| 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
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