Appendix 2 – Chapter 17 Additional Detail

[return to Chapter 17]

Two methods of passing amendments

There are two methods of proposing amendments to the Constitution. [1]

1. Congress may propose an amendment.

2. The states may propose an amendment at a constitutional convention.

Method 1. Amendments proposed by Congress

Amending the Constitution through Congress requires the following steps.

1. Congressional action is planned beforehand by the majority leaders in each chamber. The majority leaders set the agenda and must support a bill for it to continue. The majority leaders are elected by the members of their party in a meeting called a "caucus." Independent members from minority parties choose with which of the two major parties they wish to caucus and they have an equal vote in selecting the leader. [2] Our members would be the majority and would elect leaders from our members in each chamber.

2. The amendment bill is submitted, is given a number, and is assigned to a committee. The committee chair decides if the bill will be considered. The committee may keep or change the wording or table (kill) the bill. If the committee supports the bill, it returns it to the full chamber for debate or approval. As the elected leader of the chamber, our member would appoint the committee chairs to ensure the bill was considered just as the chamber leaders do now.

3. In the chamber, the bill can be debated, altered, and passed, or not passed. As amendments must be ratified (approved) by the states, Congress can set a time limit for the ratification in the bill or in the instructions for the bill if they desire, though the specific time limit is arbitrary and is optional. The 27th amendment took over 200 years to be approved! Our committee chair would pass the amendment with no time limit and with favorable instructions.

4. After both chambers pass the bill, if their versions of the bill are different, they are negotiated through a joint conference committee, which creates a joint resolution. Afterward, each chamber must pass the joint resolution by a two-thirds vote for an amendment. The President has no veto power and is not part of the amendment process. We must elect at least two-thirds of the seats in each chamber to pass the amendment.

5. If the amendment passes, the national archivist notifies the governor of each state that the amendment must be ratified and sends them a copy.

6. The amendment must be approved by three-fourths (38 out of 50) of the states to become part of the constitution. Congress can choose one of two methods for ratifying an amendment. 1) The ratification can be by majority vote of both chambers of the state legislatures. 2) The ratification can be by ratifying conventions in each state. The exact process for such conventions would need to be stated by Congress. In either case, three-fourths of the states must approve the amendment. Governors are not part of the process, though they may optionally sign the ratification bill if it passes. [3] We must elect a majority of the legislators in both chambers in 38 or more states to ratify the amendment.

7. The Office of the Federal Register at the National Archives keeps track of the state ratifications. The state legislatures must return signed forms as proof of ratification.

8. When sufficient states ratify the amendment, the archivist of the United States announces the new amendment to the U.S. Constitution. Certification is published immediately in the Federal Register and ultimately in the United States Statutes-at-Large.

Method 2. Amendments proposed by the states

The Constitution provides a method for the states to bypass Congress. The legislatures of two-thirds of the states (34 out of the 50) can petition Congress to call a constitutional convention where amendments may be proposed. The only previous constitutional convention was the original wherein our current Constitution was created. A constitutional convention has been attempted multiple times but it has never been supported by enough states. It is unclear exactly how it would be convened.

Assuming enough states called for a constitutional convention, it would be up to Congress to schedule the convention and to decide how delegates from each state would be chosen. For example, Congress would decide if the number of delegates from a state were proportional to its population or an equal number per state. It would decide if the delegates were chosen by the state legislatures or if they were elected by the people of the state.

Once the constitutional convention was convened, the only guide we have for how it would be run is the original Constitutional Convention. The delegates could propose and pass any amendment by majority vote. However, there would be no guarantees. If the delegates were controlled by the elite and special interest groups, any amendments could be proposed and created. The convention could even potentially change the way the amendments were ratified, as the original Constitutional Convention did. Instead of ratification by the state legislatures, it could declare a national referendum for the voters to decide. Alternatively, it could allow ratification by two-thirds of the states instead of three-fourths as they did in the original Constitutional Convention. [4]

Assuming the method of ratification was not changed, any amendments created by the constitutional convention would require ratification by the states as described in steps 5 through 8 in method 1 for amendments proposed by Congress.

If we can elect 222 members (51%) in the House and 60 members (60%) in the Senate along with the majority in the legislatures of 34 states (66%), then our fallback position is to use our states to call for a constitutional convention. We would have enough members in Congress to ensure that the rules set by Congress would favor us. In the convention, we would pass a resolution to allow ratification by two-thirds of the states.

[return to Chapter 17]