Ratification of Constitutional Amendments

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RATIFICATION OF CONSTITUTIONAL AMENDMENTS

The delegates to the constitutional convention of 1789 decided upon the outlines of the amending process after only a few hours of debate. The requirement that any proposed amendment be ratified by three-fourths of the states was adopted unanimously, but was, like so much of the Constitution, the result of a compromise. Initially the convention seems to have assumed that amendments to the federal charter would require ratification by all the states; but five state delegations were willing to set the requirement as low as two-thirds of the states. No form of ratification other than by the states as entities was proposed or discussed in the convention.

james madison, writing in the federalist #39, described the method of ratifying amendments to the new Constitution as "partly federal, partly national." The method is [con]federal in that ratification is accomplished by the states as states, and not by a referendum of the people or a national majority. At the same time, the method is national in that it does not require the assent of all the constituent states to alter the terms of the federal union. A pure theory of federalism, as it was understood by the founding generation, would not have sanctioned imposition of an amended compact upon unconsenting parties.

Our first constitution, the articles of confederation, had required the unanimous consent of the states to any amendment. For that reason, during the "critical period" between 1781 and 1789 no amendments were adopted, even when decisive weaknesses in the confederal system were apparent. The requirement for unanimous ratification of amendments made the Constitutional Convention and the new Constitution necessary.

Article V in fact provides for state ratification of constitutional amendments in one or the other of two distinct modes, leaving the choice of mode to Congress. The first mode is ratification by state legislatures, the second is ratification by conventions. In two centuries of government under the Constitution Congress has proposed thirty-three constitutional amendments and in thirty-two cases has prescribed state legislatures as the agents of ratification. The single exception was ratification of the twenty-first amendment, repealing prohibition.

The constitutional provision relating to ratification is little more than an outline. The details have been filled in as the need has arisen. Although the state legislatures derive their authority to ratify amendments from the federal Constitution, the size of the majority required to effect ratification is determined by the constitution, statutes, or legislative rules of each state. Many, perhaps most, prescribe an extraordinary majority for that purpose.

An amendment automatically becomes part of the Constitution when it is ratified by the requisite number of states, but someone must be designated to receive the certificates of ratification, to count them, and to announce publicly that ratification is complete. Originally Congress delegated this task to the secretary of state, but it is now performed by a relatively minor official, the director of general services. Congress itself proclaimed the ratification of the fourteenth amendment.

Article V sets no time limit within which the states must act on proposed amendments. The Framers supposed that the ratification process would occur at roughly the same time throughout the country. ratification of the constitution itself took nine months; the bill of rights was ratified in just over two years. The convention provided no definite time period after which a proposal for amendment would lapse. Therefore, a recurring question has been how long the states have to ratify proposed amendments.

The principles of democracy and constitutionalism would be ill-served if ratification of constitutional amendments by the several states did not have to be accomplished roughly contemporaneously. This goal has been met in the case of every successful amendment. Although seven years has become the standard period for the states to consider ratification, no amendment has, in fact, required as long as four years for ratification. The twenty-second amendment required the longest time, forty-seven and one-half months; the twenty-sixth amendment required the shortest period, four months. The average time for ratification of a constitutional amendment has been eighteen months.

As a legal matter, ratification must be accomplished within a "reasonable" time, but no statute or court decision has defined just how long a period that is. The child labor amendment, proposed in 1924, was ratified by three state legislatures as late as 1937, and the Supreme Court declined to hold that those ratifications were ineffective. The Supreme Court, in Dillon v. Gloss (1920), upheld the power of Congress to set a seven-year limit on the ratification period; but in Coleman v. Miller (1939) the Court refused to set such a limit on its own account where Congress failed to exercise the power.

The eighteenth, twentieth, Twenty-First, and Twenty-Second amendments comprise the ratification time limit within their texts. In several other cases, Congress has prescribed the time limit (invariably seven years) in the joint resolution proposing the amendment. Only once did Congress attempt to extend the prescribed time limit: when the seven years allotted for ratification of the so-called equal rights amendment (ERA) expired in 1979, Congress—by less than the two-thirds majority required for the original proposal—voted to extend the ratification period for an extra three and one-half years. The failure of the proposed amendment's supporters to garner sufficient ratifications even in the extended time period averted a constitutional crisis over the issue of time limits.

A matter frequently debated but never definitively resolved is whether the states, during the period for consideration of a proposed amendment, may alter a decision once one is taken. The question arose with regard to the Fourteenth Amendment and was revived during the controversy over the ERA. Indeed, there seems to be no doubt that a state, having declined to ratify a proposed amendment, may, within the allotted time, alter that decision and ratify the amendment. It is less certain whether a state that has voted to ratify a proposed amendment may subsequently rescind such a ratification. In 1868 Congress and Secretary of State william h. seward declared the Fourteenth Amendment ratified, apparently counting the ratifications of two states (New Jersey and Ohio) that had voted to rescind their ratifications. On the date of the declaration a sufficient number of states had ratified to render the disputed votes irrelevant. Expiration in 1983 of the extended time limit for ratification of the ERA made the question of rescinded ratifications of that proposal moot.

The requirement of state ratification presupposes that the state legislatures are free to choose whether or not to ratify a proposed amendment. But this is not always true. Ratification of the Fourteenth Amendment was secured, in part, because Congress made such ratification a condition for readmission of the states of the former Confederacy. Clearly Congress, amidst the crisis of Civil War and Reconstruction, stretched the limits of its authority by imposing that condition.

Controversies concerning the ratification of constitutional amendments are almost prototypically political questions. Only rarely has the Supreme Court decided such controversies. In Hawke v. Smith (1920) and Leser v. Garnett (1922) the Court rejected attempts to submit the question of ratification to a popular vote or to condition ratification on approval in a referendum. In United States v. Sprague (1931) the Court refused to impose any limit on Congress's freedom to choose between the two constitutional modes of ratification. The effect of the few cases the Court has decided has been, as in Dillon and Coleman, to reserve the power of final determination to Congress.

Dennis J. Mahoney
(1986)