Amendment+Process

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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.

There are essentially two ways [|spelled out] in the Constitution for how to propose an amendment. One has never been used. The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as [|the 27th], Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the [|21st] and [|22nd]). The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about. Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the [|Ratification Convention Page] for a discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the [|21st], specified a convention. In any case, passage by the legislature or convention is by simple majority. The Constitution, then, spells out four paths for an amendment: It is interesting to note that at no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in //Hollingsworth v Virginia// (3 US 378 [1798]):
 * Proposal by convention of states, ratification by state conventions (never used)
 * Proposal by convention of states, ratification by state legislatures (never used)
 * Proposal by Congress, ratification by state conventions (used once)
 * Proposal by Congress, ratification by state legislatures (used all other times)

Script:

The process of making an amendment to the Constitution is very long and tedious. To demonstrate the process, we will propose an amendment to the constitution and pretend that it gets ratified, after going through all of the different approvals and proofings. 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. The Congress proposes an amendment in the form of a joint resolution. The original document is then 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. Then a letter of notification is sent to each Governor along with the informational material prepared by the OFR. Then the Governors formally submit the amendment to their State legislatures. When a state ratifies a proposed amendment, the ratification document is immediately conveyed to the Director of the OFR. The OFR examines the document to make sure it is sufficient and to make sure it has an authenticating signature. If the documents are found to be in good order the OFR retains the document until the 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. When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation 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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