The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Thirty-three proposed amendments to the Constitution have been submitted to the states pursuant to this Article, all of them upon the vote of the requisite majorities in Congress and none by the alternative convention method. 1 In the Convention, much controversy surrounded the issue of the process by which the document then being drawn should be amended. At first, it was voted that
provision ought to be made for the amendment [of the Constitution] whensoever it shall seem necessary without the agency of Congress being at all involved. 2 Acting upon this instruction, the Committee on Detail submitted a section providing that upon the application of the legislatures of two-thirds of the states Congress was to call a convention for purpose of amending the Constitution. 3 Adopted, 4 the section was soon reconsidered on the motion of Framers of quite different points of view. Some worried that the provision would allow two-thirds of the states to subvert the others, 5 and some thought that Congress would be the first to perceive the need for amendment and that to leave the matter to the discretion of the states would mean that no alterations but those increasing the powers of the states would ever be proposed. 6 Madison's proposal was adopted, empowering Congress to propose amendments either on its own initiative or upon application by the legislatures of two-thirds of the states. 7 When this provision came back from the Committee on Style, however, Gouverneur Morris and Gerry succeeded in inserting the language providing for a convention upon the application of the legislatures of two-thirds of the states. 8
Proposals by Congress
Few difficulties of a constitutional nature have arisen with regard to this method of initiating constitutional change, the only method, as we noted above, so far successfully resorted to. When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument. 9 Instead, the House decided to propose them as supplementary articles, a method followed since. 10 It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals. 11 In the National Prohibition Cases, 12 the Court ruled that, in proposing an amendment, the two Houses of Congress thereby indicated that they deemed revision necessary. The same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the Members present—assuming the presence of a quorum—and not a vote of two-thirds of the entire membership. 13 The approval of the President is not necessary for a proposed amendment. 14
The Convention Alternative
Because it has never successfully been invoked, the convention method of amendment is surrounded by a lengthy list of questions. 15 When and how is a convention to be convened? Must the applications of the requisite number of states be identical or ask for substantially the same amendment, or merely deal with the same subject matter? Must the requisite number of petitions be contemporaneous with each other, substantially contemporaneous, or strung out over several years? Could a convention be limited to consideration of the amendment or the subject matter which it is called to consider? These are only a few of the obvious questions, and others lurk to be revealed on deeper consideration. 16 This method has been close to being used several times. Only one state was lacking when the Senate finally permitted passage of an amendment providing for the direct election of senators. 17 Two states were lacking in a petition drive for a constitutional limitation on income tax rates. 18 The drive for an amendment to limit the Supreme Court's legislative apportionment decisions came within one state of the required number, and a proposal for a balanced budget amendment has been but two states short of the requisite number for some time. 19 Arguments existed in each instance against counting all the petitions, but the political realities no doubt are that if there is an authentic national movement underlying a petitioning by two-thirds of the states there will be a response by Congress.
In 1992, the nation apparently ratified a long-quiescent 27th Amendment, to the surprise of just about everyone. Whether the new Amendment has any effect in the area of its subject matter, the effective date of congressional pay raises, the adoption of this provision has unsettled much of the supposed learning on the issue of the timeliness of pendency of constitutional amendments.
It has been accepted that Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Beginning with the Eighteenth Amendment, save for the Nineteenth, Congress has included language in all proposals stating that the amendment should be inoperative unless ratified within seven years. 20 All the earlier proposals had been silent on the question, and two amendments proposed in 1789, one submitted in 1810 and another in 1861, and most recently one in 1924 had gone to the states and had not been ratified. In Coleman v. Miller, 21 the Court refused to pass upon the question whether the proposed child labor amendment, the one submitted to the states in 1924, was open to ratification thirteen years later. This it held to be a political question that Congress would have to resolve in the event three-fourths of the states ever gave their assent to the proposal.
In Dillon v. Gloss, 22 the Court upheld Congress’s power to prescribe time limitations for state ratifications and intimated that proposals that were clearly out of date were no longer open for ratification. Finding nothing express in Article V relating to time constraints, the Court nevertheless found evidence that strongly suggests that proposed amendments are not open to ratification for all time or by states acting at widely separate times. 23
Three related considerations were put forward.
