Research Department
Minnesota House of Representatives
April 2016
United States Constitutional
Amendment Process
Legal Principles for State
Legislators
The
Research Department of the Minnesota House of Representatives is a
nonpartisan professional office serving the entire membership of the House and
its committees. The department assists all members and committees in
developing, analyzing, drafting, and amending legislation.
The department also conducts in-depth research studies and collects, analyzes,
and publishes information regarding public policy issues for use by all House
members.
Research Department
Minnesota House of Representatives
600 State Office Building, St. Paul, MN 55155
651-296-6753
April 2016
United States Constitutional
Amendment Process
Legal Principles for State
Legislators
This publication is a general reference guide for state
legislators and state legislative staff on the history and legal
principles related to amending the United States
Constitution.
Copies of this publication may be obtained by calling 651-296-6753. This document can be made
available in alternative formats for people with disabilities by calling 651-296-6753 or the
Minnesota State Relay Service at 711 or 1-800-627-3529 (TTY). Many House Research
Department publications are also available on the Internet at: www.house.mn/hrd/.
About This Publication. This publication is designed for state legislators and state legislative
staff as a reference guide for finding and understanding applicable law related to amending the
U.S. Constitution.
This publication is part of a series of House Research Department documents exploring the role
of the legislature in amending both the U.S. Constitution and Minnesota’s state constitution.
The constitutional amendment series is designed as a guide for Minnesota legislators to
(1) understand the powers of the legislature—and the constraints on the legislature’s power—in
proposing, ratifying, and submitting amendments to the people; and (2) provide a history of the
Minnesota Legislature’s actions related to federal and state constitutional amendments. Other
publications in this series include:
• Minnesota Constitutional Amendments: History and Legal Principles, House Research
Department, 2013
• Legislative Approval of Proposed Constitutional Amendments (1894-2013), House
Research Department, 2013
• United States Constitutional Amendments: Minnesota’s Legislative History, House
Research Department, 2016
This report was prepared by Matt Gehring, legislative analyst in the House Research
Department. Law clerks Nolan Hudalla and Travis Waller provided research assistance.
Questions may be addressed to Matt at 651-296-5052.
Jessica Gallardo provided graphics and production assistance.
Contents
Introduction ............................................................................................................1
United States Constitutional Amendment Process: Article V .............................1
Summary of Procedure: Amendments Proposed by Congress ............................2
Summary of Procedure: Amendments Proposed by Convention ........................3
Ratification Data ..................................................................................................4
Part 1: Powers and Duties of Congress and the Federal Government .............6
Procedural Issues in the Federal Legislative Process ..........................................6
Administration of the Ratification Process ........................................................12
Part 2: Powers and Duties of State Legislatures and State Government .......15
Source of State Legislative Authority ................................................................15
Procedural Issues in th
e State Legislative Process ............................................17
Participation of Voters in the State Ratification Process ...................................23
Alternatives to State Ratification: Rescission and Rejection .............................28
Ratification of Proposed Amendment by State Convention ..............................34
Part 3: Article V Convention Process ................................................................38
State Procedures in Article V Convention Process ............................................38
Federal Procedures in Article V Process
...........................................................41
State Perspectives on Organizing a Convention ................................................43
Part 4: Procedural Issues in Litigation Involving
Constitutional Amendments .........................................................................46
Appendix 1: Explicit State Constitutional Provisions and Legislative Rules
Related to U.S. Constitutional Amendment Procedure ..............................52
Appendix 2: State Legislative Actions to Rescind Ratification, Ratify
Following a Rejection, or Reject a Proposed Amendment .........................56
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Introduction
The process of amending the United States Constitution—provided in Article V of the
Constitution—presents a unique challenge for state legislatures as institutions, as well as for
individual members of a state legislative body. This is partly due to its relatively rare
implementation and also because the case law interpreting the requirements of the process has
not led to a clear and concise body of law. Instead, much of the law has developed through a
collection of cases arising out of particular circumstances, in particular states, at particular times
across history.
About the Case Law. Many of the principles discussed in this publication come from rulings of
the U.S. Supreme Court, but others have been generated by decisions of lower courts (including
federal district and appellate courts, state supreme courts, and state courts of appeal).
While lower court decisions do not carry the same legal weight and do not have the same
nationwide reach as decisions of the U.S. Supreme Court, they are included in order to capture
the full breadth of legal analysis and principles that have been applied to the constitutional
amendment process over time.
Several of the cases discussed are cited multiple times throughout the publication. Rather than
providing full case background and analysis at each citation, the case discussion is limited to the
specific points of law applicable to the topic heading under which it is cited.
United States Constitutional Amendment Process: Article V
The process for amending the U.S. Constitution is established by Article V:
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.
The U.S. Supreme Court has declared that the Article V amendment process is the only method
of adding or removing language from the constitution.
1
1
Ullman v. United States, 350 U.S. 422, 428 (1956).
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Proposal of Amendments by Congress or Convention. The text of Article V provides two
possibilities for proposing an amendment:
(1) Congress may propose an amendment to the states, upon a two-thirds vote of both
houses; or
(2) A convention may propose an amendment to the states. A convention is called by
Congress, on application of two-thirds of the states.
Ratification of an Amendment by the States. Once an amendment is formally proposed,
ratification may occur through one of two processes, as determined by Congress:
(1) Ratification by three-fourths of state legislatures; or
(2) Ratification by three-fourths of states, acting by state convention.
The substance of proposed amendments is not limited, except that an amendment may not
modify the balance of power among states in the Senate, without the consent of each affected
state.
2
Article V also contains now obsolete language prohibiting certain types of amendments
from being adopted prior to the year 1808.
Summary of Procedure: Amendments Proposed by Congress
The procedure for proposing amendments, submission to the states, and final ratification follow
the requirements of Article V, provisions of federal law, and the customs and practices that have
developed to guide the process over time.
3
An amendment generally follows this path:
(1) Proposal by Congress
(2) Submission to States
(3) Ratification
Proposal by Congress. Congress is empowered to submit a proposed amendment to the states
on a two-thirds vote of both the House of Representatives and the Senate. The custom of
Congress is that amendment proposals are formatted as a joint resolution.
The content of the joint resolution includes the text of the proposed amendment and the method
of state ratifications (by legislatures or by state conventions). For the past century, nearly all
2
In 1922, the Supreme Court heard a challenge to the 19th Amendment (women’s suffrage), based on a claim
that it impermissibly violated a state’s autonomy as a political body if the state failed to ratify the amendment (the
petitioners were from Maryland, which had not ratified the amendment). This claim was rejected. Leser v. Garnett,
258 U.S. 130 (1922).
3
See https://www.archives.gov/federal-register/constitution/, last accessed February 2, 2016.
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 3
resolutions have also included a deadline for state ratification.
Submission to States. Upon approval by Congress, the proposed amendment is forwarded to
the National Archives and Records Administration’s Office of the Federal Register (it is not
presented to the president for approval). The Office of the Federal Register publishes the
proposed amendment, and prepares a package of informational materials on the ratification
process for delivery to each state.
The Archivist of the United States sends the proposed amendment and informational materials to
each state’s governor. The state’s governor then submits the proposal to the state legislature for
consideration.
Ratification. When a state has ratified an amendment, it must submit a set of paperwork back to
the National Archives and Records Administration. The Office of the Federal Register verifies
that the documents appear to be in proper order and acknowledges receipt. The National
Archives and Records Administration also receives records of other legislative actions—such as
rejection of an amendment or rescission of a ratification—but it does not make any substantive
determination about the validity of these actions.
When it appears that a sufficient number of states have ratified a proposed amendment, the
Archivist of the United States issues a proclamation certifying that the amendment has been
ratified. The certification is published and serves as official notice of ratification.
A ratified amendment is effective as of the day a sufficient number of state ratifications are
completed, not on the day the certification is proclaimed.
Further discussion of ratification procedure is provided in Parts 1 and 2.
Summary of Procedure: Amendments Proposed by Convention
Apart from the requirements of Article V, there are no provisions of federal law, or established
customs and practices that direct a specific procedure related to convening or administering a
convention. A federal convention has not occurred since the original convention was convened
to draft the constitution in 1787.
The experiences of individual states in amending their state constitutions by convention—which
has occurred with some regularity over time—may be helpful in considering the issues that
might arise in a federal convention, and in considering how those issues might be resolved.
Over time, state legislatures have developed customs and practices for submitting applications
for a convention to Congress. Congress has never taken action in response to these applications,
or in response to the customs and practices used to submit them.
Further discussion of historic practices and issues related to conventions is provided in Part 4.
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Ratification Data
Through 2015, all proposed amendments have been submitted to the states on the initiative of
Congress; 26 of 27 ratified amendments have been ratified by the vote of state legislatures. One
amendment (the 21st, repealing prohibition) was ratified by the vote of state conventions.
Table 1
Proposal and Ratification Data, Ratified Amendments
4
Amendment
Proposed by
Congress
Method of
State
Ratification
Ratification by 3/4
of States
1st to 10th – Bill of Rights
September 25, 1789 Legislatures December 15, 1791
11th – State Sovereignty
March 4, 1794 Legislatures February 7, 1795
12th – Electoral College
December 9, 1803 Legislatures June or July, 1804
13th – Abolition of Slavery
February 1, 1865 Legislatures December 6, 1865
14th – Due Process, Equal Protection,
and Rights of Citizenship
June 13, 1866 Legislatures July 1868
15th – Voting Rights based on Race
February 26, 1869 Legislatures February 1870
16th – Income Tax
July 12, 1909 Legislatures February 3, 1913
17th – Direct Election of Senators
May 13, 1912 Legislatures April 8, 1913
18th – Prohibition
December 18, 1917 Legislatures January 16, 1919
19th – Women’s Suffrage
June 4, 1919 Legislatures August 18, 1920
20th – Terms of Office; Presidential
Succession
March 2, 1932 Legislatures January 23, 1933
21st – Repeal of Prohibition
February 20, 1933 Ratifying
Conventions
December 5, 1933
22nd – Presidential Term Limits
March 24, 1947 Legislatures February 27, 1951
23rd – District of Columbia Electoral
Rights
June 16, 1960 Legislatures March 29, 1961
24th – Poll Taxes Prohibited
September 14, 1962 Legislatures January 23, 1964
25th – Presidential Succession
July 6, 1965 Legislatures February 10, 1967
4
The data contained in this table is consistent with that reported in “Amendments to the Constitution of the
United States of America,” Constitution of the United States of America: Analysis and Interpretation, United States
Congress, U.S Government Printing Office (2014), available at: https://www.congress.gov/constitution-annotated/.
Last accessed December 14, 2015.
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 5
Amendment
Proposed by
Congress
Method of
State
Ratification
Ratification by 3/4
of States
26th – Voting Rights Based on Age
March 23, 1971 Legislatures July 1, 1971
27th – Congressional Salaries
September 25, 1789 Legislatures May 7, 1992
Table 2
Proposal and Ratification Data, Amendments Proposed but Not Ratified
5
Amendment
Proposed by
Congress
Method of
State
Ratification Ratification Period
Congressional Apportionment
September 25, 1789 Legislatures N/A
Titles of Nobility
May 1, 1810 Legislatures N/A
Prohibiting Elimination of Slavery by
Constitutional Amendment (“Corwin”
Amendment)
March 2, 1861 Legislatures N/A
Child Labor
June 2, 1924 Legislatures N/A
Equal Rights Amendment
March 22, 1972 Legislatures Expired June 30,
1982
District of Columbia Representation
August 22, 1978 Legislatures Expired August 22,
1985
5
The data contained in this table is consistent with that reported in “Proposed Amendments Not Ratified by the
States,” Constitution of the United States of America: Analysis and Interpretation, United States Congress, U.S
Government Printing Office (2014), available at: https://www.congress.gov/constitution-annotated/. Last accessed
December 14, 2015.
