How Do We Bring About Real Change in the Government?

By Scott Robelen

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress . . .”

Article V of the U.S. Constitution (above) 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 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. The OFR also assembles an information package for the states that 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 their 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.

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