First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. 24
Continuing, the Court observed that this conclusion was the far better one, because the consequence of the opposite view was that the four amendments proposed long before, including the two sent out to the states in 1789
are still pending and in a situation where their ratification in some of the States many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more States to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. 25
untenable to a unanimous Court in 1921 proved quite acceptable to both executive and congressional branches in 1992. After a campaign calling for the resurrection of the 1789 proposal, which was originally transmitted to the states as one of the twelve original amendments, enough additional states ratified to make up a three-fourths majority, and the responsible executive official proclaimed the amendment as ratified as both Houses of Congress concurred in resolutions. 26
That there existed a
reasonable time limit for ratification was strongly controverted. 27 The Office of Legal Counsel of the Department of Justice prepared for the White House counsel an elaborate memorandum that disputed all aspects of the Dillon opinion. 28 First, Dillon’s discussion of contemporaneity was discounted as dictum. 29 Second, the three
considerations relied on in Dillon were deemed unpersuasive. Thus, the Court simply assumes that, because proposal and ratification are steps in a single process, the process must be short rather than lengthy; the argument that an amendment should reflect necessity says nothing about the length of time available, in that the more recent ratifying states obviously thought the pay amendment was necessary; and the fact that an amendment must reflect consensus does not so much as intimate contemporaneous consensus. 30 Third, the OLC memorandum argued that the proper mode of interpretation of Article V was to
provide a clear rule that is capable of mechanical application, without any need to inquire into the timeliness or substantive validity of the consensus achieved by means of the ratification process. Accordingly, any interpretation that would introduce confusion must be disfavored. 31 The rule ought to be, echoing Professor Tribe, that an amendment is ratified when three-fourths of the states have approved it. 32 The memorandum vigorously pursues a
plain-meaning rule of constitutional construction. Article V says nothing about time limits, and elsewhere in the Constitution when the Framers wanted to include time limits they did so. The absence of any time language means there is no requirement of contemporaneity or of a
reasonable period. 33
Now that the Amendment has been proclaimed and has been accepted by Congress, where does this development leave the argument over the validity of proposals long distant in time? One may assume that this precedent stands for the proposition that proposals remain viable forever. It may, on the one hand, stand for the proposition that certain proposals, because they reflect concerns that are as relevant today, or perhaps in some future time, as at the time of transmission to the states, remain open to ratification. Certainly, the public concern with congressional pay made the Twenty-seventh Amendment particularly pertinent. The other 1789 proposal, relating to the number of representatives, might remain viable under this standard, whereas the other proposals would not. On the other hand, it is possible to argue that the precedent is an
aberration, that its acceptance owed more to a political and philosophical argument between executive and legislative branches and to the defensive posture of Congress in the political context of 1992 that led to an uncritical acceptance of the Amendment. In that latter light, the development is relevant to but not dispositive of the controversy. And, barring some judicial interpretation, that is likely to be where the situation rests.
Nothing in the status of the precedent created by the Twenty-seventh Amendment suggests that Congress may not, when it proposes an amendment, include a time limitation either in the text or in the accompanying resolution, simply as an exercise of its necessary and proper power.
Whether Congress may extend a ratification period without necessitating new action by states that have already ratified embroiled Congress, the states, and the courts in argument with respect to the proposed Equal Rights Amendment. 34 Proponents argued and opponents doubted that the fixing of a time limit and the extending of it were powers committed exclusively to Congress under the political question doctrine and that in any event Congress had power to extend. It was argued that inasmuch as the fixing of a reasonable time was within Congress’s power and that Congress could fix the time either in advance or at some later point, based upon its evaluation of the social and other bases of the necessities of the amendment, Congress did not do violence to the Constitution when, once having fixed the time, it subsequently extended the time. Proponents recognized that if the time limit was fixed in the text of the amendment Congress could not alter it because the time limit as well as the substantive provisions of the proposal had been subject to ratification by a number of states, making it unalterable by Congress except through the amending process again. Opponents argued that Congress, having by a two-thirds vote sent the amendment and its authorizing resolution to the states, had put the matter beyond changing by passage of a simple resolution, that states had either acted upon the entire package or at least that they had or could have acted affirmatively upon the promise of Congress that if the amendment had not been ratified within the prescribed period it would expire and their assent would not be compelled for longer than they had intended. Congress did pass a resolution extending by three years the period for ratification. 35
Litigation followed and a federal district court, finding the issue to be justiciable, held that Congress did not have the power to extend, but before the Supreme Court could review the decision the extended time period expired and mooted the matter. 36
Also much disputed during consideration of the proposed Equal Rights Amendment was the question whether, once a state had ratified, it could thereafter withdraw or rescind its ratification, precluding Congress from counting that state toward completion of ratification. Four states had rescinded their ratifications and a fifth had declared that its ratification would be void unless the amendment was ratified within the original time limit. 37 The issue was not without its history. The Fourteenth Amendment was ratified by the legislatures of Ohio and New Jersey, both of which subsequently passed rescinding resolutions. Contemporaneously, the legislatures of Georgia, North Carolina, and South Carolina rejected ratification resolutions. Pursuant to the Act of March 2, 1867, 38 the governments of those states were reconstituted and the new legislatures ratified. Thus, there were presented both the question of the validity of a withdrawal and the question of the validity of a ratification following rejection. Congress requested the Secretary of State 39 to report on the number of states ratifying the proposal, and the Secretary's response specifically noted the actions of the Ohio and New Jersey legislatures. The Secretary then issued a proclamation reciting that 29 states, including the two that had rescinded and the three which had ratified after first rejecting, had ratified, which was one more than the necessary three-fourths. He noted the attempted withdrawal of Ohio and New Jersey and observed that it was doubtful whether such attempts were effectual in withdrawing consent. 40 He therefore certified the amendment to be in force if the rescissions by Ohio and New Jersey were invalid. The next day Congress adopted a resolution listing all 29 states, including Ohio and New Jersey, as having ratified and concluded that the ratification process was completed. 41 The Secretary of State then proclaimed the Amendment as part of the Constitution.