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Part 1: Powers and Duties of Congress and the Federal
Government
Congress is the primary institution of the federal government with authority over the
constitutional amendment process. The National Archives and Records Administration (NARA)
also plays a ministerial role related to certification of amendments upon proposal and ratification.
This part is divided into the following sections:
(1) Procedural Issues in the Federal Legislative Process
(2) Administration of the Ratification Process
A separate discussion of the role of Congress and the Federal Government in Article V
Conventions is contained in Part 3.
Procedural Issues in the Federal Legislative Process
Congress’s power to propose amendments includes the power to establish a
deadline for ratification by the states. A deadline established by Congress is a
political question and is not subject to judicial review.
Early amendments proposed by Congress did not specify a deadline for ratification—leaving
some unratified amendments still technically pending before the states today. A deadline first
appeared in a proposed amendment in 1917, when Congress proposed what later became the
18th amendment (prohibition). Nearly every amendment since that time has included a deadline
for ratification, either in the text of the proposed amendment itself or in the “preamble” language
that appears in the congressional resolution prior to the substantive amendment text.
6
Dillon v. Gloss. In 1921, the Supreme Court heard a challenge to the application of the
18th amendment (prohibition). An individual convicted of transporting liquor in
violation of the new amendment and some related laws argued that the amendment was
not properly ratified, because Congress included a seven-year ratification deadline in the
proposed amendment; he claimed that inclusion of the deadline was unconstitutional.
In reviewing the history of the amendment process and the text of Article V, the Court
held:
(1) the constitution requires ratification within a reasonable time; and
6
Exceptions to the modern custom of including a ratification deadline are the 19th amendment (women’s
suffrage) and the proposed child labor amendment.
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(2) Congress is within its powers to set a definite deadline for ratification.
7
As part of its analysis, the Court noted that both the proposal of an amendment and its
ratification “are not treated as unrelated acts, but as succeeding steps in a single
endeavor…” and that ratification by the states must be “sufficiently
contemporaneous…to reflect the will of the people in all sections at relatively the same
period…”
8
Coleman v. Miller. In 1939, the Supreme Court heard a challenge by several Kansas
state legislators against their leadership officers, related to the legislature’s actions on the
proposed child labor amendment. The case led to many individual legal precedents,
which are discussed in applicable sections throughout this publication.
In the context of the right of Congress to set ratification deadlines, the Coleman case
restated the analysis outlined in Dillon—proposed amendments must be ratified within a
reasonable time, and Congress may specify an appropriate deadline—and took it one step
further, rejecting any authority for the Court to second-guess Congress’s deadline for
ratification, declaring the issue a “political question.”
9
A “political question” is a specific term used to describe issues that, in the Court’s
judgement, are more appropriately decided by the legislative and executive branches of
government (the “political” branches) rather than by the judicial branch.
10
The Coleman court held that a judgment about the appropriate “reasonable time” for
ratification of an amendment is a political question because it relies on “an appraisal of a
great variety of relevant conditions, political, social, and economic, which can hardly be
said to be within the appropriate range of evidence receivable in a court of justice…” and
that “[t]hey can be decided by the Congress with the full knowledge and appreciation
ascribed to the national legislature of the political, social, and economic conditions which
have prevailed during the period since submission of the amendment.”
11
Idaho v. Freeman. The proper placement of the ratification deadline in a resolution
proposing an amendment was the subject of controversy in the 1970s and early 1980s,
when Congress extended the deadline for states to ratify the proposed Equal Rights
Amendment by nearly three years—from March 21, 1979, to January 30, 1982. The
ratification deadline in the amendment had been placed not in the proposed constitutional
text, but in the resolution language introducing the proposed new text.
7
Dillon v. Gloss, 256 U.S. 368, 375-376 (1921); See also United States v. Gugel, 119 F.Supp. 897 (E.D. Ky.,
1954).
8
Id. at 374-375.
9
Coleman v. Miller, 307 U.S. 433, 454 (1939).
10
A complete discussion of the political question doctrine is beyond the scope of this publication. For further
discussion of political questions in the context of constitutional amendments, see Part 4.
11
Coleman, 307 U.S. at 453-454.
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In 1981, the extended ratification period for the proposed Equal Rights Amendment was
challenged as a violation of Article V. A federal district court in Idaho held that the
extension was improper, because it caused uncertainty as to the status of the proposed
amendment and was not adopted by a two-thirds vote of Congress as required by Article
V.
12
The district court’s ruling was put on hold after the U.S. Supreme Court agreed to hear an
appeal, but the Supreme Court later ordered the case dismissed before reaching the
substance of the challenge, because the extended ratification period had expired without
any additional ratifications. Because there was no longer an active controversy for the
court to decide, the issue was moot.
13
Scholars continue to debate whether Congress’s extension of the ratification period for
the proposed Equal Rights Amendment was a valid exercise of its Article V powers,
and the issue remains unsettled by the courts.
27th Amendment (Congressional Salaries). In 1992, constitutional amendment ratification
deadlines again became an issue when it became apparent that the required three-fourths of states
had submitted ratifications on the 27th amendment. The amendment was proposed to the states
in 1789, but the final ratifications occurred more than 200 years later; the text of Congress’s
proposal to the states did not include a deadline for ratification.
In submitting their ratifications, several states—including Minnesota, in 1989—noted the
Coleman precedent and the significant passage of time since the amendment was proposed.
14
The long passage of time did not prevent the amendment from being certified as properly
ratified, and Congress has not taken any action since ratification to suggest that it disagrees with
the certification.
The congressional process for submitting a proposed amendment to the states
for ratification requires a two-thirds vote, in each body, of all members
present and voting on the question.
State of Rhode Island v. Palmer (“National Prohibition Cases”). In 1920, the Supreme
Court addressed a series of challenges to the validity of the 18th amendment
(prohibition). Several cases were consolidated and are commonly referred to as the
“National Prohibition Cases.”
12
Idaho v. Freeman, 529 F.Supp. 1107, 1152 (D. Idaho, 1981). The district court case also addressed the
powers of a state to reject an amendment or rescind a prior ratification. These issues are discussed later in this
publication.
13
Idaho v. Freeman, 459 U.S. 809 (1982).
14
See Minnesota Laws 1989, Resolution No. 6; See also 138 Cong. Rec. S8387 (1992) (Illinois); 138
Cong.
Rec. S6837 (1992) (Colorado); 135 Cong. Rec. 5821 (1989) (Iowa).
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Included among the legal challenges was a claim that the amendment was invalid because
it was not properly approved by Congress. According to this theory, a two-thirds margin
of members voting on the proposed amendment was insufficient; instead, it was asserted
that a two-thirds vote of the entire membership of Congress was required (in essence,
members abstaining or not present at the time the vote was taken would be counted as
“no” votes).
The Supreme Court rejected this challenge, holding that “the two-thirds vote in each
house…is 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, present and absent.”
15
It
did not include further discussion or analysis of this point in making its decision.
16
The act of proposing an amendment to the states is sufficient evidence of
Congress’s determination that the amendment is “deemed necessary.”
The opening phrase of Article V provides that: “[t]he Congress, whenever two-thirds of both
houses shall deem it necessary, shall propose amendments…” (emphasis added). The Supreme
Court has held that an act of Congress to “deem” an amendment “necessary” is not required.
State of Rhode Island v. Palmer (“National Prohibition Cases”). In the 1920
“National Prohibition Cases,” the Court addressed a claim that the 18th amendment was
invalid because there was no evidence that Congress had “deemed it necessary” to amend
the Constitution.
The Supreme Court rejected this challenge, holding that the mere proposal of the
amendment “sufficiently shows that the proposal was deemed necessary by all who voted
for it. An express declaration that they regarded it as necessary is not essential.”
17
The
Court further noted that, in practice, prior amendments proposed by Congress had never
contained such a declaration.
18
The substance of a proposed amendment does not limit Congress’s discretion
to determine the method of ratification by states.
Among the key features of Congress’s Article V power is its authority to determine the method
of ratification—either by a state’s legislature or by a state convention. Of all amendments
proposed by Congress, only one—the 21st (repeal of prohibition)—was directed to be ratified by
state convention. All others have been submitted for ratification by each state’s legislature.
15
State of Rhode Island v. Palmer, 253 U.S. 350, 386 (1920).
16
The court’s opinion cites Missouri Pacific
Railway Co. v. Kansas, 248 U.S. 276 (1919) as support for its
ruling. This principle is also
supp
orted
by State of Ohio ex rel. Erkenbrecher v. Cox, 257 F. 334 (S.D. Ohio, 1919).
17
State of Rhode Island v. Palmer, 253 U.S. 350, 386 (1920).
18
Id.
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United States v. Sprague. In 1931, the Supreme Court heard a challenge to the validity
of the 18th amendment (prohibition). The challengers asserted that the amendment’s
substance required ratification by state conventions. The challengers believed that it was
the intent of the Constitution’s framers to limit the authority of state legislatures to cede
authority over personal liberties to the federal government; the right to enact prohibition,
in their view, was reserved to the people by the 10th amendment.
The Court rejected this argument. It noted the framers could have written Article V
differently: “If the framers of the instrument had any thought that amendments differing
in purpose should be ratified in different ways, nothing would have been simpler that so
to phrase Article V as to exclude implication or speculation…”
19
The opinion also relied on past practice; in the court’s view, many of the amendments
ratified by state legislatures affect rights in the same manner as prohibition—including
the 13th (abolition of slavery), 14th (due process, equal protection, and rights of
citizenship), and others. The Court’s unstated but clear implication was that, if the
challenge to the 18th amendment succeeded, many other widely accepted amendments
would be at risk of similar challenge.
20
There is no official role for the President of the United States in the
amendment process.
Although U.S. presidents often take political positions on proposed amendments as they are
being considered by Congress or the states, the text of Article V provides no official role for the
president in the proposal or ratification process.
Hollingsworth v. Virginia. In 1798, the Supreme Court heard a challenge to the 11th
amendment (state sovereignty). After approval by Congress, the proposed amendment
was sent to the states despite not having been approved by the president.
The Court held that a proposed constitutional amendment is not part of the “ordinary
business of legislation” that requires presidential approval, and upheld the amendment as
valid.
21
As part of its discussion, the Court noted the potential odd result if a presidential
veto were permitted, since the threshold to override a veto and the threshold for
congressional approval of a proposed amendment is the same—a two-thirds vote of both
houses.
22
19
United States v. Sprague, 282 U.S. 716, 732 (1931); see also United States v. Panos, 45 F.2d 888 (N.D. Ill.,
1930).
20
Id. at 734.
21
Hollingsworth v. Virginia, 3 U.S. 378, 381
(1798)
22
Id. at 379.
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Ceremonial Presidential Signatures and Other Presidential Acts. Despite a president’s lack
of veto authority, on several occasions presidents have taken on ceremonial—and sometimes
more formal—roles in the amendment submission and ratification process.
• In 1978, President Jimmy Carter signed Congress’s extension of the ratification period
for the proposed Equal Rights Amendment, acknowledging that “the Constitution does
not require that the President sign a resolution concerning an amendment to the
Constitution of the United States” but that he wanted to “demonstrate…full support for
the ratification of the equal rights amendment.”
23
• In 1971, President Richard Nixon participated as a witness in the ratification
certification process for the 26th amendment (voting rights based on age).
24
• In 1964 and 1967, President Lyndon Johnson participated as a witness in the ratification
certification process for the 24th amendment (poll taxes prohibited) and the 25th
amendment (presidential succession).
