|
The Constitutional Amendment Process
The authority to amend the Constitution
of the United States is derived from Article V
of the Constitution. After Congress proposes an amendment, the Archivist
of the United States, who heads the National Archives and Records Administration
(NARA), is charged with responsibility for administering the ratification process
under the provisions of 1
U.S.C. 106b. The Archivist has delegated many of the ministerial duties
associated with this function to the Director of the Federal Register. Neither
Article V of the Constitution nor section 106b describe the ratification process
in detail. The Archivist and the Director of the Federal Register follow procedures
and customs established by the Secretary of State, who performed these duties
until 1950, and the Administrator of General Services, who served in this capacity
until NARA assumed responsibility as an independent agency in 1985.
The Constitution provides that an amendment may be proposed either by the
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. None of the 27 amendments to the Constitution have been
proposed by constitutional convention. The Congress proposes an amendment in
the form of a joint resolution. Since the President does not have a
constitutional role in the amendment process, the joint resolution does not go
to the White House for signature or approval. The original document 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, copies of the joint resolution in slip law format, and the
statutory procedure for ratification under 1 U.S.C. 106b.
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. In the past, some State
legislatures have not waited to receive official notice before taking action on
a proposed amendment. 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 Director of the Federal Register. The OFR examines
ratification documents for facial legal sufficiency and an authenticating
signature. If the documents are found to be in good 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.
A proposed amendment becomes part of the Constitution as soon as it is
ratified by three-fourths of the States (38 of 50 States). When 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 to the Nation that the amendment process has
been completed.
In a few instances, States have sent official documents to NARA to record
the rejection of an amendment or the rescission of a prior ratification. The
Archivist does not make any substantive determinations as to the validity of
State ratification actions, but it has been established that 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, which may include the President.
President Johnson signed the certifications for the 24th and 25th Amendments as
a witness, and President Nixon similarly witnessed the certification of the 26th
Amendment along with three young scholars. On May 18, 1992, the Archivist
performed the duties of the certifying official for the first time to recognize
the ratification of the 27th Amendment, and the Director of the Federal Register
signed the certification as a witness.
Links to Constitutional Amendment Information in the Treasures of Congress Exhibit
|
