Amendments To Laws: The Process Explained

The process of amending the US Constitution is a complex and challenging task, as the framers intended when it was drafted in 1787. Since then, the Constitution has been amended only 27 times, including the first 10 amendments, known as the Bill of Rights. Amending the Constitution 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. The proposed amendment must then be ratified by three-fourths of the states or three-fourths of the conventions in each state. This process ensures that any changes to the Constitution are carefully considered and have a broad consensus of support across the country.

Two-thirds majority in Congress

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. This article establishes two methods for proposing amendments. The first method, which has been used for all 27 amendments, 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 house must vote in favour of the proposed amendment.

The second method, which has never been used, is for Congress to call a constitutional convention upon the request of two-thirds of the states. This method is the subject of ongoing debate among scholars, who discuss issues such as whether Congress must call a convention when the requisite number of state applications is reached, whether there should be any limitations on the convention, and the extent of Congress's control over the convention's procedures.

The two-thirds majority vote in Congress is an important step in the amendment process, as it allows for a proposed amendment to be sent to the states for potential ratification. This vote ensures that there is significant support for the amendment among lawmakers and represents a crucial stage in the process of amending the Constitution.

Once a proposed amendment has been passed by a two-thirds majority in both houses of Congress, it is then sent to the states for ratification. The amendment must be ratified by three-fourths of the state legislatures or three-fourths of conventions called in each state for ratification. This step ensures that any changes to the Constitution are supported by a broad majority of both lawmakers and the states.

Ratification by three-fourths of the states

Once an amendment has been proposed, it must be ratified by either three-fourths of the state legislatures or three-fourths of conventions called in each state for ratification. This decision is made by Congress, which has only specified the second mode of amendment once, for the Twenty-First Amendment, which repealed Prohibition.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 out of 50). When the required number of authenticated ratification documents has been received, the Director of the Federal Register drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is then published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process has been completed.

In recent history, the signing of the certification has become a ceremonial function attended by dignitaries, including the President.

The role of the Archivist of the United States

The Archivist of the United States is the head of the National Archives and Records Administration (NARA) and is appointed by the President of the United States with the advice and consent of the Senate. The Archivist is responsible for the supervision and direction of the National Archives, including the preservation and administration of records.

The Archivist's role in the process of a proposed amendment becoming a law is as follows:

• After Congress proposes an amendment, the Archivist is charged with 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.
• When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action.
• Once an amendment is ratified by three-fourths of the states (38 out of 50), the Archivist certifies 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.

In addition to their role in the amendment process, Archivists of the United States are responsible for:

• Safeguarding and making available for study all permanently valuable records of the federal government, including the original Declaration of Independence, Constitution, and Bill of Rights.
• Maintaining custody of state ratifications of amendments to the Constitution.
• Receiving the original version of all statutes of the United States once enacted, whether signed into law by the president or passed by Congress over a presidential veto.
• Publishing documents of the Executive Branch, such as presidential proclamations and executive orders, and retaining custody of the original signed documents.
• Preserving presidential papers and materials.
• Performing duties related to the custody of Electoral College documents during United States presidential elections.

The role of the Director of the Federal Register

The process of amending the United States Constitution is outlined in Article V of the Constitution. This process involves proposing an amendment and subsequent ratification.

The Director of the Federal Register plays a crucial role in this process. The Director of the Federal Register is responsible for carrying out many of the ministerial duties associated with the amendment process.

Once an amendment is proposed by Congress, it is forwarded directly to the Office of the Federal Register (OFR) for processing and publication. The OFR, under the direction of the Director, 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, copies in slip law format, and the statutory procedure for ratification.

When a state ratifies a proposed amendment, it sends an original or certified copy of the state's action to the Archivist of the United States, who then immediately conveys it to the Director of the Federal Register. The OFR, under the direction of the Director, examines the 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 until an amendment is adopted or fails. At this point, the OFR transfers the records to the National Archives for preservation.

The Director of the Federal Register plays a key role in ensuring the smooth execution of the amendment process, from the initial publication of the proposed amendment to the preservation of records once the process is complete.

The role of the President

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 the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR then 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, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b. The President's signature or approval is not required for the amendment to proceed.

However, in recent history, the signing of the certification of an amendment has become a ceremonial function that the President may attend. 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. While not a constitutional requirement, the President's presence at this ceremonial function adds a layer of formality and significance to the amendment process.

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