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 theCongress with a two-thirds majority vote in both the House of Representativesand the Senate or by a constitutional convention called for by two-thirds of theState legislatures. None of the 27 amendments to the Constitution have beenproposed by constitutional convention. The Congress proposes an amendment inthe form of a joint resolution. Since the President does not have aconstitutional role in the amendment process, the joint resolution does not goto the White House for signature or approval. The original document isforwarded directly to NARA's Office of the Federal Register (OFR) for processingand publication. The OFR adds legislative history notes to the joint resolutionand publishes it in slip law format. The OFR also assembles an informationpackage for the States which includes formal "red-line" copies of thejoint resolution, copies of the joint resolution in slip law format, and thestatutory procedure for ratification under 1 U.S.C. 106b.
The Archivist submits the proposed amendment to the States for theirconsideration by sending a letter of notification to each Governor along withthe informational material prepared by the OFR. The Governors then formallysubmit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified. In the past, some Statelegislatures have not waited to receive official notice before taking action ona proposed amendment. When a State ratifies a proposed amendment, it sends theArchivist an original or certified copy of the State action, which isimmediately conveyed to the Director of the Federal Register. The OFR examinesratification documents for facial legal sufficiency and an authenticatingsignature. If the documents are found to be in good order, the Directoracknowledges receipt and maintains custody of them. The OFR retains thesedocuments until an amendment is adopted or fails, and then transfers the recordsto the National Archives for preservation.
A proposed amendment becomes part of the Constitution as soon as it isratified by three-fourths of the States (38 of 50 States). When the OFRverifies that it has received the required number of authenticated ratificationdocuments, it drafts a formal proclamation for the Archivist to certify that theamendment is valid and has become part of the Constitution. This certificationis published in the Federal Register and U.S. Statutes at Large and serves asofficial notice to the Congress and to the Nation that the amendment process hasbeen completed.
In a few instances, States have sent official documents to NARA to recordthe rejection of an amendment or the rescission of a prior ratification. TheArchivist does not make any substantive determinations as to the validity ofState ratification actions, but it has been established that the Archivist'scertification of the facial legal sufficiency of ratification documents is finaland conclusive.
In recent history, the signing of the certification has become a ceremonialfunction attended by various dignitaries, which may include the President.President Johnson signed the certifications for the 24th and 25th Amendments asa witness, and President Nixon similarly witnessed the certification of the 26thAmendment along with three young scholars. On May 18, 1992, the Archivistperformed the duties of the certifying official for the first time to recognizethe ratification of the 27th Amendment, and the Director of the Federal Registersigned the certification as a witness.
Links to Constitutional Amendment Information in the Treasures of Congress Exhibit
