Skip to comments.The Constitutional Amendment Process
Posted on 04/11/2014 3:35:48 PM PDT by Jacquerie
I post the following to address a common concern of Freepers who oppose an Article V state convention.
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.
Article V ping!
The current administration thinks it can create an Amendment by Executive Order.
And this SCOTUS is 50/50 on allowing it!
I’m all in.
Deal the cards.
The Rules Committee has a slight back-up in bills, but they understand the importance of passing the bill to the Senate Floor as soon as possible.
SCR 1016 passed the Rules Committee with bi-partisan support. The next step is the House Floor and then the Senate Floor. The Arizona legislators are hoping to get out of session early this year, so they are motivated to push things through quickly.
The hearing went well this week, one of the committee members was unable to attend so the vote has been delayed.
The House Floor did not hear the resolution today,
but it is tentatively on the schedule for the 21st.
Waiting on the vote count from the General Laws Committee before moving on to the next committee.
The second Judiciary Subcommittee hearing was rescheduled to later this month.
The critical statement:
“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.”
I read this as rescission of prior ratification have no legal basis. Once a state ratifies, and that ratification is certified, it is permanent.
This being the case, if Illinois current resolution passes, it most likely means that an Article V convention will be called.
Importantly, wherever the convention is held will have to have the tightest security the US has ever seen for such an event. Every spy on the planet, every terrorist, every corporation, and a whole bunch of others will do anything to penetrate it.
There was a good reason for this.
When the Constitution was ratified, several states said that their ratifications were contingent upon a bill of rights being inserted into the new Constitution as amendments. Madison pointed out that ratification was an up-or-down act not dependent upon any conditions, but it was clear that a bill of rights was going to be necessary. Elected as first Speaker of the House, Madison was a bit slow in generating amendments, but when two states sent petitions to Congress for a general Amendments Convention, Madison put quill pen to hemp paper and generated 12 proposed amendments, which were slam-dunked through Congress. Ten of those 12 were slam-dunked through the ratification process and became our Bill of Rights.
Two of those amendment proposals sat out there without sufficient ratifications by the states to get into the Constitution.
In 1983, Gregory Watson, a legislative assistant to a Texas state senator, did some research into what amendments might be out there waiting for ratification, when he happened on Madisons 12th proposal, known as the Salary Grab Amendment. Resigning from his job, he went around the country holding seminars for state legislators about this particular amendment. As a result, ratifications began trickling into the Archivists office.
In 1992, the 38th ratification hit the Archivists office, and the Archivist sent a memo to Congress that their power had just been radically curtailed. Unfortunately, the Archivist had failed to give Congress a heads-up as ratifications began to reach the critical number, and as a result Congress was blind-sided by the 38th ratification.
Congressional leadership was outraged and sent the Archivist a memo challenging the earliest ratifications as stale and stating that those states needed to ratify the amendment all over. The reasoning was that since 1918 Congress had placed seven year windows on ratifications, and 203 year old ratifications could not be valid.
The Archivist cited every Supreme Court decision on the amendatory process in a masterly memo, and Congress found itself in the position of having to sue in federal court to throw the 27th Amendment out of the Constitution. The year 1992 was an election year with a strong anti-incumbent tide flowing, and Congress decided that discretion was the better part of valor. There would be no lawsuit. Rather than fight in court, Congress accepted the 27th Amendment into the Constitution with a lot of grumbling and no enthusiasm.
The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.
There are two ways to propose an amendment to the Constitution.
Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.
Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:
The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.
Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.
Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.
I have two reference works for those interested.
The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.
The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.
With respect to this particular set of petitions for an Amendments Convention, this post covers a lot of legal ground.
Fascinating. Your post illustrates the power v. power aspect of our government. Yes, there is supreme constitutional law, but if there is no organized interest, hopefully with judicial standing, to defend and demand implementation of each and every clause, . . . we know what happens.
<>Once a state ratifies, and that ratification is certified, it is permanent.<>
It appears that way.
There is a chance IL could pass the balanced budget amendment?
The contretemps over the 27th Amendment in 1992 shows that senators and congressmen do not want to look like opponents of the Constitution and the amendatory process in an election year.
Click on that link in Post #8. The ALEC document agrees with your position, but the ABA document does not. It’s not settled law yet.
The COS movement is gaining momentum! The next assembly of the states will be June 12th. Depending on the outcome and press release, it could have major impact not only for our constitution, but for the 2014 and 2016 elections as well.
After 225 years, one would think all the points you brought up would have been statutorily settled. No such luck.
I’m not all confident congress will allow a convention. I doubt they would refuse to call a convention after 34 applications, because I don’t put it beyond congress to threaten, bribe, extort . . . do what it takes to prevent 34 applications from happening.
Congress won't bribe or threaten, but they will try to use the unwritten Single Subject Standard and Contemporaneousness Standard to sandbag the effort. Those will probably have to be litigated unless there are enough votes in Congress among conservatives to block such interference.
State Legislature Method, or
the State Ratifying Convention Method.
This is the most important part of your post. Far too many people think of an Article V Convention as a declaration of martial law. Such a convention can only propose amendments. It can not put anything into effect. Even if such a convention tried to unilaterally impose an amendment or new constitution, how would they do so? Would the military back the convention's clearly illegal act? Would the federal and State governments acquiesce? Would the People not fight the convention's illegal act? There a much greater and realistic chance that an Article V Convention would be too divided to propose anything than that it would be unified enough to attempt a coup.
“Stroke of the pen. Law of the Land. Kinda cool.”