Authority to Amend the Constitution

Article V of the U.S. Constitution outlines how to propose and ratify changes to our founding document. It's not a simple process.

To propose an amendment via Congress, a two-thirds supermajority in both the House and Senate is required. That's 67 out of 100 Senators and 290 out of 435 Representatives. Once approved, the proposed amendment goes to the states.

Three-fourths, or 38 out of 50 states, must agree to ratify the amendment. It's an up-or-down vote with no changes allowed. Once ratified, the amendment becomes part of the Constitution.

The Archivist of the United States manages the administrative process. They send notifications to state Governors, who present it to their legislatures. States send back certified copies of their decisions. If 38 states ratify, the Archivist certifies and publishes the amendment.

There's also the option of calling for a constitutional convention. Two-thirds of state legislatures (34 out of 50 states) must agree to this. It's never happened before. Any amendments proposed by such a convention would still need ratification by 38 states.

The Founding Fathers made changing the Constitution difficult to avoid hasty alterations. It's a safeguard against fleeting political trends.

Amendments Proposed by Congress

When Congress proposes an amendment, it needs a two-thirds vote in both chambers. Once passed, the Archivist of the United States notifies all 50 state Governors, who inform their legislatures.

State legislatures can only vote yes or no on the amendment as written. Three-fourths of states (38 out of 50) must ratify for the amendment to pass. Each state sends a certified copy of their ratification to the Archivist.

The Archivist's office tracks and verifies these ratifications. When 38 states have ratified, the Director of the Federal Register drafts a formal proclamation, which the Archivist signs.

This certification is published in the Federal Register and U.S. Statutes at Large, officially notifying Congress and the nation that the amendment is now part of the Constitution.

Steps in the Congressional Amendment Process:

1. Two-thirds vote in both House and Senate
2. Archivist notifies state Governors
3. State legislatures vote (38 needed to ratify)
4. States send certified copies to Archivist
5. Archivist certifies and publishes amendment

Amendment by Constitutional Convention

Article V allows for an alternative method of amending the Constitution: a constitutional convention called by two-thirds of state legislatures (34 out of 50 states). This has never happened.

If 34 states were to call for a convention, they would need to agree on identical language in their applications. Congress might attempt to set guidelines, but the rules for such a convention are unclear.

Any amendments proposed by the convention would still need ratification by 38 states. Procedural uncertainties exist, such as what qualifies as an official state application and whether applications can be rescinded.

There's also concern about a potential "runaway" convention that could propose unrelated amendments. The mere threat of a convention might influence Congress to act preemptively, as happened with the 17th Amendment.¹

While the idea of a convention resurfaces periodically for various causes, getting 34 states to agree remains a significant challenge.

Historical Context and Supreme Court Decisions

Several Supreme Court cases have shaped our understanding of Article V:

• Hawke v. Smith (1920): Affirmed that state legislatures, not referendums, have the final say in ratifying amendments. The Court ruled that Article V's process preempts state-level attempts to override legislative ratifications.
• The National Prohibition Cases (1920): Confirmed that regulating alcohol was a valid subject for constitutional amendments.
• U.S. Term Limits v. Thornton (1995): Prevented states from adding extra qualifications for federal officeholders. The Court ruled that only a proper Article V amendment could institute term limits, not individual state actions.

These cases emphasize the strict nature of the amendment process, demonstrating that the Supreme Court consistently upholds the Founders' intent to protect the Constitution from impulsive changes.

"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning."²

Current Efforts and Popular Proposals

Modern constitutional amendment efforts focus on three main areas:

• Term Limits for Congress
• Balanced Federal Budget
• Campaign Finance Reform

Term Limits:

A September 2023 Pew Research Center survey revealed that 87% of Americans support congressional term limits, with broad bipartisan agreement.¹ However, recent attempts to pass such amendments have faced challenges. For example:

In September 2023, a House Judiciary Committee vote rejected a term limits proposal by a narrow margin of 19-17.

Balanced Budget:

Proponents argue for fiscal responsibility, citing alarming projections:

• Deficits expected to exceed 100% of GDP by 2054²
• Public opinion generally supports this idea

However, critics argue it could hamper emergency responses to crises like wars or pandemics.

Campaign Finance Reform:

There's significant public support for regulating campaign spending, especially in the wake of the Citizens United decision. However, amending the Constitution to address this issue faces substantial challenges:

• Legal complexities
• Philosophical debates on free speech
• Questions about the nature of political contributions

These amendment efforts face considerable hurdles due to the intentionally difficult process designed by the Founding Fathers to protect the Constitution from hasty changes.

The Constitution's amendment process reflects the Founders' intent to:

1. Preserve the document's core principles
2. Allow for carefully considered changes

This approach ensures only broadly supported amendments succeed, maintaining the Constitution's integrity for future generations. As James Madison wrote in Federalist No. 43:

"The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults."³