25
• In 1868, President Andrew Johnson issued a series of proclamations related to
ratification of the 14th amendment (due process, equal protection, and rights of
citizenship) by several southern states, pursuant to an act of Congress requiring him to do
so as a condition of the states’ return to full statehood following the Civil War.
26
• In 1865, President Abraham Lincoln wrote “Approved” and signed his name to the joint
resolution of Congress proposing the 13th amendment (abolition of slavery).
27
Within a
week of the president’s action, the U.S. Senate adopted a resolution affirming that a
presidential signature was unnecessary to the amendment’s proposal.
28
• In 1861, outgoing-President James Buchanan reportedly signed at least one version of
Congress’s joint resolution proposing the “Corwin” amendment (prohibiting elimination
of slavery by constitutional amendment).
29
23
See President Carter’s Remarks on Signing H.J. Res. 638, 2 Pub. Papers 1800 (October 20, 1978).
24
See https://www.archives.gov/federal-register/constitution/
25
Id.
26
See 15 Stat. 703 (Proc. 7 – Florida, North Carolina); 15 Stat. 704 (Proc. 8 – South Carolina); 15 Stat. 704
(Proc. 9 – Louisiana); 15 Stat. 705 (Proc. 10 – Alabama); 15 Stat. 708 (Proc. 12 – Georgia).
27
See Joint Resolution Submitting 13th Amendment to the States; signed by Abraham Lincoln and Congress,
February 1, 1865, at The Abraham Lincoln Papers at the Library of Congress, Series 3. General Correspondence.
1837-1897.
28
Cong. Globe, 38th Cong., 2nd Sess. 629-31 (1865).
29
Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History 2 (2004).
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Administration of the Ratification Process
The Archivist of the United States is responsible for administering the
ratification process, including certifying and publishing amendments that
have been ratified.
The Archivist of the United States, in conjunction with the Director of the Federal Register,
carries out various administrative duties related to submission of proposed amendments to each
state and receives ratification documents from states that choose to ratify a proposed amendment.
When an amendment is proposed, the archivist sends a notification to each state’s governor, who
then submits the proposed amendment to that state’s legislature.
When the archivist has received a sufficient number of state ratifications to indicate that an
amendment has been adopted, the archivist certifies the amendment and publishes its adoption in
the Federal Register.
30
Historically, certification of adopted amendments was a responsibility of the U.S. Secretary of
State. In 1951, the job was shifted to the Administrator of General Services, and in 1984 it was
delegated instead to the archivist.
31
The role of the archivist is a purely ministerial duty.
Courts have held that the archivist does not have authority to review claims alleging improper
ratification of an amendment by a state.
U.S. ex. rel. Widenmann v. Colby. In 1920, a challenge to the adoption of the 18th
amendment (prohibition) included claims that at least one state ratification was
improperly submitted to the secretary of state, who was then responsible for
administering the ratification process for the federal government.
The District of Columbia Court of Appeals held that the responsibility of the secretary of
state was “purely ministerial” and did not allow for the investigation of claims of
impropriety by the states. According to the court:
The secretary was not required, nor authorized, to investigate and determine
whether or not the notices stated the truth. To accept them as doing so, if in due
form, was his duty. As soon as he had received the notices from 36 of the states
that the amendment had been adopted, he was obliged, under the statute, to put
forth his proclamation. No discretion was lodged in him.
32
30
See 1 U.S.C., ch. 2, § 106(b).
31
For more information on the ratification and certification process, see National Archives, The Constitutional
Amendment Process,
https://archives.gov/federal-register/constitution.
32
U.S. ex. rel. Widenmann v. Colby, 265 F. 998, 999 (D.C. Cir. 1920).
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Leser v. Garnett. In 1922, the U.S. Supreme Court heard a challenge to the proper
ratification of the 19th amendment (women’s suffrage) by the states of Missouri,
Tennessee, and West Virginia on grounds similar to the claims in Colby. In rejecting
the challenge, the Court noted that, “[t]he proclamation by the secretary of state certified
that from official documents on file in the Department of State it appeared that the
proposed amendment was ratified by the legislatures of 36 states…”
33
and that as each
ratifying state “had power to adopt the resolutions of ratification, official notice to the
Secretary, duly authenticated, that they had done so, was conclusive upon him…”
34
U.S. v. Sitka. In 1988, a challenge to the proper ratification of the 16th amendment
(income tax) was filed by a taxpayer who was indicted on several counts for failure to file
income tax returns. The taxpayer challenged the authority of the secretary of state to
certify ratifications as an unconstitutional delegation of power from the legislative branch
to the executive branch, and a violation of separation of powers principles.
The 2nd Circuit Court of Appeals rejected the challenge, holding that the authority of the
secretary of state to certify ratification was “purely ministerial; it could not and did not
affect the process of ratification itself, which is self-executing upon completion.”
35
Amendments are effective upon ratification by three-fourths of states, not
upon the proclamation of the archivist
.
The effective date of an amendment that has been ratified by the states is not contingent upon
final certification by the archivist, or any other federal official: according to Article V, an
amendment is effective and in full force as of the time it has received a sufficient number of state
ratifications to be adopted.
Dillon v. Gloss. In 1921, the Supreme Court heard a challenge to the effective date of the
18th amendment (prohibition): an individual was convicted of violating its provisions
(and associated implementing laws), which became effective one year following
ratification of the amendment. The violations occurred one day and one year after a
sufficient number of states had ratified the amendment, but before the secretary of state
formally proclaimed the amendment’s ratification.
The Court held that proclamation of the amendment’s adoption “is not material, for the
date of its consummation, and not that on which it is proclaimed, controls.”
36
33
Leser v. Garnett, 258 U.S. 130, 137 (1922).
34
Id.
35
U.S. v. Sitka, 845 F.2d. 43, 47 (2
nd
Cir. 1988).
36
Dillon v. Gloss, 256 U.S. 368, 376 (1921). In the Widenmann case a year earlier, the D.C. Court of Appeals
reached a similar conclusion: an amendment’s “validity does not depend in any wise upon the proclamation. It is
the approval of the requisite number of states, not the proclamation, that gives vitality to the amendment and makes
it a part of the supreme law of the land.” 265 F. 998 at 1000 (1920).
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Whether Congress must finally “promulgate” an amendment after
ratification is unclear.
Supreme Court case law suggests that Congress may have some role in affirming that
amendments have been ratified, but what that role is, and how it operates, has not been clarified.
Coleman v. Miller. In 1939, the U.S. Supreme Court held that Congress—rather than the
Court—has ultimate authority in determining whether a state’s amendment ratification was
completed within a reasonable time and that other procedural requirements have been met.
The decision has resulted in questions about the need for Congress to act on an
amendment’s ratification, or whether the Archivist of the United States can proclaim an
amendment’s ratification independently. These issues were not resolved by the Court’s
decision.
27th Amendment (Congressional Salaries). In 1992, a memorandum written to President
George H. W. Bush by the Department of Justice’s Office of Legal Counsel discussed the
“promulgation” requirement in detail.
In the context of the apparent ratification of the 27th amendment, the memo concluded that
requiring a final act of Congress before an amendment is fully ratified was inconsistent with the
text of Article V and inconsistent with the majority of past practices.
37
It suggested that, if an act
of Congress were required to finalize a ratification, each constitutional amendment ratified since
the 14th amendment would be invalid.
Despite the conclusion of the Office of Legal Counsel, the Coleman case does leave open
reasonable questions about oversight of the ratification process—particularly in circumstances
where a discretionary judgment is required. To date, these questions remain unresolved.
14th Amendment (Due Process, Equal Protection, and Rights of Citizenship). In 1868,
Congress acted to affirm ratification of the 14th amendment. The secretary of state had already
proclaimed the amendment ratified, but had also noted some controversy over the status of
ratifications in New Jersey and Ohio.
The congressional resolution proclaiming the amendment ratified brought clarity to Congress’s
view of New Jersey and Ohio’s attempted rescissions of their prior ratifications (Congress did
not recognize the attempted rescissions), but did not bring clarity to whether such an act was
necessary for the amendment to be finally ratified.
Congress’s action on the 14th amendment is a historical outlier that appears motivated, at least
partly, by the political climate and national circumstances unique to the post-Civil War
reconstruction era.
37
See Office of Legal Counsel, Memorandum Opinion for the Counsel to the President, from Timothy E.
Flanigan, Assistant Attorney General (November 2, 1992).
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Part 2: Powers and Duties of State Legislatures and State
Government
The Article V constitutional amendment process is a unique function for state legislatures: while
a legislature normally must look to its own state constitution for a source of authority to act, the
authority to participate in the process of amending the U.S. Constitution is rooted directly and
explicitly in its own text. And while the process of ratification or application for an Article V
convention looks, in many respects, like the ordinary process of lawmaking, it is in fact an
entirely separate legislative function.
This distinction results in some important—but often subtle—differences between the
constitutional amendment process and the normal operations of a legislature. Acts of a legislature
to ratify an amendment or apply for a convention must conform to both federal and state
procedural requirements and customs.
This part is divided into the following sections:
(1) Source of State Legislative Authority
(2) Procedural Issues in the State Legislative Process
(3) Participation of Voters in the State Ratification Process
(4) Alternatives to State Ratification: Rescission and Rejection
(5) Ratification of Proposed Amendment by State Convention
Separate discussion of the role of state legislatures and state government in Article V
conventions is contained in Part 3.
Source of State Legislative Authority
When Congress directs state legislatures to consider ratification of a proposed
amendment, a state’s representative lawmaking body is the only entity
empowered to ratify the amendment on behalf of the state.
Hawke v. Smith. In 1920, the U.S. Supreme Court heard a challenge to Ohio’s
ratification of the 18th Amendment (prohibition). Ohio’s General Assembly had adopted
a resolution ratifying the amendment in early 1919. Ohio’s state constitution, however,
reserved to the people “the legislative power of the referendum on the action of the
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General Assembly ratifying any proposed amendment to the Constitution of the United
States.”
38
The Court held that Ohio’s constitutional allowance for a referendum was inconsistent
with the ratification requirements of Article V. Pointing to other provisions of the
constitution where a direct vote of the people is required (such as election of members of
the House of Representatives), the Court reasoned that the framers could easily have
chosen to allow an alternate method for ratification by a vote of the people. Instead,
ratification power is limited only to the state legislatures, or conventions of the states if
Congress so directs.
39
The power of a state legislature to ratify an amendment is not an act of
ordinary state lawmaking that may be altered or restricted by the people.
The people of a state are empowered through their state constitutions to organize and direct their
state’s ordinary lawmaking functions. In some states, this includes a right for direct action
through an initiative and referendum process to enact or review laws. However, the people are
not empowered—except through their elected state and federal representatives—to participate
directly in process of ratifying a proposed amendment.
Hawke v. Smith. In its Hawke decision, reviewing Ohio’s ratification of the 18th
amendment (prohibition), the Supreme Court looked to the source of authority that
provides the constitutional amendment proposal and ratification process. According to
the Court, the U.S. Constitution is the direct source of power for state legislative
participation in the ratification process. Because the people of the state have assented to
the federal Constitution, they have by definition assented to the amendment process as
described in Article V.
The Court distinguished the ratification process from the process of ordinary lawmaking,
which is derived from the powers granted to a state legislature by the people of the state:
[R]atification by a state of a constitutional amendment is not an act of legislation
within the proper sense of the word. It is but the expression of assent of the state
to a proposed amendment…
It is true that the power to legislate in the enactment of laws of a state is derived
from the people of the state. But the power to ratify a proposed amendment to the
federal Constitution has its source in the federal Constitution. The act of
38
Ohio Const. art. 2, § 1 (as amended November 5, 1918).