In Coleman v. Miller, 42 the congressional action was interpreted as going directly to the merits of withdrawal after ratification and of ratification after rejection.
Thus, the political departments of the Government dealt with the effect of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification.
Although rescission was hotly debated with respect to the Equal Rights Amendment, the failure of ratification meant that nothing definitive emerged from the debate. The questions that must be resolved are whether the matter is justiciable, that is, whether under the political question doctrine resolution of the issue is committed exclusively to Congress, and whether there is judicial review of what Congress’s power is in respect to deciding the matter of rescission. The Fourteenth Amendment precedent and Coleman v. Miller combine to suggest that resolution is a political question committed to Congress, but the issue is not settled.
The Twenty-seventh Amendment precedent is relevant here. The Archivist of the United States proclaimed the Amendment as having been ratified a day previous to the time both Houses of Congress adopted resolutions accepting ratification. 43 There is no necessary conflict, because the Archivist and Congress concurred in their actions, but the Office of Legal Counsel of the Department of Justice opined that the Coleman precedent was not binding and that the Fourteenth Amendment action by Congress was an
aberration. 44 That is, the memorandum argued that the Coleman opinion by Chief Justice Hughes was for only a plurality of the Court and, moreover, was dictum, as it addressed an issue not before the Court. 45 On the merits, OLC argued that Article V gave Congress no role other than to propose amendments and to specify the mode of ratification. An amendment is valid when ratified by three-fourths of the states, no further action being required. Although someone must determine when the requisite number have acted, OLC argued that the executive officer charged with the function of certifying, now the Archivist, has only the ministerial duty of counting the notifications sent to him. Separation of powers and federalism concerns also counseled against a congressional role, and past practice, in which all but the Fourteenth Amendment were certified by an executive officer, was noted as supporting a decision against a congressional role. 46
What would be the result of adopting one view over the other?
First, finding that resolution of the question is committed to Congress merely locates the situs of the power and says nothing about what the resolution should be. That Congress in the past has refused to accept rescissions is but the starting point, because, unlike courts, Congress operates under no principle of stare decisis so that the decisions of one Congress on a subject do not bind future Congresses. If Congress were to be faced with a decision about the validity of rescission, to what standards should it look?
That a question of constitutional interpretation may be
political in the sense of being committed to one or to both of the
political branches is not, of course, a judgment that in its resolution the political branch may decide without recourse to principle. Resolution of political questions is not subject to judicial review, so the decisionmaker need not be troubled with the prospect of being overruled. But both legislators and executive are bound by oath to observe the Constitution, 47 and consequently the search for an answer must begin with the original document.
It may be, however, that the Constitution does not speak to the issue. Generally, in the exercise of judicial review, courts view the actions of the legislative and executive branches in terms not of the wisdom or desirability or propriety of their actions but in terms of the comportment of those actions with the constitutional grants of power and constraints upon those powers; if an action is within a granted power and violates no restriction, the courts will not interfere. How the legislature or the executive decides to deal with a question within the confines of the powers each constitutionally have is beyond judicial control.
Therefore, if the Constitution commits decision on an issue to, say, Congress, and imposes no standards to govern or control the reaching of that decision, Congress may be free to make a determination solely as a policy matter, restrained only by its sense of propriety or wisdom or desirability. The reason that these issues are not justiciable is not only that they are committed to a branch for decision without intervention by the courts but also that the Constitution does not contain an answer. This interpretation, in the context of amending the Constitution, may be what Chief Justice Hughes was deciding for the plurality of the Court in Coleman. 48
Article V may be read to contain a governing constitutional principle, however. Thus, it can be argued that, as written, the provision contains only language respecting ratification and that, inexorably, once a state acts favorably on a resolution of ratification it has exhausted its jurisdiction over the subject and cannot rescind, 49 nor can Congress even authorize a state to rescind. 50 This conclusion is premised on Madison's argument that a state may not ratify conditionally, that it must adopt
in toto and for ever. 51 Although the Madison principle may be unexceptionable in the context in which it was stated, one may doubt that it transfers readily to the significantly different issue of rescission.
