The Amendment Process
There are essentially two ways spelled out in the Constitution for how to propose an amendment. One has never been used.
The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd).
The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.
Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by simple majority.
The Constitution, then, spells out four paths for an amendment:
It is interesting to note that at no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 US 378 ):
The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.
The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary or in the FAQ pages of the . This Topic Page concerns Amendment Ratification Conventions. Article 5 details a couple of ways that an amendment to the Constitution can be proposed - either through Congress or through a Constitutional Convention. However an amendment is proposed, the final step is ratification. Two methods for ratification are provided - by three-fourths of the state legislatures or by three-fourths of the states in convention. This topic concerns the latter of these two.
The normal course of events, when an amendment to the Constitution has been desired by the people, is for Congress to pass the amendment and for the state legislatures to then ratify. Congressional proposal of the amendment is by a two-thirds majority vote in both houses. State ratification is by three-fourths majority.
The Constitution does provide for one other way to ratify: by convention. A state convention differs from the state legislature in that it is usually an entirely separate body from the legislature. This introduces a different political dynamic into the amendment process.
The only time that conventions have been used was in the case of the 21st Amendment, which overturned the 18th Amendment. The 18th abolished alcohol manufacture or sales on a national scale. The 21st repealed the 18th, stating instead that each state shall have the ability to set its own laws regarding liquor. The text of the 21st specifically stated that it would have to be ratified by conventions held in each state:
3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Why specify conventions over legislatures, as every other amendment had been ratified up to then? The thought was that the people of the conventions, which would typically be average citizens, would be less likely to bow to political pressure to reject the amendment than elected officials would be. Note that the Supreme Court has ruled that a popular referendum is not a substitute for either the legislature nor a convention, nor can a referendum approve of or disapprove of the legislature's or a convention's decision on an amendment.
All of that out of the way, how does a ratification convention work? In the legislature, the method is simple: propose a bill of ratification and vote it up or down. But a convention gets more complicated because it is by necessity separate and different from the legislature. For this discussion, I will use the convention method of Vermont as a model (17 VSC 1811-1825).
The first step is proposal. Once Congress has proposed an amendment that is to be approved by convention, the governor has 60 days to call for an election of delegates to the convention, and the setting of a date for those elections. Note that the Vermont code does not contemplate the calling of ratifying conventions from a national amendment convention, though the same procedures would likely be followed.
Fourteen persons are elected to be members of the convention. They are elected at large, meaning that each voter would cast votes for fourteen people, with the top fourteen vote-getters being elected. The election must take place from three to twelve months after the governor's call. The convention must take place 20 to 30 days after the election. The convention itself is held in the Senate chamber in the state capital.
The candidates themselves are selected from a list of 28 possible Vermont citizens. All 28 candidates are selected by the governor, lieutenant governor, and speaker of the house. The persons selected must agree to be placed on the ballot - 14 of whom are opposed to ratification, 14 or whom are in favor. The ballots are to be plainly marked so that voters can decide based on the candidate's stand on the issue, or on name recognition. The state has 14 counties - each county is to have one "pro" and one "con" candidate. Voters can vote for all "For" or all "Against," or any combination.
The elected delegates meet on the appointed date, with the majority of those elected being a quorum. The code does not detail how the convention is to conduct its business aside from the fact that there will be a chairman and that the secretary of state will be the secretary of the convention, and those two persons will certify the results of the convention's vote. The convention might only last 15 minutes, or it could drag out for several days for debate. However long the convention takes, delegates are provided a stipend of $10.00 and reimbursement of actual expenses.
For comparison, the rules of New Mexico were randomly chosen. The procedure in New Mexico is vastly different (reference section 1-18-1 of the New Mexico Code). To start, the governor has only 10 days to call a convention, which seems short until the members of the convention are mentioned. Each member of the state legislature is a member of the convention, and the convention is held in the House chamber. No special election is called to appoint delegates. The code does effectively limit the convention to three days by refusing to pay the delegates for more than three days of work.
Lastly, the rule of Florida were chosen for comparison. The Florida rules are in 9 FSC 107.01 - 107.11. In Florida, the convention is made up of 67 members. The governor has 45 days to call an election to be held from five to ten months after Congress issues the proposed amendment. Anyone can apply to be a member of the convention, with the state qualifications for the state House being used as an eligibility test. Candidates can officially declare that they are for or against the amendment, or apply unannounced. An application fee of $25 and a 500-name petition are also required. On the ballots, candidates are listed in three categories: for, against, and undecided. There is also provision for write-in candidates. The vote is at large, meaning that the 67 top vote-getters in the state win the 67 seats in the convention. The meeting is held on the second Tuesday following the election. Delegates are not compensated per diem or for expenses.
Each state, then, has differing procedures for the calling and holding of their ratification conventions. But in the end, the yay or nay votes of the conventions are what allows an amendment to pass or be rejected.