39
Hawke v. Smith, 253 U.S. 221, 227 (1920). In 2015, the U.S. Supreme Court referred to this precedent
favorably, distinguishing the power of a state legislature to ratify a proposed amendment with the process of
lawmaking in the context of redistricting. See Arizona State Legislature v. Arizona Independent Redistricting
Commission, 135 S.Ct. 2652, 2666-67 (2015).
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ratification by the state derives its authority from the federal Constitution to which
the state and its people have alike assented.
40
Leser v. Garnett. In 1922, the Supreme Court heard a challenge to the procedures of
Missouri, Tennessee, and West Virginia in ratifying the 19th amendment (women’s
suffrage). The challengers pointed to provisions in each state’s constitution and
legislative rules of procedure that allegedly restricted the power of each state’s legislature
to ratify the amendment.
41
The Leser Court rejected the challenge, analyzing the issue nearly identically to the
analysis of the Hawke 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.
42
Procedural Issues in the State Legislative Process
State legislatures may adopt procedural rules for ratification of a proposed
constitutional amendment, as long as final ratification remains a function of
the legislative body.
Courts have generally upheld state procedural requirements that provide stricter standards for
ratifying a proposed amendment compared to ordinary legislation, so long as those stricter
standards still conform to the Article V mandate that the ratification be an act of the legislative
body.
A complete list of state constitutional provisions and legislative rules that provide unique
procedural standards for ratification of a proposed constitutional amendment is included in
Appendix 1. Additional customs and practices specific to Minnesota procedure are included
within the text of this section.
Litigation History on Procedural Rules. Over time, a variety of procedures related to
constitutional amendments have been ratified into state constitutions or adopted by state
40
Id. at 229.
41
Leser v. Garnett, 258 U.S. 130, 136-137 (1922). Though the Supreme Court did not describe the nature of
the alleged restrictions on legislative power in its decision, the Tennessee restriction was a requirement for an
intervening election prior to the legislature’s action on ratification. The restriction in West Virginia was a
procedural rule against acting on the same matter twice (the state senate had originally acted to reject the
amendment). In Missouri, it was alleged that the state constitution prohibited federal constitutional amendments that
would impair the state’s right of self-government. See Leser v. Garnett, 114 A. 840 (Ct. App. Md., 1922).
42
Id. at 137 (citing Hawke v. Smith No. 1. 253 U.S. 221 (1920); Hawke v. Smith No. 2, 253 U.S. 231 (1920);
State of Rhode Island v. Palmer (National Prohibition Cases), 253 U.S. 350 (1920)).
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legislatures in the form of procedural rules. Several of these procedures have been subject to
legal challenge:
• Supermajority Vote Requirements. In 1975, a supermajority vote requirement was
upheld in a federal district court ruling written by then-Judge John Paul Stevens related to
Illinois’s ratification of the proposed Equal Rights Amendment. The Illinois Constitution
and the procedural rules of the Illinois Legislature require a three-fifths vote to ratify a
proposed constitutional amendment.
According to the Court, “…the framers intended to treat the determination of the vote
required to pass a ratifying resolution as an aspect of the process that each state
legislature, or state convention, may specify for itself. The act of ratification is an
expression of consent to the amendment by that body. By what means that body shall
decide to consent or not to consent is a matter for that body to determine for itself.”
43
As of 2016, at least four states require a vote greater than a constitutional majority for
ratification: Alabama (three-fifths of elected membership); Colorado (two-thirds of
elected membership in House); Illinois (three-fifths of elected membership); and Kansas
(two-thirds of elected membership).
• Minnesota Practice. The Minnesota Constitution is silent on the issue of U.S.
constitutional amendment ratifications, and there are no surviving records to suggest
the Minnesota Legislature has ever adopted rules establishing a supermajority vote
requirement for ratification of an amendment or application for a convention.
• Allowing Lieutenant Governor to Break a Tie. In 1937, the Kansas Senate considered
a resolution to ratify the proposed Child Labor Amendment, and the vote among 40
senators resulted in a tie, 20-20. Kansas’s lieutenant governor, who also acted as
presiding officer of the Senate, cast a tiebreaking vote in favor of ratification.
A group of Kansas legislators—including all 20 senators who had voted against
ratification—filed suit challenging, among other things, the right of the lieutenant
governor to cast a vote. In 1939, the U.S. Supreme Court heard the challenge, but failed
to agree on whether it had authority to issue a ruling.
44
The practical effect of this
deadlock was to uphold the lieutenant governor’s right to vote.
While many states may allow this tiebreaking procedure as a matter of normal legislative
practice, at least one state (North Dakota) allows the lieutenant governor to cast a
tiebreaking Senate vote on constitutional amendment ratifications by explicit rule.
45
43
Dyer v. Blair, 390 F.Supp. 1291, 1306-1307 (N.D. Ill. 1975). Judge Stevens would later be appointed
associate justice of the U.S. Supreme Court.
44
Coleman v. Miller, 307 U.S. 433, 446-47 (1939). More detailed discussion of justiciability and political
questions issues is contained in Part 4.
45
See Senate and House Legislative Manual 2015-2016, 64th Leg. (ND 2015), Senate Rules 323, 339.
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• Minnesota Practice. In Minnesota, the Senate President is elected from among the
Senate membership; the lieutenant governor is not an officer of either legislative body
and does not have a role in voting or any other aspects of legislative procedure.
• Requiring an Intervening Election between an Amendment Proposal by Congress
and Ratification by the State Legislature. The state constitutions of Illinois, Florida,
and Tennessee all contain provisions that prohibit consideration of a proposed
amendment until an election of the legislature has occurred following the proposal.
Courts have noted Article V’s delegation of power, and the practical impact of the
intervening election requirement, in overturning these provisions: “[w]e do not believe
that delegated federal power may be inhibited by a state constitutional provision which,
in practical effect, determines whether votes of legislators opposing an amendment shall
be given greater, lesser, or the same weight as the votes of legislators who favor the
proposal.”
46
• Minnesota Practice. There are no surviving records to suggest that an intervening
election requirement has ever been proposed or enacted in Minnesota.
State legislatures have varying rules related to the style of legislative
document used to ratify a proposed amendment.
Procedural rules in at least 11 state legislatures require ratification of proposed amendments by
joint resolution, and at least require ratification by concurrent resolution. It is likely that many
other states use one of these forms as a matter of custom and practice. There does not appear to
be any case law or past practice of Congress to suggest that any particular form of resolution is
preferable to another.
In some states, the style of resolution used to ratify a proposed amendment may impact the vote
threshold required for adoption.
A list of legislative rules that explicitly require a certain resolution style is included in Appendix
1.
Minnesota Practice. In Minnesota, amendment ratifications and applications for Article V
conventions were customarily styled as joint resolutions through much of the 19th and early 20th
centuries. Ratifications of the 13th and 14th amendments—the first two amendments ratified by
Minnesota after statehood—were styled as concurrent resolutions.
Beginning with ratification of the 23rd amendment (District of Columbia Electoral Rights) in
1961, Minnesota’s ratifications and applications for Article V conventions have been styled more
simply as: “a resolution.”
46
Dyer v. Blair, 390 F.Supp. 1291, 1308 (N.D. Ill. 1975) (overturning Illinois’ provision); see also Walker v.
Dunn, 498 S.W.2d 102 (Tenn. 1972) (overturning Tennessee’s provision); Trombetta v. State of Florida, 353
F.Supp. 575 (M.D. Fla. 1973) (overturning Florida’s provision).
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Gubernatorial approval of constitutional amendment ratifications is likely not
required by Article V.
Though never litigated directly, ratification of proposed constitutional amendments have been
treated as acts that are not subject to a governor’s approval or veto authority. This does not
prevent a state from presenting a ratification to the governor according to its own customs and
practices.
Hollingsworth v. Virginia. In 1798, the Supreme Court held that the president’s veto
authority does not extend to Congress’s proposal of an amendment to the states for
ratification, noting that the text of Article V refers specifically to the power of Congress
to propose amendments.
47
Since Article V similarly refers specifically to the power of
state legislatures (or state conventions) to ratify an amendment, the Hollingsworth
precedent could support the argument that a state’s governor has no role in the ratification
process.
Dillon v. Gloss. In 1921, the Supreme Court heard an appeal of an
individual’s conviction for violating the 18th amendment (prohibition) and
related laws.
The acts that resulted in the conviction occurred January 17, 1920. The terms of the 18th
amendment provided an effective date of one year after final ratification. In deciding the
day on which the amendment had been finally ratified, the court took “judicial notice” of
the final acts of the state legislature in determining each state’s ratification date. The
court did not appear to consider any subsequent actions by a state’s governor following
ratification by its legislature.
48
Historic Practices of Federal Government. The historic practice of Congress and federal
officials in certifying amendment ratifications suggests that presentment is not required.
The official record of the Constitution and its amendments published at the direction of Congress
relies on the last action of a state’s legislature to determine the date of that state’s ratification,
without regard to whether the governor took action to approve the amendment.
49
In 1911, the Office of Solicitor in the U.S. Department of State prepared a memorandum on the
necessity of a governor’s approval, in the context of the state of Washington’s apparent
ratification of the 16th amendment (income tax). Washington’s ratification had been submitted
to the U.S. Secretary of State as required, but the ratification did not include the approval of the
governor, which appeared to be in violation of Washington’s state constitution.
47
Hollingsworth v. Virginia, 3 U.S. 378 (1798).
48
Dillon v. Gloss, 256 U.S. 368, 376 (1921).
49
See Amendments to the Constitution of the United States of America, Constitution of the United States of
America: Analysis and Interpretation, United States Congress, U.S. Government Printing Office (2014), available at:
https://www.congress.gov/constitution-annotated/. Last accessed December 14, 2015.
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The solicitor’s memo includes a thorough review of gubernatorial approval practices across
many states for earlier constitutional amendments and appears to conclude—based on those past
practices and a consideration of state constitutional law—that the governor’s signature of
approval on Washington’s amendment ratification was not required.
50
Similarly, in 1913, the Office of the Solicitor reviewed an attempt by Arkansas’s governor to
veto that state’s ratification of the 16th amendment. The solicitor advised the U.S. Secretary of
State that the governor’s attempted veto was of no legal effect and that the state of Arkansas
should be included among the list of states ratifying the 16th amendment.
51
In proclaiming the
amendment ratified, the secretary of state acted consistently with this advice.
Minnesota Practice. Despite the lack of a requirement under Article V, Minnesota resolutions
ratifying constitutional amendments have customarily been presented to the governor.
There are no surviving legislative records to suggest that Minnesota’s practice of presentment
has ever interfered with the ability of the legislature to certify an amendment ratification as
required by the U.S. Constitution and federal law.
In 1999, the Joint Rules of the Minnesota House and Senate were amended to exempt joint
resolutions ratifying a proposed amendment, or applying for a convention, from the presentment
process—instead requiring the Revisor of Statutes to deposit the resolution directly with the
Secretary of State.
52
To date, the legislature has not acted to ratify an amendment or apply for a
convention in the period since this rule was adopted.
Despite the joint rule, a joint resolution that contains an amendment ratification or application for
a convention and that also contains another act of the legislature where presentment to the
governor is required, will be presented for signature as required by the Minnesota Constitution.
53
Typographical and other technical errors in processing a resolution do not
invalidate ratification.
With some apparent regularity, state resolutions to ratify proposed amendments have contained
technical, grammatical, and other typographical errors. These errors have led to legal challenges.
