Amendments—Ratification Process

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution . . . [which] 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.

—Robert G. Natelson

Introduction

After an amendment is proposed, either by Congress or by a federal convention, Congress must decide whether that measure should be considered for ratification or rejection by state legislatures or state conventions. The Constitution does not specify a different rule of decision, so under parliamentary common law, the rule for this congressional decision is a majority of those present and voting (a quorum being present).¹ The Constitution specifies that for an amendment to be declared ratified, it must be approved by three-fourths of these legislatures or conventions, with—absent a convention or legislative rule to the contrary—each convention or legislative chamber deciding by a majority of those present and voting, a quorum being present.

Historical practice, both before and after the Founding, provides additional details. For example, states have rescinded earlier ratifications of an amendment and have reconsidered earlier decisions not to ratify an amendment. Article V grants state legislatures power to ratify amendments (if Congress chooses the legislative ratification procedure) and incidental power to call in-state conventions (if Congress chooses the convention ratification procedure).

The Constitutional Convention

On August 6, 1787, the Committee of Detail proposed for amendment by a federal convention without any provision for congressional proposal or for a separate ratification procedure. On September 10, Roger Sherman of Connecticut moved to add congressional proposal coupled with a stipulation that “no amendments shall be binding until consented to by the several States.”² Elbridge Gerry of Massachusetts seconded this motion, and James Wilson of Pennsylvania successfully amended it to specify that ratification would require the approval of two-thirds of the states.³ The motion was defeated by a vote of six to five. Wilson then renewed his motion with the margin needed for ratification changed from two-thirds to three-fourths. His revised motion was approved unanimously.⁴

James Madison of Virginia then moved a substitute proposal that looked much like what ultimately was adopted.⁵ The text granted Congress the option of selecting a legislative or convention mode of ratification. Alexander Hamilton of New York seconded that proposal.⁶ John Rutledge of South Carolina insisted on a ban on amendments altering how representatives are apportioned.⁷ With that ban inserted, Madison’s draft was adopted by a vote of nine to one with one state divided.⁸ The Committee of Style’s penultimate draft of the Constitution,⁹ as well as the final draft, retained the ratification procedure in that form.

The Ratification Debates

The ratification procedure was generally not controversial, and discussions of it by the Constitution’s advocates during the ratification debates were brief. In Federalist No. 43, James Madison explained that the ratification threshold was not too high, and not too low, but was just right. Article V, he explained, “guards equally against that extreme facility [or ease], which would render the Constitution too mutable [changeable]; and that extreme difficulty, which might perpetuate its discovered faults.”

James Monroe, writing as “A Native of Virginia,” observed that “two-thirds of Congress” or “two-thirds of the Legislatures” would “no doubt” propose amendments to address “important defects.”¹⁰ The author contended that “the result of such Convention, will [not] be rejected by one-fourth of the States: Since all the States must feel the inconvenience of important defects.”

Reconsideration of Non-Ratification and Rescission of Ratification

In 1866, the Fourteenth Amendment was sent to the state legislatures for ratification. Some states initially rejected the amendment but later ratified it; others ratified but later rescinded. Congress sought to resolve the issue by a joint resolution, declaring it adopted as of July 9, 1868. In Coleman v. Miller (1939), the Supreme Court relied on that precedent to concede to Congress authority to resolve the effect of successive rejections, ratifications, and rescissions.¹¹

Eleven states existing during Reconstruction have since ratified the Fourteenth Amendment, rendering academic that specific dispute.

However, Coleman v. Miller’s concessions to Congress are of doubtful authority. First, there is no obvious reason why state legislatures should not be permitted to reconsider their amendment-related actions in a timely manner just as they can reconsider their other decisions. Second, allowing Congress to overrule the expressed will of state legislatures gives Congress a far greater weight in the amendment process than the constitutional text or the relevant history justifies. Third, Coleman relied on the precedent by which Congress declared the Fourteenth Amendment adopted, but subsequent ratifications of that amendment by additional states rendered Congress’s pronouncement unnecessary. Fourth, Coleman has been followed by eight decades of contrary practice: States have freely ratified and adopted legislative applications after previously refusing to do so and freely rescinded previous ratifications and applications. Moreover, a federal court has upheld a ratification rescission,¹² and no one seems to have questioned seriously the legitimacy of rescinding applications.¹³

Ratification by Convention

In 1789, the First Congress opted to send twelve amendments to state legislatures for ratification, ten of which were ratified and became known as the Bill of Rights. It was not until February 1933 that Congress chose to send an amendment to a state ratification convention. In December of that year, three-fourths of the state conventions ratified the Twenty-First Amendment, which repealed the Eighteenth Amendment and ended prohibition. (See Essay No. 208.) Congress apparently chose the convention path because many people believed that legislative ratification of the Eighteenth Amendment did not reflect true popular opinion, and the convention mode was seen as more likely to repeal prohibition.¹⁴

At one time, courts and commentators expressed doubts about how long a proposed and unrescinded amendment without a time limit remained ratifiable. Dillon v. Gloss (1921) suggested that there might be a “reasonable time” limit with reasonableness to be determined by Congress.¹⁵ However, this question seems to have been resolved by the accepted ratification of the Twenty-Seventh Amendment in 1992—203 years after it was proposed. (See Essay No. 216.)

