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Ratifying Constitutional Amendments

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How to Ratify a Constitutional Amendment

There are two ways to ratify a constitutional amendment. The first way entails an amendment being approved by both houses of Congress. Then, the amendment is sent out to the states for approval. The second way is that an amendment gets approved by state legislatures. This is the short answer, but ratifying an amendment is more complex.

The First Way to Ratify a Constitutional Amendment

The first pathway to ratifying proposed amendments starts in the United States Congress. An amendment must pass the House and Senate by a two-thirds majority vote. Then Congress may send that amendment out to the states to approve or ratify it.

A number of steps need to be completed for an amendment to be ratified in this manner:

  1. Congress needs to approve the amendment by the necessary two-thirds vote noted above.
  2. A notification and accompanying information about the amendment must be sent out to governors of each state.
  3. State legislatures consider whether to approve the proposed amendment. As a side note with this step, those legislatures cannot change the wording, or the process starts again.
  4. Any proposed amendment must be ratified by three-fourths of the states. Finally, if enough states approve–and that’s a big if–the Archivist of the US government issues an official announcement that the amendment has passed and is now part of the United States Constitution.
  5. Congress can also direct the states to call conventions for the sole purpose of ratifying an amendment. This has only happened once with the 21st Amendment.

The Second Way to Ratify a Constitutional Amendment

The second way to ratify an amendment is by state constitutional conventions. States first petition Congress for approval and then call these special conventions into session. It requires 34 states to be on board with holding these conventions for this pathway to proceed.

A vote in the House of Representatives
States must petition Congress in order to call a Constitutional Convention.

This means that legislatures in two-thirds of the states must be willing to move in this direction. Conventions in three-fourths of the states must approve, or ratify, the amendment for it to pass. This amounts to 38 states total.

The Only Pathway That Amendments Have Been Approved

To date, no amendment has been approved by the second method. All of the amendments to the Constitution have been ratified by the first approach. Currently, Congress has submitted 33 proposals to the states. 27 have been ratified.

The Congress to States way of approving and ratifying amendments has thus been the operative way of updating the United States Constitution. This pathway is outlined in Article V of the Constitution. Although never fully used, Article V also specifies the second pathway. The language states that Congress will arrange for the constitutional conventions upon request by two-thirds of the state legislatures.

The 27th Amendment was the last amendment to the Constitution to be ratified. This amendment entails not allowing members of Congress to provide themselves with a raise while in their current session. It took 202 years to be ratified from when it was first submitted to the states!

Who is in Charge of Ratifying Amendments to the Constitution?

As specified in Article V of the Constitution, the Archivist of the United States assumes responsibility for the ratification process after Congress proposes an Amendment. This position is head of the National Archives and Records Administration (NARA). However, many of the actual duties have been passed on to the Director of the Federal Register.

Archives of the United States of America
The Archivist of the United States is responsible for the ratification process.

Technically speaking, through the Director, the Archivist is in charge of sending the proposed amendment to state governors. Information about the amendment is also sent by the Office of the Federal Register (OFR). State governors next officially submit the amendment to their respective legislatures.

Does the President Have a Role in Ratifying an Amendment?

The president does not have a role in ratifying an amendment. Officially, Congress proposes a certain amendment through a joint resolution. This is not a bill that needs to be approved. And, given that the president does not have a specified role in approving amendments, this joint resolution does not need the approval of the executive branch.

Joe Biden
The US President does not play a role in the ratification process.

What is an Example of an Amendment that Has Not Been Ratified?

The most notable example of an amendment that was not ratified is the Equal Rights Amendment. This amendment was first proposed way back in 1923 to provide legal equality and prevent discrimination based on sex. In 1972, it passed both houses of Congress and went to the states to be ratified.

During the 1970s, a counter movement arose in opposition to this amendment. The ERA ultimately failed to acquire the necessary three-fourths of states approval. However, from the late 20th century to last year, a renewed effort has been underway to allow for its ratification.

In fact, in late January of 2022, the ERA was ratified when 38th state Virginia approved it. So, we should be looking at the 28th Amendment. However, Congress and the Supreme Court have not officially recognized this ratification.

More specifically, the Archivist of the United States has not been willing to certify the Equal Rights Amendment. This decision is based on the ERA’s premise did not meet the initial seven-year deadline. This deadline was extended in 1982 but was also not met.

The above process thus became important in our current times. And there are currently supporters working to remove that deadline.

Ratifying Amendments

More than 11,000 amendments have been put before Congress in all US history. The first ten amendments, the Bill of Rights, mainly protect individual rights. Other crucial amendments that protect rights include the 14th Amendment, which confirmed the basis of citizenship and increased federal oversight over areas such as equal protection and due process of the law.

To recap, 33 amendments went to the states to be ratified, with 27 getting the required three-fourths approval to become part of the Constitution. That may change soon to become 28, but we will have to wait and see.

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