50
Memorandum from P.D.R, Office of the Solicitor, U.S. Department of State, to the U.S. Department of State
“Memorandum on the necessity for the governor’s approval of an amendment to the federal constitution approved
by the legislature of the state.” (April 20, 1911).
51
Letter from P.D.R, Office of the Solicitor, U.S. Department of State, to the U.S Secretary of State (February
20, 1913).
52
For the current version of this rule, see 88th Legislature, Temporary Joint Rules of the Senate and House of
Representatives, 2.07 (2013).
53
These types of resolutions are not a customary part of Minnesota’s legislative process, but have been
introduced and heard in committee. For an example of a proposed resolution that contains both an application for a
convention and other items, see S.F. 17, 88th Leg. (Minn. 2013) requesting that Congress propose a constitutional
amendment related to the rights of artificial entities to engage in political speech or, in the alternative, applying for a
convention for that purpose.
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The challenges have not succeeded.
16th Amendment (Income Tax). The 16th amendment has been subject to several legal
challenges, based on claims that the ratifying resolutions of many state legislatures contained
“typographical and punctuation errors.” According to one court’s description, these errors are
alleged to be:
…errors of diction, capitalization, punctuation, and spelling. The text Congress
transmitted to the states was: “The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment among the several
States, and without regard to any census or enumeration.” Many of the instruments
neglected to capitalize “States,” and some capitalized other words instead. The
instrument from Illinois had “remuneration” in place of “enumeration”; the instrument
from Missouri substituted “levy” for “lay”; the instrument from Washington had
“income” not “incomes”; others made similar blunders.
54
In each of the cases, the challengers have asserted that these errors invalidate the state’s
ratification. Courts have consistently rejected these claims:
• United States v. Wojtas. In 1985, a district court in Illinois rejected the challenge,
holding that review of state ratifications are a nonjusticiable political question.
55
• Sisk v. Commissioner of Internal Revenue. In 1986, the 6th Circuit Court of Appeals
held that the apparent errors did not go to the meaning of the amendment and that
“inasmuch as the state legislatures are empowered by the constitution only to ratify or
reject and not to amend a proposed amendment, it must be presumed, in the absence of
any indication to the contrary, that they intended to ratify it.”
56
The court further found
no evidence of fraud in the secretary of state’s certification that the amendment had been
ratified.
• United States v. Thomas. In 1986, the 7th Circuit Court of Appeals held that review of
state ratifications was not proper since the secretary of state had already declared the
amendment ratified. In discussing the way these errors were handled, the court noted that
states had produced more substantial errors when ratifying earlier amendments, but those
errors did not prevent the proposed amendments from being ratified.
57
• Memorandum of Solicitor, Department of State. In 1913, the Office of the Solicitor,
in the U.S. Department of State, issued a memorandum that contains a comprehensive
review of the many typographical, grammatical, and procedural errors included in state
54
United States v. Thomas, 788 F.2d 1250, 1253 (7th Cir. 1986).
55
United States v. Wojtas, 611 F.Supp. 118 (N.D. Ill. 1985).
56
Sisk v. Commissioner of Internal Revenue, 791 F.2d 58, 61 (6th Cir. 1986).
57
United States v. Thomas, 788 F.2d 1250, 1253 (7th Cir. 1986).
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ratification documents that had been submitted on the 16th amendment and other
amendments proposed up until that time.
58
The types of errors reviewed by the solicitor’s memo include:
• Many typographical errors made by state legislatures in printing their resolutions
ratifying several proposed amendments. According to the memo, only four state
ratifications (out of a total 37 ratifications that had been submitted at the time of the
memo) accurately and precisely quoted the 16th amendment’s text as proposed by
Congress. Many ratifications of earlier amendments also contained errors.
• The Kentucky Legislature’s quick action to ratify the 16th amendment before the
proper paperwork had even been submitted to the legislature by the governor.
59
• Minnesota’s failure to submit a copy of its resolution ratifying the 16th amendment
to the U.S. Secretary of State. Minnesota instead submitted a notice of ratification in
the form of a letter, written by the governor’s secretary, indicating that the ratification
had occurred.
• The Arkansas governor’s attempted veto of his state legislature’s ratification of the
16th amendment.
It does not appear that any of the issues raised in the memo prevented a state’s ratification
from being included in the secretary of state’s proclamation that the applicable
amendment had been ratified.
Participation of Voters in the State Ratification Process
Several courts have held that the voters have no direct role in ratification of a proposed
amendment; a final determination on ratification is a function of the state legislature and may not
be delegated to the voters. However, the right of states to conduct “advisory” referendums has
been upheld.
Article V does not permit submission of a proposed amendment to the voters
in a binding referendum.
Courts have rejected nearly all attempts to submit a state legislature’s ratification of a proposed
amendment to the voters. These attempts were particularly common in response to the proposed
58
Office of the Solicitor, United States Department of State, “Ratification of the 16th Amendment to the
Constitution of the United States,” Memorandum (February 15, 1913).
59
In addition to the 1913 memo, Kentucky’s actions were also considered at length in a separate memo of the
solicitor. See Memorandum from P.D.R, Office of the Solicitor, U.S. Department of State, to the U.S. Department
of State, “Kentucky’s ratification of the sixteenth amendment to the federal constitution. Power of a state to
withdraw the ratification already given to a constitutional amendment” (March 21, 1912).
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18th amendment (prohibition).
Prohibition and Women’s Suffrage Amendments
• Hawke v. Smith. In 1918, the voters of Ohio adopted a state constitutional amendment
reserving the right of the people to approve, by referendum, any action of the Ohio
General Assembly ratifying a proposed amendment to the U.S. Constitution.
60
The following year, Ohio’s General Assembly acted to ratify the proposed 18th
amendment (prohibition). As directed by the General Assembly’s resolution, the
governor forwarded the resolution to the U.S. Secretary of State. However, a referendum
on November 4, 1919, resulted in Ohio voters rejecting ratification of the amendment.
The U.S. Supreme Court held that the referendum violated Article V. In the Court’s
view, the power of ratification by state legislatures is derived directly from Article V and
is not an ordinary act of legislation over which a state’s people have authority to require a
referendum.
61
• State Supreme Courts. The U.S. Supreme Court’s Hawke decision overturned a prior
decision of the Ohio Supreme Court holding that the referendum on the proposed 18th
amendment was valid.
62
In a separate proceeding, but on the same grounds, the U.S.
Supreme Court also overturned a similar ruling of the Ohio Supreme Court on a
referendum for the proposed 19th amendment (women’s suffrage).
63
Around the same time as the Hawke decisions, state supreme courts in California,
Michigan, Oklahoma, Missouri, and Maine all rejected attempts to submit state
legislative ratifications of the proposed amendment to the voters based on an analysis of
the requirements of Article V.
64
State supreme courts in Arkansas, Oregon, and Colorado similarly rejected efforts to
submit ratification of the 18th amendment to the voters. However, each of these courts
relied on an interpretation of the initiative and referendum provisions in their own state
constitution, rather than on an analysis of the legislature’s authority under Article V of
the U.S. Constitution, to reach its conclusion.
65
60
See Ohio Const. art. 2, § 1 (as amended November 5, 1918).
61
Hawke v. Smith, 253 U.S. 221 (1920). Ohio would go on to conduct a referendum in 1933 on the proposed
21st amendment (repeal of prohibition). Its constitutional referendum language was repealed in November 1953.
62
Hawke v. Smith, 126 N.E. 400 (Ohio 1919).
63
Hawke v. Smith, 253 U.S. 231 (1920).
64
See Barlotti v. Lyons, 189 P. 282 (Cal. 1920); Decher v. Vaughn, 177 N.W. 388 (Mich. 1920); State v.
Morris, 191 P. 364 (Okla. 1920); Carson v. Sullivan, 223 S.W. 571 (Mo. 1920); In re Opinion of the Justices of the
Supreme Court of Maine, 107 A. 673 (Me. 1919).
65
Whittemore v. Terral, 215 S.W. 686 (Ark. 1919); Herbring v. Brown, 180 P. 328 (Ore. 1919); Prior v.
Noland, 188 P. 729 (Colo. 1920). While the Colorado Court’s decision was primarily based on an interpretation of
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Like Ohio’s Supreme Court, a decision of the Washington Supreme Court concluded
that Article V does give the voters authority to review the ratification of an amendment
by popular vote.
66
However, the U.S. Supreme Court’s Hawke decision means the
Washington court’s analysis is likely no longer good law.
Proposed Equal Rights Amendment
• Montana. In 1974, the Montana Supreme Court rejected an attempt to place the
legislature’s prior ratification of the proposed Equal Rights Amendment on the ballot as a
referendum question, based on analysis of the requirements of Article V.
In its decision, the Court noted that the referendum would “have been a useless act, since
the voters cannot constitutionally compel the legislature to rescind its ratification...”
67
Article V may permit submission of a proposed amendment to the voters in an
advisory referendum.
While a referendum that binds the acts of the legislature (either explicitly or in practical effect) is
not permissible, the power of a legislature to submit a proposed amendment to the voters in a
purely advisory capacity has been upheld once, but has a mixed record in state advisory
opinions.
Proposed Equal Rights Amendment
• Nevada. In 1978, the Nevada Supreme Court heard a challenge to a state statute that
required a nonbinding referendum, related to ratification of the proposed Equal Rights
Amendment. The law explicitly provided that the referendum did not place any legal
requirement on legislators to vote on ratification in a particular way. The court upheld
the referendum requirement, finding that it “simply specifies a means by which to assist
the legislature whether to consent or not to consent to the proposed amendment.”
68
An appeal made to the U.S. Supreme Court to prevent the referendum from occurring
was rejected by Circuit Justice Rehnquist: “If each member of the Nevada Legislature is
free to obtain the views of constituents in the legislative district which he represents, I
can see no constitutional obstacle to a nonbinding, advisory referendum of this sort.”
69
• Virginia. In 1977, the Virginia Attorney General advised the General Assembly that it
may, as an alternative to a binding referendum on ratification of the proposed Equal
the state constitution, the decision also notes that the referendum would have been unconstitutional under Article V,
even without the state constitutional analysis.
66
Mullen v. Howell, 181 P. 920 (Wash. 1919).
67
State ex. rel. Hatch v. Murray, 526 P.2d 1369 (Mont. 1974).
68
Kimble v. Swackhamer, 584 P.2d 161, 163 (Nev. 1978).
69
Kimble v. Swackhamer, 439 U.S. 1385, 1388 (1978).
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Rights Amendment, conduct a referendum that is “purely advisory and not a precondition
to voting on the amendments.”
70
27th Amendment (Congressional salaries)
• Idaho. In 1988, an advisory referendum on ratification of the proposed 27th amendment
(Congressional salaries) was conducted in Idaho.
71
The referendum occurred despite
advice from Idaho’s attorney general that it likely conflicted with Article V.
The advisory opinion distinguished Idaho’s statute with the advisory referendum in
Nevada on the proposed Equal Rights Amendment by noting that Idaho law required the
referendum to occur prior to the legislature’s action to ratify a proposed amendment. A
similar restriction did not exist in Nevada.
72
18th Amendment (Prohibition)
• Massachusetts. In 1928, the Massachusetts Supreme Judicial Court responded to a
request for an opinion from the state’s House of Representatives, relating to a voter-
initiated proposal that would have required a statewide advisory vote on a potential repeal
of the 18th amendment (prohibition).
The Massachusetts justices found the initiative improper, because the initiative did not
propose a “law” or “measure” within the meaning of the state constitution. The court
reasoned that “the result of the vote...would be lacking in any effective force” and that
“[s]uperficial appearances cannot clothe with the attributes of law something in substance
vain and inoperative.”