Justiciability of Ratification Decisions

Justice Hugo Black concurred in Coleman v. Miller. He opined that “[t]he Constitution grants Congress exclusive power to control submission of constitutional amendments.”¹⁶ Black reasoned that “[f]inal determination by Congress that ratification by three-fourths of the States has taken place ‘is conclusive upon the courts.’” The former senator added that “Congress has sole and complete control over the amending process, subject to no judicial review.”¹⁷

Some scholars argue that this concurring opinion proves that Article V cases are non-justiciable and cannot be resolved by the courts. However, Black’s opinion is in tension with the text and history of Article V. The Constitution does not grant Congress the “exclusive power” over amendment; it balances responsibilities among various assemblies. Moreover, the states can substantively bypass Congress through the federal convention route. Despite Black’s concurrence, courts have had no hesitation in adjudicating Article V disputes.¹⁸ Much of the ensuing case law has dealt with ratification issues.¹⁹

Powers of State Legislatures to Ratify Amendments

United States v. Sprague (1931) ruled that Congress’s power to select among the two “Modes of Ratification”—state legislatures or state conventions—is absolute and not affected by the nature of the amendment proposed.²⁰ The Court has twice held that a ratifying state legislature acts as an independent assembly, free of state constitutional constraints such as a required referendum or the governor’s veto.²¹ In this regard, the state legislatures function as Congress functions when proposing amendments. Lower courts have decided that, in accordance with historical practice, ratifying legislatures and conventions may establish their own rules and judge their own members notwithstanding state law or other precedents.²² A plethora of cases have held that neither Congress nor the states may manipulate or alter the ratification process through ordinary legislation.

Further, Dillon v. Gloss (1921) determined that Article V, like other legal texts, creates incidental powers by implication.²³ Thus, lower tribunals have held that when Congress adopts the state convention mode of ratification, state legislatures have implied power and duty to adopt measures necessary to provide for the election of delegates to the convention.²⁴ In accordance with historical practice, the courts also have determined that convention delegates should be elected from districts rather than at large.²⁵

Open Questions

• Can state legislatures ratify an amendment after earlier refusing to ratify it? Can state legislatures rescind an earlier ratification of an amendment? If legislative reconsideration of ratification is valid, the question of timing remains. One possible solution is to permit states to move in and out of the ratification pool until three-fourths of them have ratified the amendment or the stated time limit has passed. At that point, the legislature’s most recent decision should become irrevocable.
• Can Congress subsequently extend a time limit for ratification adopted at the time of proposal?

1. Oldknow v. Wainright, [K.B. 1760] 2 Burr. 1017, 97 Eng. Rep. 683. ↩︎
2. 2 Farrand’s 558. ↩︎
3. Id. at 558–59. ↩︎
4. Id. at 559. ↩︎
5. Id. ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Id. ↩︎
9. Id. at 578. ↩︎
10. A Native of Virginia, Observations Upon the Proposed Plan of Federal Government (Apr. 2, 1788), in 9 DHRC 689. ↩︎
11. 307 U.S. 433, 450 (1939). ↩︎
12. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), judgment vacated as moot sub nom. Carmen v. Idaho, 459 U.S. 809 (1982). ↩︎
13. Howard Jarvis Taxpayers Ass’n v. Padilla, 363 P.3d 628, 650 (Cal. 2016). ↩︎
14. Everett Somerville Brown, Ratification of the Twenty-First Amendment to the Constitution of the United States 3–4 (1938). ↩︎
15. 256 U.S. 368 (1921). ↩︎
16. 307 U.S. 433, 457 (1939). ↩︎
17. Id. at 459. ↩︎
18. Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) ↩︎
19. Robert G. Natelson, The Law of Article V: State Initiation of Constitutional Amendments (2d ed. 2020). ↩︎
20. 282 U.S. 716 (1931). ↩︎
21. Hawke v. Smith, 253 U.S. 231 (1920); Leser v. Garnett, 258 U.S. 130 (1922). ↩︎
22. Dyer, 390 F. Supp. at 1291, 1292. ↩︎
23. 256 U.S. 368, 373 (1921). ↩︎
24. State ex rel. Tate v. Sevier, 62 S.W.2d 895 (Mo. 1933); State ex rel. Donnelly v. Myers, 186 N.E. 918 (Ohio 1933). ↩︎
25. In Re Opinion of the Justices, 167 A. 176 (Me. 1933). ↩︎