Federal Law Changes: Amendments Or Adaptations?

Changes to federal laws can become amendments, but the process is complex and stringent. In the US, amendments are made to existing constitutions and statutes and are also commonly made to bills during their passage through a legislature. The US Constitution, for instance, has a detailed process for amendments outlined in Article V, which includes proposals by Congress or a constitutional convention, ratification by three-fourths of the states, and administrative duties carried out by the Archivist of the United States. The process for amending federal rules typically takes about three years and involves multiple stages of review and approval. While the US Constitution has a well-defined amendment process, other countries have their own unique procedures, which can vary in complexity and requirements.

The process of amending federal laws

Step 1: Proposal

The process begins with a proposal for a change. This can come from two sources. Firstly, Congress can propose an amendment 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, although this has never happened before.

Step 2: Advisory Committee and Publication

In the first year of the process, a proposed rule change is considered by an advisory committee. It is then published for comment as part of a document called a Preliminary Draft.

Step 3: Standing Committee and Judicial Conference

In the second year, the proposed amendment is considered by the Committee on Rules of Practice and Procedure (the "Standing Committee") and the Judicial Conference.

Step 4: Supreme Court and Congress

In the third and final year, the amendment is reviewed by the Supreme Court and Congress.

Step 5: Ratification by States

Once the amendment has been approved by Congress, it is sent to the states for ratification. The amendment must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution.

Step 6: Certification

When the required number of states has ratified the amendment, the Director of the Federal Register drafts a formal proclamation for the Archivist of the United States to certify. This certification confirms that the amendment is valid and has become an official part of the Constitution.

Step 7: Publication and Notification

The certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notification to Congress and the nation that the amendment process is complete.

The role of Congress in proposing amendments

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. Congress plays a crucial role in proposing amendments, and there are two methods by which they can do so.

The first method requires a two-thirds majority vote in both the House of Representatives and the Senate. This means that two-thirds of the Members present in each chamber must vote in favour of the proposed amendment. Since the founding of the United States, Congress has used this procedure to propose thirty-three amendments, which were then sent to the states for potential ratification. It is important to note that the President does not have a constitutional role in this process, and the joint resolution does not require their signature or approval.

The second method, which has never been used, involves Congress calling a constitutional convention upon the request of two-thirds of the states. This method has been the subject of scholarly debate, with questions surrounding the level of control Congress would have over the convention and whether they must call one when the requisite number of state applications is reached.

Once an amendment is proposed by Congress, it is forwarded to the National Archives and Records Administration (NARA) for processing and publication. The Archivist of the United States, who heads NARA, 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, who adds legislative history notes to the joint resolution and publishes it in slip law format.

The proposed amendment is then submitted to the states for their consideration. When a state ratifies a proposed amendment, it sends an original or certified copy of the action to the Director of the Federal Register. A proposed amendment becomes part of the Constitution once it is ratified by three-fourths of the states (38 out of 50). The Director of the Federal Register examines the ratification documents for authenticity and legal sufficiency. Once the required number of authenticated ratification documents is reached, a formal proclamation is drafted for the Archivist to certify that the amendment is valid and has become part of the Constitution.

Ratification by state legislatures or conventions

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. Amendments can be proposed either 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 by Congress, it is sent to each state's governor, who then submits it to their state legislature or calls 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).

State ratifying conventions are one of the two methods established by Article V for ratifying proposed amendments. This method has only been used once, for the ratification of the 21st Amendment in 1933, which repealed the 18th Amendment.

The convention method of ratification is an alternative route to considering the pros and cons of a particular proposed amendment. It allows for the potential bypassing of state legislatures in the ratification process and more closely resembles a one-state, one-vote national referendum. This method may be preferred when an amendment implicates individual rights and morals, as it involves specially elected state delegates rather than state legislators, potentially increasing the chances of successful ratification by removing political pressure.

The specific procedures for convening ratifying conventions, selecting delegates, and conducting the proceedings are not outlined in the Constitution or by Supreme Court precedent. The process can vary from state to state. For example, in Delaware, the governor announces an election of delegates, with the latest date being the next general election held at least three months after the amendment is proposed. The convention consists of 17 members, with a specific distribution among the counties. Candidates are nominated by petition, and delegates are elected using at-large statewide block voting.

In summary, ratification by state legislatures or conventions is a crucial step in the process of amending the U.S. Constitution. While amendments are typically proposed by Congress, state legislatures or conventions play a key role in approving and enacting these changes, with the convention method offering a unique approach that bypasses the state legislature and more directly reflects the sentiments of registered voters.

The President's role in the amendment process

The Constitution does not outline a specific role for the President in the amendment process. Historically, some Presidents have played a role in transmitting proposed amendments to the states for 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. Additionally, President Abraham Lincoln signed the joint resolution proposing the Thirteenth Amendment to abolish slavery, even though his signature was not necessary.

The Supreme Court has affirmed that the President has no formal constitutional role in the amendment process. 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 supported in the 1920 case of Hawke v. Smith, where the Court characterised its earlier decision as having settled that the submission of a constitutional amendment did not require the President's action.

Despite the absence of a formal role, in recent history, the President has been included in the ceremonial function of signing the certification of a ratified amendment. For example, President Johnson signed the certifications for the 24th and 25th Amendments, and President Nixon witnessed the certification of the 26th Amendment.

The finalisation and certification of amendments

Once a proposed amendment has been thoroughly discussed and agreed upon by the relevant legislative bodies, it enters the finalisation and certification phase. This phase is a critical juncture where the proposed amendment is scrutinised for legal compliance, feasibility, and potential impact. Here is a step-by-step overview of this crucial phase:

Submission and Review: After an amendment is proposed, it is submitted to the relevant authorities for review. In the United States, for instance, the Archivist of the United States plays a pivotal role in administering the ratification process. The Archivist, along with the Director of the Federal Register, follows established procedures and customs to ensure a standardised process.

Notification and Consideration: The proposed amendment is then submitted to the states for their consideration. Each state's governor receives a letter of notification, along with informational material, to make them aware of the proposed changes. The governors then formally submit the amendment to their state legislatures, where it is discussed and voted on.

Ratification and Authentication: For an amendment to be ratified, it must receive a specified number of approvals from the state legislatures, as defined by the constitution or relevant laws. In the US, this threshold is currently set at three-fourths of the states (38 out of 50). Once a state ratifies the proposed amendment, it sends an original or certified copy of the state's action to the designated authority, such as the Archivist or the Director of the Federal Register.

Verification and Certification: Upon receiving the required number of authenticated ratification documents, the finalisation process nears completion. The designated authority, such as the Archivist, drafts a formal proclamation certifying that the amendment is valid and has become an integral part of the constitution or relevant legislation. This certification is a formal acknowledgement that the amendment has satisfied all the necessary requirements and is now legally binding.

Publication and Notification: The certification of an amendment is then published in official gazettes, such as the Federal Register and U.S. Statutes at Large, serving as an official notification to the government, the nation, and all relevant stakeholders that the amendment process has been successfully concluded. This publication is a critical step in ensuring transparency and keeping the public informed about the changes to the law.

Ceremonial Functions: In some cases, the signing of the certification has evolved into a ceremonial function, with various dignitaries, including the President, witnessing the occasion. This adds a sense of solemnity and significance to the amendment process, underscoring its importance in the nation's legal and democratic framework.

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