73
Minnesota practice. With the exception of Minnesota’s ratification of the 21st amendment
(repeal of prohibition)—which required ratification by state conventions—all ratification activity
in Minnesota has occurred within the legislative process. Minnesota does not have a
constitutional allowance for either a binding or advisory citizen initiative or referendum.
During the 1919 legislative session, a bill was introduced to submit ratification of the 18th
amendment (prohibition) to the voters.
74
The bill was not enacted.
70
Opinion of the Attorney General to the Hon. Thomas J. Michie, Jr., 177-78 Va. Op. Atty. Gen. 154 (1977)
71
See Idaho Senate Concurrent Resolution 132 (1988).
72
Opinion of the Attorney General to The Hon. C.A. “Skip” Smyser, 1986 Idaho Op. Atty. Gen. 51 (1986).
73
Opinion of the Justices Relative to the Eighteenth Amendment of the Constitution of the United States, 160
N.E. 439, 440 (Mass. 1928).
74
See H.F. 31, 41st Leg., Reg. Sess. (Minn. 1919).
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Article V does not permit voter-initiated constraints on the ratification
process.
A series of cases address attempts by the voters of a state to force their legislature to either ratify
a proposed amendment, or to apply for a convention to address a particular amendment topic.
These attempts have been uniformly rejected.
The proposed voter initiatives typically incorporate punitive coercive measures intended to
ensure members’ compliance with the voters’ instructions. These additional measures have
included:
• Negative Ballot Designations for Legislators Who Fail to Comply. During the
1990s, interest in enacting term limits for members of Congress resulted in voter
initiatives in several states directing state legislative action on the issue. The
placement of a negative reference on the ballot of legislators who failed to comply
with the voters’ instructions was a common feature of these initiatives.
Initiatives in at least seven states have been overturned as an improper constraint on
the general powers of the state legislature and the individual power of legislators to
exercise their own discretion and judgment in office.
75
A representative example of a negative ballot designation is a Colorado initiative that
required placement of the phrase “DECLINED TO TAKE PLEDGE TO SUPPORT
TERM LIMITS” or “DISREGARDED VOTER INSTRUCTION ON TERM
LIMITS” on the general election ballot, next to the name of any legislator or
candidate who did not meet the demands of the initiative. Among the actions that
would trigger the ballot designation was a legislator’s failure to “vote in favor,”
failure to “second” a motion if needed, and failure to “vote against any attempt to
delay, table, or otherwise prevent a vote…”
76
• Withholding Legislator Pay until Action Is Taken. In the 1980s and 1990s,
interest in enacting a federal balanced budget amendment resulted in several voter
initiatives attempting to address the issue.
In California, an initiative directed the state legislature to apply to Congress for a
convention on the topic of a balanced budget amendment. If the legislature did not
approve the application within 20 legislative days, the pay and benefits of legislators
75
See Morrissey v. State of Colorado, 951 P.2d 911 (Colo. 1998); Bramberg v. Jones, 978 P.2d 1240 (Cal.
1999); Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999); League of Women Voters of Maine v. Gwadosky, 966
F.Supp. 52 (D.Me. 1997); Donovan v. Priest, 931 S.W.2d 119 (Ark. 1996); Opinion of the Justices, 673 A.2d 693
(Me. 1996); In re Initiative Petition No. 364, 930 P.2d 186 (Okla. 1996). A related case, but not impacting Article V
powers, addresses application of a voter-initiated negative ballot designation requirement on candidates for
Congress. Cook v. Gralike, 531 U.S. 510 (2001).
76
See Colorado Constitution, Article XVIII, § 12, approved as “Amendment 12” on November 5, 1996. This
section was later repealed and replaced with a voluntary term limits declaration. See Colorado Const. Article XVIII,
section 12a (2015).
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were to be withheld. If the legislature did not approve the application within 40
legislative days, the California Secretary of State was directed to transmit the
resolution to Congress on behalf of the state, circumventing the legislative process.
The California Supreme Court considered a variety of issues in a legal challenge to
the initiative, and ultimately prevented the proposed initiative from appearing on the
ballot on other grounds. But in reviewing the Article V issues, it found that
legislators must be “free to vote their best judgment…not puppet legislators coerced
or compelled by loss of salary or otherwise to vote in favor of a proposal they may
believe unwise.”
77
• Indefinite Continuation of Legislative Session. An initiative similar to California’s
was also proposed in Montana. In addition to withholding legislator pay, it required
the 1985 legislative session to continue indefinitely, if an application for an Article V
convention was not approved within 90 days after the start of the session. Montana’s
proposed initiative was declared void by its Supreme Court before appearing on the
ballot. The Court held that “such coercion is repugnant to the basic tenets of our
representative form of government…”
78
Minnesota Practice. The Minnesota Constitution does not provide a process for voter-initiated
action.
Alternatives to State Ratification: Rescission and Rejection
Nothing in Article V expressly prohibits a state legislature from rejecting an amendment, or from
changing its mind on ratification, but (absent litigation) whether such an action carries any legal
weight would likely be determined by the Archivist of the United States, in consultation with the
U.S. Congress. Although there are no definitive court rulings on this specific point, the Supreme
Court’s analysis on the issue of “political questions” in Coleman v. Miller supports this
conclusion.
79
Legal scholars, advocates, and other interested groups have written extensively about this issue
from a variety of perspectives. To date, a definitive ruling has not been necessary because all
amendments that have become a part of the constitution were ratified by a sufficient number of
states to make a small number of individual state rejections and rescissions irrelevant, and all
amendments that have not been ratified have fallen well short of the required number of state
77
AFL-CIO v. Eu, 686 P.2d 609, 613 (Cal. 1984). The court distinguished the Article V convention application
requirement with a separate provision requiring the legislature to adopt a resolution encouraging action by Congress
on the balanced budget amendment. The Court noted that the latter resolution may be permissible, because the
power to encourage action by Congress is not derived from Article V. Nevertheless, the whole initiative was
declared invalid on substantive grounds related to the proper formatting of an initiative within the meaning of the
California Constitution.
78
State ex. rel. Harper v. Waltermire, 691 P.2d 826, 829 (Mont. 1984).
79
Coleman v. Miller, 307 U.S. 433, 450 (1939).
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ratifications, even if state rescissions were declared invalid. A list of state legislative actions that
rescind, reject, or ratify an amendment after prior rejection is included in Appendix 2.
The legal status of rescission and rejection actions is unclear, but historical
examples do provide some guidance on how the issue might be handled.
Several amendments proposed to the states have presented the potential for a substantive dispute
over a state legislature’s right to reject or rescind its ratification of an amendment.
14th Amendment (Due Process, Equal Protection, and Rights of Citizenship). The 14th
amendment was proposed by Congress in June 1866. By July 1868, 28 states (which constituted
the required three-fourths of states) had ratified the amendment. However, prior to the 28th state
ratification, the state legislatures of both Ohio and New Jersey acted to withdraw their
ratification.
The secretary of state—who, at the time, was responsible for tallying state ratifications and
proclaiming amendments fully ratified—and Congress—which acted to accept the ratifications—
treated the actions of Ohio and New Jersey as ineffective. The secretary of state’s official
proclamation declaring the amendment ratified included Ohio and New Jersey as among the
ratifying states, and noted without apparent consequence that both had submitted documentation
indicating their withdrawal of consent to the amendment.
In the proclamation, the secretary of state cast doubt on the effectiveness of the withdrawals: “it
is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid,
and therefore ineffectual for withdrawing the consent of the said two states…”
80
The day
following the secretary of state’s proclamation, Congress adopted a joint resolution declaring the
amendment ratified, affirming the view of the secretary of state. The secretary of state then
issued a new proclamation, removing any doubt as to the status of the amendment.
81
Even after the amendment was proclaimed to be ratified, other states continued to submit their
ratifications—ultimately making the Ohio and New Jersey dispute relevant for only a short
period of time. The acts of the secretary of state and Congress in response, however, remain
instructive; while the actions of one Congress cannot bind the actions of another, the precedent
suggests federal skepticism about the ability of states to rescind their ratifications once
submitted.
82
15th Amendment (Voting Rights Based on Race). The 15th amendment was proposed by
Congress in 1869, and by February 1870 it appeared that the required number of states had taken
80
15 Stat. 706 (Proc. 11 – 1868).
81
15 Stat. 708 (Proc. 13 – 1868).
82
For further discussion of the 14th amendment issue, including discussion of the ministerial role of the
secretary of state and commentary about the validity of the action, and its relation to rescission issues surrounding
the proposed Equal Rights Amendment, see Power of a State Legislature to Rescind its Ratification of a
Constitutional Amendment, Memorandum Opinion for Counsel to the President, Office of Legal Counsel, U.S.
Department of Justice, 1 U.S. Op. Off. Legal Counsel 13, 1977 WL 18010 (O.L.C.) (February 15, 1977).
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action to ratify it. However, after it had initially acted to ratify the amendment, the state of New
York adopted a resolution withdrawing its ratification. The withdrawal occurred before the
Secretary of State had proclaimed the amendment finally ratified.
The proclamation of the secretary of state certifying the amendment’s final ratification noted
New York’s attempted withdrawal, but counted New York among the necessary three-fourths of
states to ratify the amendment.
83
It also separately noted Georgia’s later ratification of the
amendment—making the effect of New York’s withdrawal a nonissue.
84
Unlike the 14th amendment procedure, Congress did not take any action in response to the
secretary of state’s proclamation of the 15th amendment.
16th Amendment (Income Tax). The 16th amendment was proposed by Congress in 1909. In
1910, the Kentucky Legislature acted to ratify the amendment. A variety of procedural oddities
occurred in the course of the ratification—including that the legislature acted to ratify the
amendment before the governor had submitted the proper paperwork to each legislative body,
and an apparent effort was made to re-ratify the amendment at a later date, which succeeded in
only one body of the legislature.
Confusion as to the status of Kentucky’s ratification resulted in a memorandum by the Office of
the Solicitor in the U.S. Department of State, addressing both the early ratification, and whether
the second attempt to ratify the amendment carried any legal significance. The memorandum
discussed the issue of rescission, but concluded that the unique procedural steps taken by the
Kentucky Legislature did not result in any doubt about the status of Kentucky’s successful
ratification.
85
Proposed Child Labor Amendment. The Child Labor Amendment was proposed by Congress
in 1924. Initially, the amendment was rejected by at least 26 state legislatures and only
affirmatively ratified by five. However, by the mid-1930s, support for the amendment grew, and
many state legislatures that had previously rejected the amendment reversed course and took
action to ratify it.
Coleman v. Miller. The Kansas Legislature was among the state legislatures that
initially rejected the proposed Child Labor Amendment (in 1925) and later took action to
ratify it (in 1937). The ratification after prior rejection was challenged, and the case
reached the U.S. Supreme Court in 1939.
The Court reviewed the prior practice of Congress related to the 14th amendment, and
held that a determination about the effectiveness of a state’s ratification or rejection was
an issue that could not be resolved by the judicial branch:
83
16 Stat. 1131-1132 (1870).
84
Id.
85
See Memorandum from P.D.R, Office of the Solicitor, U.S. Department of State, to the U.S. Department of
State, “Kentucky’s ratification of the sixteenth amendment to the federal constitution. Power of a state to withdraw
the ratification already given to a constitutional amendment.” (March 21, 1912).
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…the question of efficacy of ratifications by state legislatures, in the light of
previous rejection or attempted withdrawal, should be regarded as a political
question pertaining to the political departments, with ultimate authority in the
Congress in the exercise of its control over promulgation of the adoption of the
amendment.
