Omar Bennett
The Constitution has been amended only 27 times since 1787, and the process is deliberately difficult and time-consuming. Article V of the Constitution outlines the authority to amend it, and there are several methods for proposing and ratifying amendments. The first method requires a two-thirds majority vote in both the House of Representatives and the Senate, or a constitutional convention called for by two-thirds of the state legislatures. Amendments must then be ratified by three-quarters of the states to become part of the Constitution. The second method, which has never been used, would allow states to bypass Congress and propose amendments directly. This could be done through a convention or by a majority of voters, depending on the state. The number of proposed amendments is not uncommon, but political fixes do not necessarily belong in the Constitution.
| Characteristics | Values |
|---|---|
| Number of amendments to the US Constitution since 1787 | 27 |
| Number of amendments to the Indian Constitution since 1950 | 106 |
| Number of proposed amendments to the Australian Constitution since 1906 | 44 |
| Number of successful amendments out of the 44 proposed in Australia | 8 |
| Minimum votes required to pass an amendment in California | Two-thirds majority |
| Minimum states required to ratify an amendment in the US | 38 out of 50 |
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What You'll Learn
The role of Congress in proposing amendments
The process of amending the Constitution of the United States is derived from Article V of the Constitution. The Congress plays a crucial role in proposing amendments, which can have a significant impact on the rights and lives of all Americans.
The Congress has the authority to propose amendments to the Constitution whenever two-thirds of both Houses deem it necessary. This means that a two-thirds majority vote is required in both the House of Representatives and the Senate for an amendment to be proposed. At least 11,000 proposals to amend the Constitution have been introduced in Congress, but only 33 have been proposed to the states for ratification, demonstrating the high bar for proposing amendments.
The process of proposing an amendment by Congress takes the form of a joint resolution. This means that the President does not have a constitutional role in this process, and the joint resolution does not require their 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. Additionally, the OFR assembles an information package for the States, which includes formal "red-line" copies of the joint resolution and other relevant documents.
Once the proposed amendment is received by the OFR, 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 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. It is important to note that Congress has the discretion to choose the mode of ratification.
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The convention method
There are also concerns about the potential unintended consequences of an Article V convention. James Madison, often referred to as the "Father of the Constitution," questioned how such a convention would be formed and conduct its proceedings. Law Professor Emeritus William A. Woodruff has also expressed caution, urging state legislators to carefully consider the potential consequences of an Article V convention before voting in favour of it.
Despite never being used at the federal level, the convention method remains a valid option for proposing amendments according to the US Constitution.
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Ratification by state legislatures
The process of amending the US Constitution is outlined in Article V of the Constitution. While the President does not have a constitutional role in the amendment process, the authority to amend the Constitution lies with Congress, which proposes an amendment with a two-thirds majority vote in both the House of Representatives and the Senate. Once an amendment is proposed, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process.
The process of ratification by state legislatures involves the following steps:
Submission to State Legislatures
The proposed amendment is submitted to the state legislatures by the governors, who receive a letter of notification from the Archivist along with informational material prepared by NARA's Office of the Federal Register (OFR). The governors then formally submit the amendment to their respective state legislatures. In some cases, a state may call for a convention, depending on the specifications provided by Congress.
State Ratification
When a state ratifies a proposed amendment, it sends an original or certified copy of the state's action to the Archivist, who then conveys it to the Director of the Federal Register. The OFR examines the ratification documents to ensure they meet the legal requirements and have authenticating signatures. If the documents are in order, the Director acknowledges receipt and maintains custody of them.
Adoption or Rejection
The OFR retains the documents until the amendment is either adopted or fails. Once an amendment is ratified by three-fourths of the states (38 out of 50), it becomes part of the Constitution. The OFR then drafts a formal proclamation for the Archivist to certify the validity of the amendment, which is published in the Federal Register and U.S. Statutes at Large, serving as official notification of the completed amendment process.
State-Specific Requirements
The specific requirements for ratifying an amendment can vary by state. For example, in Alabama, a 60% vote is required from both chambers of the State Legislature to place a constitutional amendment on the ballot, while in California, two-thirds of each chamber of the State Legislature must propose an amendment before it goes on a statewide ballot for ratification or rejection by the state's voters. In Minnesota, there are two mechanisms for amending the state constitution, either through a legislative process or a state constitutional convention, with different voting thresholds for ratification.
The process of ratification by state legislatures ensures that any amendments to the US Constitution are carefully considered and approved by a significant majority of states, reflecting the diverse interests and perspectives across the country.
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The President's role in the amendment process
The President of the United States 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, 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, which abolished slavery. President Jimmy Carter also 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 an 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.
Despite these examples, the Supreme Court has articulated the Judicial Branch's understanding that the President has no formal constitutional role in the amendment process.
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The Archivist's role in the amendment process
The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process of amending the Constitution. The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register (OFR).
Once Congress proposes an amendment, the Archivist and the OFR follow procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties. 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 OFR. The OFR examines 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.
The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation. 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 and serves as official notice to the Congress and the Nation that the amendment process has been completed.
The Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, including the President.
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Frequently asked questions
There are multiple methods to amend the US Constitution to ensure that the process is thorough and that the federal government cannot act in its own interests.
This is the only method that has been used to amend the Constitution so far. It requires two-thirds of each House of Congress to propose an amendment, which is then sent to the states for ratification.
The convention method is a way to propose amendments that bypass the federal government. Two-thirds of state legislatures can apply for Congress to call a convention that decides whether to propose an amendment. However, this method has never been used due to the fear of a "runaway convention", where amendments are proposed on matters beyond the scope of the original application.
This is the method used for all but one amendment. It requires three-quarters of state legislatures to ratify an amendment for it to become part of the Constitution.
This method was used for the Twenty-first Amendment in 1933. It requires three-quarters of state ratifying conventions to approve a proposed amendment.