A more pertinent principle seems to be that expressed in Dillon v. Gloss. 52 In that case, the action of Congress in fixing a seven-year period within which ratification was to occur or the proposal would expire was attacked as vitiating the amendment. The Court, finding no express provision in Article V, nonetheless concluded that the fair implication of Article V is
that the ratification must be within some reasonable time after the proposal. 53 Three reasons underlay the Court's finding of this implication and they are suggestive on the question of rescission. 54
Although addressing a different issue, the Court's discussion of the length of time an amendment may reasonably pend before losing its viability is suggestive with respect to rescission. That is, first, with proposal and ratification as successive steps in a single endeavor, second, with the necessity of amendment forming the basis for adoption of the proposal, and, third, especially with the implication that an amendment's adoption should be
sufficiently contemporaneous in the requisite number of states
to reflect the will of the people in all sections at relatively the same period, it would raise a large question were the ratification process to count one or more states that were acting to withdraw their expression of judgment that amendment was necessary at the same time other states were acting affirmatively. The
decisive expression of the people’s will that is to bind all might well be found lacking in those or similar circumstances. But employment of this analysis would not necessarily lead in specific circumstances to failures of ratification; the particular facts surrounding the passage of rescission resolutions, for example, might lead Congress to conclude that the requisite
expression of the people’s will was not undermined by the action.
And employment of this analysis would still seem, under these precedents, to leave to Congress the crucial determination of the success or failure of ratification. At the same time it was positing this analysis in the context of passing on the question of Congress’s power to fix a time limit, the Court in Dillon v. Gloss observed that Article V left to Congress the authority
to deal with subsidiary matters of detail as the public interest and changing conditions may require. 55 And, in Coleman v. Miller, Chief Justice Hughes went further in respect to these
matters of detail being
within the congressional province in the resolution of which the decision by Congress
would not be subject to review by the courts. 56
Thus, it may be that, if the Dillon v. Gloss construction is found persuasive, Congress would have constitutional standards to guide its decision on the validity of rescission. At the same time, if these precedents reviewed above are adhered to and strictly applied, it appears that the congressional determination to permit or to disallow rescission would not be subject to judicial review.
Adoption of the alternative view, that Congress has no role but that the appropriate executive official has the sole responsibility, would entail different consequences. That official, now the Archivist, appears to have no discretion but to certify once he receives state notification. 57 The official could, of course, request a Department of Justice legal opinion on some issue, such as the validity of rescissions. That is the course advocated by the executive branch, naturally, but it is one a little difficult to square with the ministerial responsibility of the Archivist. 58 In any event, there would seem to be no support for a political question preclusion of judicial review under these circumstances. Whether the Archivist certifies on the mere receipt of a ratification resolution or does so only after ascertaining the resolution’s validity, it would appear that it is action subject to judicial review. 59
Congress has complete freedom of choice between the two methods of ratification recognized by Article V: by the legislatures of the states or by conventions in the states. In United States v. Sprague, 60 counsel advanced the contention that the Tenth Amendment recognized a distinction between powers reserved to the states and powers reserved to the people, and that state legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several states. The Eighteenth Amendment being of the latter character, the ratification by state legislatures, so the argument ran, was invalid. The Supreme Court rejected the argument. It found the language of Article V too clear to admit of reading any exception into it by implication.
legislatures as used in Article V means deliberative, representative bodies of the type which in 1789 exercised the legislative power in the several states. It does not comprehend the popular referendum, which has subsequently become a part of the legislative process in many of the states. A state may not validly condition ratification of a proposed constitutional amendment on its approval by such a referendum. 61 In the words of the Court:
[T]he function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State. 62
Authentication and Proclamation
Formerly, official notice from a state legislature, duly authenticated, that it had ratified a proposed amendment went to the Secretary of State, upon whom it was binding,
being certified by his proclamation, [was] conclusive upon the courts as against any objection which might be subsequently raised as to the regularity of the legislative procedure by which ratification was brought about. 63 This function of the Secretary was first transferred to a functionary called the Administrator of General Services, 64 and then to the Archivist of the United States. 65 In Dillon v. Gloss, 66 the Supreme Court held that the Eighteenth Amendment became operative on the date of ratification by the thirty-sixth state, rather than on the later date of the proclamation issued by the Secretary of State, and doubtless the same rule holds as to a similar proclamation by the Archivist.