86
The Court found no basis to prevent Kansas state officers from submitting certification of
the legislature’s ratification to the federal government, implicitly suggesting that
Congress retains the authority to determine whether the ratification was improper.
Chandler v. Wise. The Kentucky Legislature also was among the state legislatures that
initially rejected the proposed Child Labor Amendment (in 1926) and later attempted to
ratify it (in 1937). A suit was filed challenging the legislature’s right to act on the
amendment a second time.
The U.S. Supreme Court ultimately upheld the state’s ratification because the issue was
moot—the governor had already certified the ratification to Congress. The U.S. Supreme
Court decision on the issue did not directly address the ability of a state to change its
position on ratification.
87
The Supreme Court’s decision overturned a ruling of the Kentucky Court of Appeals,
which held that a state was permitted to act only once and after that, “having acted, it has
exhausted its power further to consider the question without a resolution by Congress.”
88
Proposed Equal Rights Amendment. The Equal Rights Amendment was proposed by
Congress in 1972, and presented the potential for a substantive dispute over the right of a state to
reject or rescind its ratification of a proposed amendment. However, it resolved itself without
the establishment of a clear legal principle.
During the initial ratification period, state legislatures in at least five states that had previously
ratified the amendment took action to rescind their ratifications.
89
The constitutionality of these
rescissions was hotly debated by advocates for and against the amendment.
Idaho v. Freeman. The Idaho Legislature is among the legislatures that voted to rescind
its prior ratification of the proposed Equal Rights Amendment. In 1979, the State of
Idaho, along with a group of legislators representing Idaho, Arizona, and Washington
filed suit in an effort to compel the federal government to recognize the Idaho
Legislature’s rescission as valid.
86
Coleman v. Miller, 307 U.S. 433, 450 (1939).
87
See Chandler v. Wise, 307 U.S. 474 (1939).
88
Wise v. Chandler, 108 S.W.2d 1024 (Ky. Ct. App. 1937).
89
Rescinding states include Nebraska, Tennessee, Idaho, Kentucky, and South Dakota. Kentucky’s rescission
is subject to some dispute, on separate procedural grounds.
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After substantial discussion of the issues, a federal district court held that a state has the
power and right to rescind a ratification of a proposed constitutional amendment, if the
rescission occurs before three-fourths of states act to ratify the amendment:
The states are the entity embodied with the power to speak for the people during
the period in which the amendment is pending. To make a state’s ratification
binding with no right to rescind would give ratification a technical significance
which would be clearly inappropriate… Until the technical three-fourths has been
reached, a rescission of a prior ratification is clearly a proper exercise of a state’s
power granted by the article V phrase “when ratified,” especially when that act
would give a truer picture of local sentiment regarding the proposed amendment.
90
The U.S. Supreme Court initially agreed to hear an appeal of the district court’s ruling,
but later ordered the ruling vacated and the case dismissed. Once the time period for
ratification specified by Congress had expired, there was no longer an active controversy
to be decided.
91
State Attorney General Opinions. Attorneys general in several states have written advisory
opinions on the topic of rescission of ratification; all are in the context of the proposed Equal
Rights Amendment. These opinions include:
• California. In 1975, the California Attorney General noted the historic ineffectiveness of
state attempts to rescind a ratification, and the case law suggesting that Congress stands
as the final arbiter of the ratification process. The attorney general advised that, if
California were to rescind its ratification of the proposed Equal Rights Amendment, there
was no certainty that Congress would accept it as meaningful.
92
• Nebraska. In 1973, the Nebraska Attorney General responded to concerns about
apparent procedural errors in the legislature’s adoption of a resolution to rescind its
ratification of the proposed Equal Rights Amendment. After a review of applicable case
law, the opinion noted that a review of the procedural defects by a court was unlikely,
and there was no authority to suggest if or how Congress might address the apparent
errors.
93
• Tennessee. In 1973, the Tennessee Attorney General opined that the state was not
permitted to rescind its ratification of the proposed Equal Rights Amendment.
94
90
Idaho v. Freeman, 529 F.Supp. 1107, 1150 (1981).
91
See Idaho v. Freeman, 459 U.S. 809 (1982).
92
58 Ops. Cal. Atty. Gen. 830 (November 6, 1975).
93
Samuel Freedman and Pamela Naughton, ERA: May a State Change Its Vote, pg. 35 (Wayne State Univ.
Press 1978) (citing Nebraska Atty. Gen. Op. 13 (February 16, 1973)).
94
See Samuel Freedman and Pamela Naughton, ERA: May a State Change Its Vote, pg. 36 (Wayne State Univ.
Press 1978), (citing Letter from Assistant Attorney General Robert H. Roberts to State Representative Victor H.
Ashe (March 13, 1973)).
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• Idaho. In 1973, the Idaho Attorney General opined that the state had no jurisdiction to
rescind its ratification of the proposed Equal Rights Amendment. The opinion later
clarified that while the legislature had the “power” to act to rescind, the “right” to rescind
is ultimately a determination to be made by Congress.
95
• West Virginia. In 1973, the West Virginia Attorney General opined that the state
legislature was permitted to rescind, reaffirm, or reverse its position on ratification, if that
act occurs prior to ratification by three-fourths of states or rejection by one-fourth of
states.
96
Minnesota Practice. There are no surviving records to indicate the Minnesota Legislature has
attempted to rescind its prior ratification of a proposed constitutional amendment.
Of the amendments proposed during Minnesota’s statehood, the legislature has rejected two:
• Proposed Corwin Amendment. Proposed in 1861, the “Corwin” amendment
(prohibiting elimination of slavery by constitutional amendment) was implicitly rejected
by the legislature following its failure to take action to ratify it, and its subsequent
ratification of the 13th amendment (abolishing slavery).
The legislature’s rejection of the Corwin amendment had no practical impact on that
amendment’s failure to achieve full ratification: at its peak, the amendment was ratified
by only three states. In the years since it was proposed, at least two of those states have
taken action to rescind their ratifications.
• Proposed Child Labor Amendment. The proposed Child Labor Amendment was
rejected by vote of the Minnesota Legislature in 1925. Eight years later the issue
returned, and the proposed amendment was ratified with near-unanimous support.
The legislature’s rejection and later ratification of the proposed Child Labor Amendment
had little impact on the proposed amendment’s ultimate fortunes: to date, that amendment
remains at least ten states short of full ratification, and the substance of the amendment
has been largely made irrelevant by subsequent U.S. Supreme Court case law.
95
For exact language and additional details see Idaho Atty. Gen. Op. 73-116 (January 24, 1973) and subsequent
letter from Attorney General Wayne Kidwell to State Representatives C.L. Otter and Ralph J. Gines (January 27,
1975), as cited in Samuel Freedman and Pamela Naughton, ERA: May a State Change Its Vote, pg. 36 (Wayne State
Univ. Press 1978).
96
See Samuel Freedman and Pamela Naughton, ERA: May a State Change Its Vote, pg. 37 (Wayne State Univ.
Press 1978) (citing Opinion of Attorney General Chauncey H. Browning, Jr. to Howard D. Kenney (April 4, 1973).
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Ratification of Proposed Amendment by State Convention
To date, the 21st amendment (repeal of prohibition) represents the only amendment proposed by
Congress that has required ratification by a convention in each state, rather than by each state’s
legislature.
All but one state that existed in 1933 convened some form of convention for purposes of
ratifying the amendment. The conventions were organized and convened pursuant to acts of
each state’s legislature.
97
Several states considered submission of the ratifying convention structure to
the voters.
North Carolina. After the 21st amendment was proposed to the states, the North Carolina
Legislature presented voters with a referendum question on whether a convention should be
called; on December 5, 1933, the referendum failed. As a result of the state’s vote, no
convention was called and the state legislature took no further action to ratify the amendment.
The statewide referendum in North Carolina followed an advisory opinion from the Justices of
the North Carolina Supreme Court on the constitutionality of the legislation proposing the
referendum. While noting the possibility that the issue may be a question to be decided by the
U.S. Supreme Court, the advisory opinion supported the right of the legislature to choose the
method of convening a ratifying convention. The Chief Justice’s opinion advised that the
legislature “may exercise its own judgment and provide for the submission of the question…or it
may call such a convention in the exercise of its plenary powers…”
98
Alabama. In 1933, the Alabama Supreme Court issued an advisory opinion on the
constitutionality of legislation that would set the terms of the state’s ratification convention.
Among the requirements of the legislation was a statewide referendum on whether the
amendment should be ratified, and a requirement that delegates to the convention vote according
to the results of the referendum.
Comparing the ratification process to the process of electors casting ballots for president in the
Electoral College, the Alabama justices opined that the legislation proposed was permissible
according to the requirements of Article V.
99
Missouri. In 1933, the Missouri Supreme Court was presented with a challenge to its
referendum requirement, as applied to the laws governing the ratifying convention. The Court
held that the state’s referendum laws did not apply, because the ratification process remains a
97
While not expressly stated in Article V or in Congress’s proposal of the 21st amendment, an advisory opinion
in at least one state implicitly holds that an act of the legislature is required to organize and convene a state ratifying
convention. See In re Opinion of the Justices, 148 So. 407 (Ala. 1933).
98
In re Opinions of the Justices, 172 S.E. 474, 479 (N.C. 1933).
99
In re Opinions of the Justices, 148 So. 107 (Ala. 1933).
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federal function under Article V, even if the method chosen for ratification is by state
convention:
The calling of such convention is but a step necessary and incidental to the final action of
the convention in registering the voice of the state upon the amendment proposed by
Congress…it is a federal function which, in the absence of action by the Congress, the
state Legislature is authorized to perform.
100
Maine. In 1933, Maine’s Senate requested an advisory opinion on its legislation establishing a
process for convening a state ratifying convention. Among many procedural questions presented
was whether the following acts could be subject to a referendum vote: (1) an act of the
convention to ratify an amendment; and (2) the act of the legislature to establish the convention.
The justices opined that a referendum on ratification by the convention would be invalid, as a
violation of the requirements of Article V.
101
However, the justices also opined that a
referendum on the act of the legislature to establish the convention would be permissible,
according to the provisions of Maine’s state constitution.
102
Some states have enacted permanent statutes governing ratifying conventions.
Several states have enacted permanent statutes designed to govern the process of ratifying a
proposed constitutional amendment by state convention, in anticipation of the possibility that
Congress may choose that method of ratification again. Examples of these statutes include:
• Florida.
103
Florida statutes provide for an election of 67 statewide delegates to form its
state ratifying convention. The governor is required to call the election, which may
coincide with the state’s general election. The eligibility standards that apply to
candidates for the Florida House of Representatives apply to candidates to serve as
delegates at a ratifying convention.
To be a candidate for delegate, an individual must file an application that attests to the
candidate’s position on ratification (for, against, or unpledged). The candidate’s position
on ratification is required to appear on the election ballot.
The Florida statutes provide a modest level of detail about procedures of the convention,
including the power of delegates. A majority vote of all delegates elected is required for
the convention to finally ratify or reject a proposed amendment. Except for the officers
of the convention, no compensation for delegates is provided.
100
State ex. rel. Tate v. Sevier, 62 S.W. 2d 895 (Mo. 1933); see also Donnelly v. Myers, 186 N.E. 918 (Ohio
1933).
101
In re Opinion of the Justices, 167 A. 176, 179 (Me. 1933).
102
Id. at 180.
103
See Fla. Stat. § 107.01 et seq. (2015).
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The Florida statutes appear to have been first enacted in 1933—coinciding with its
ratification convention on the 21st amendment (repeal of prohibition). The provisions
appear largely unchanged since that time.
• New Mexico.
