments proposed since 1917. Notably, Congress demonstrated its ability to alter these deadlines by extending the ratification period for the proposed Equal Rights Amendment in 1978. This extension was based on Congress's interpretation of its power to adjust timelines as needed.

Lastly, it is important to mention the alternative process for proposing amendments outlined in Article V. If two-thirds of state legislatures request it, Congress shall call a constitutional convention specifically for proposing amendments. This method, however, has never been utilised in the history of the United States.

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