104
New Mexico statutes require the governor to call a ratifying convention
within ten days after a constitutional amendment is proposed. The state’s lieutenant
governor is designated as president of the convention, and each member of the state
legislature is automatically appointed as a delegate. The law does not provide for
election of any other delegates. Per diem and mileage expense reimbursements are
provided for delegates, for no more than three days.
The New Mexico statutes appear to have been in place since at least 1953.
• Ohio.
105
Upon proposal of an amendment to be ratified by conventions, Ohio law
requires the governor to call an election to be held for the purpose of electing delegates.
A total of 52 delegates, elected statewide, constitute Ohio’s ratifying convention.
Candidates for delegate must be nominated by petition signed by at least 5,000 voters.
Candidates may list a position on ratification of the proposed amendment (for, against, or
unpledged) but may not indicate a political party designation.
A majority vote
of all delegates elected is required for the convention to finally ratify or
reject a proposed amendment.
The Ohio provisions appear to have been first enacted in 1953.
• Vermont.
106
Vermont statutes require the governor to call a convention for the purpose
of ratification within 60 days of the date Congress transmits a proposed amendment, if
ratification requires a convention. The governor is also required to call an election at
which 14 delegates to the convention will be chosen.
Candidates for delegate are required to be chosen by Vermont’s governor, lieutenant
governor, and speaker of the House. Fourteen candidates must be chosen based on their
position “in favor” of ratifying the proposed amendment, and 14 candidates must be
chosen based on their position “against” ratifying the amendment. One candidate
representing each position must be chosen from each county in the state. At the election
of delegates, a voter is permitted to vote for a full slate of candidates, either in favor of or
against ratification, or the voter may vote for up to 14 individual candidates.
104
See N.M. Stat. § 1-18-1 et seq. (2015).
105
See Ohio Rev. Code § 3523.01 et seq. (2015).
106
See Vt. Stat. § 1811 et seq. (2015).
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Minnesota Practice. In 1933, the Minnesota Legislature enacted laws related to the formation
and operation of the state’s ratifying convention on the proposed 21st Amendment.
107
The state ratification convention process approved by the legislature required a convention of 21
at-large delegates. Delegates were chosen by the voters at a special election.
To appear on the ballot as a delegate nominee, potential delegates were required to be nominated
by a petition signed by at least 100 voters. Candidates for delegate were grouped into two
categories: those who supported ratification, and those who did not support ratification. The
names of the 21 delegate nominees within each group who received the most petition signatures
were designated to appear on the ballot.
The special election ballot listed the delegate nominees according to their group: those “for
repeal” (in favor of amendment ratification) and “against repeal” (not in favor of amendment
ratification). Except for the position of each group of nominees on the amendment proposal, no
other partisan affiliation was listed on the ballot. Voters were not permitted to cast votes for
individual nominees, but instead cast one vote: either for the group of nominees in favor of
repeal of prohibition, or for the group of nominees against repeal of prohibition.
The Minnesota ratification convention process does not appear to have resulted in any reported
litigation, and Minnesota has not enacted any general statutes on the operation of state ratifying
conventions.
107
See Minn. Laws 1933, ch. 214.
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Part 3: Article V Convention Process
A federal constitutional convention has not been held in the United States since the original
convention of 1787 was convened to establish a constitution. However, Article V provides for a
convention upon application to Congress by two-thirds of state legislatures for the purpose of
proposing constitutional amendments.
There are many unresolved questions surrounding an Article V convention: how it would be
convened, its authority, and how it would operate, among other issues. Academics, advocates,
and other interested groups have written extensively about the possibilities and risks of a
convention, and have speculated on various theories surrounding convention operations and
procedure, how Congress should tabulate state applications, and various other related issues.
This part does not analyze those theories, but instead describes what is known about a potential
convention process based on authority derived from case law and federal and state laws, rules,
and past legislative practices. Particular attention is paid to the role and experience of state
legislatures. While not intended to resolve issues that remain unknown and unresolved, possible
policy questions that legislators may wish to consider related to conventions are suggested.
A comprehensive review of all state applications for an Article V convention is outside the scope
of this publication. However, a number of private advocacy organizations have made efforts to
bring attention to the number of applications submitted to Congress. At least one of these
organizations, the “Friends of the Article V Convention,” maintains a website that purports to list
each application submitted to Congress, organized by topic.
108
This part is divided into the following sections:
(1) State Procedures in Article V Convention Process
(2) Federal Procedures
in Article V Convention Process
(3) State Perspectives on Organizing a Convention
State Procedures in Article V Convention Process
Because an Article V convention has never been convened on the application of state
legislatures, there is little precedent to suggest the form or content required for an application to
be accepted by Congress.
Some state constitutional provisions and legislative rules do provide explicit procedures for
convention applications similar to rules applicable to constitutional amendment ratifications. A
list of these rules is provided in Appendix 1.
108
See Friends of the Article V Convention, www.foavc.org.
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There are no clear requirements establishing the required content or process
for an Article V convention application.
Content. Some states have applied for an Article V convention in general terms, citing only the
legislature’s authority without providing an indication of the legislature’s desired amendments.
Other state applications provide much more detail.
Examples of additional detail contained in prior applications include:
• a request for a convention limited to a specific stated purpose. In some cases, these
applications have provided the exact text of the constitutional amendment the applying
legislature would like the convention to propose
109
• assurances to Congress that the applying state will seek to restrain its delegates to only
the subject matter described in the application
110
• a request for Congress to adopt specific procedures for selection of delegates to a
convention
111
• an effective duration of the application (often an application is specified as “continuing”
in its effectiveness until a sufficient number of states have applied for a convention, or
until Congress has proposed an amendment on its own)
112
• a listing of other states known to have applied for a convention on the same topic
113
• direction that the resolution be delivered to specific individuals. While there appears to
be no specific requirement beyond an application “to Congress,” state applications have
been specifically addressed to a variety of individuals—including the President and Vice
President of the United States, the Clerk of the United States House of Representatives
and the Secretary of the Senate, the Speaker of the House and President of the Senate, the
houses of each state legislature nationwide, and members of the applying state’s
congressional delegation. Political and other considerations beyond the legal
requirements for submission may also help inform a list of intended recipients.
Signature of Governor. In 1977, the Massachusetts Senate requested an opinion of the state’s
supreme judicial court, related to a resolution before the legislature applying for a convention to
consider an amendment to “protect the right to life of human beings.” Among the questions, the
109
See Minnesota’s legislative apportionment application, Minnesota Laws 1965, Resolution No. 5.
110
See Alabama’s balanced budget application, 2015, available at
http://clerk.house.gov/legislative/memorials.aspx.
111
See New Jersey’s “Citizens
United” application, 2015, available at
http://clerk.house.gov/legislative/memorials.aspx.
112
See Id.
113
See Utah’s balanced budget application, 2015, available at http://clerk.house.gov/legislative/memorials.aspx.
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Senate requested advice on the need for the governor to sign the resolution.
Relying on case law related to the Article V amendment ratification process, the justices
reasoned that the convention application was similar—in their view, Article V only requires an
application by the state’s legislature, and not implementation of the entire legislative process. It
advised the Senate that the signature of the governor was not necessary.
114
Minnesota Practice. Since statehood, the Minnesota Legislature has submitted three
applications to Congress for Article V convention:
• Direct Election of Senators. In 1901, a joint resolution requested a convention for
purpose of proposing an amendment to provide for election of U.S. senators by popular
vote.
• Polygamy. In 1909, a joint resolution requested a convention for the purpose of
proposing an amendment that would prohibit polygamy.
• Legislative Apportionment. In 1965, a memorial resolution was adopted, applying for a
convention for the purpose of proposing an amendment that would allow state
legislatures to apportion one body on a basis other than population.
115
In 1999, the legislature adopted a joint rule exempting Article V convention applications from
presentment to the governor, if the application is styled as a joint resolution. No applications
have been made in the intervening years since adoption of the rule. Each of Minnesota’s three
applications were presented to, and approved by, Minnesota’s governor.
116
A legislature made of unconstitutionally apportioned districts may not apply
for a convention.
There appears to be only one case addressing the right of a legislature to apply for a convention,
where the legislature has been declared unconstitutionally malapportioned. The court rejected
the action of the malapportioned legislature.
Petuskey v. Rampton. In 1965, the legislature then-sitting in Utah adopted a resolution
applying for a convention, seeking proposal of an amendment that would permit state
legislatures to apportion one body on a basis other than population. However, the
makeup of Utah’s legislative districts had been declared unconstitutional a year earlier, in
1964.
114
Opinion of the Justices to the Senate, 366 N.E.2d 1226, 1228 (Mass. 1977).
115
For more detail on these applications, see United States Constitutional Amendments: Minnesota’s Legislative
History, House Research Department (2016).
116
See 88th Legislature, Minnesota’s Joint Rule of the House and Senate 2.07 (2013).
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 41
The federal district court judge hearing the case expressed frustration that the legislature
had acted in an attempt to retroactively validate the existing districts by constitutional
amendment, rather than apportion them differently. After addressing a number of
procedural issues related to the case, the judge rejected what he viewed as an attempt by
the legislature to “suspend” operation of the equal protection clause of the Constitution:
During the time the procedure for amending the Constitution is being pursued, the
provision sought to be amended … remains in effect until the amending process is
completed. It shocks one to suppose that the operation of the bill of rights would
be suspended during a time an amendment to alter or repeal it was being
considered.
117
Extending the U.S. Supreme Court’s prior interpretation of the term “legislatures” in
Article V, the judge held that the term means “state legislatures constituted in compliance
with applicable federal constitutional requirements.”
118
Because the legislative districts
of Utah had not met these requirements at the time the resolution was adopted, the court
declared the convention application of the 1965 Legislature to be invalid.
Several state attorneys general have issued advisory opinions discussing
whether a legislature may rescind a convention application.
Like many other issues related to Article V convention applications, there is no clear guidance on
whether a state is permitted to rescind its application for a convention. However, a number of
state attorneys general have issued opinions on the topic.
Attorneys General in South Carolina, Iowa, Florida, Maryland, Nevada, and Louisiana have
all issued opinion advising that a rescission of a convention application is generally
permissible.
119
Federal Procedures in Article V Convention Process
Congress has historically appeared to have no formal mechanism for organizing, tracking, or
tabulating Article V convention applications received from state legislatures. However, many
applications are officially published in the Congressional Record.
2015 House Rule. In 2015, the U.S. House of Representatives adopted a procedural rule
designed to provide better transparency for select convention applications. The rule provides
authority for the chair of the House Committee on the Judiciary to make memorials presented to
117
Petuskey v. Rampton, 307 F.Supp. 235, 251 (D.Utah, 1969) (rev’d on other grounds, Petuskey v. Ramtpon,
431 F.2d 378 (10th Cir. 1970)).
118
Id. at 257.
119
See 1989 S.C. Op. Atty. Gen. 98 (No. 89-35); Op. Atty. Gen. Iowa (Feb. 28, 1984); Op. Atty. Gen. Fla. (Apr.
22, 1985); Op. Atty. Gen. Md. (No. 83-006, Jan. 31, 1983); Op. Atty. Gen. Nev. (Feb. 13, 1987); Op. Atty. Gen. La.
No. 86-326 (June 6, 1986).
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 42
Congress that purport to apply for an Article V convention more readily available to the
public.
120
The rule requires the Clerk of the House to provide access to publicly available memorials
electronically. As of April 2016, more than 20 applications have been posted on the Office of
the Clerk’s website: http://clerk.house.gov/legislative/memorials.aspx.
Additional Analysis of Federal Issues. Comprehensive analysis of Article V convention
history and current issues for Congress is provided in the following reports of the nonpartisan
Congressional Research Service:
• Thomas H. Neale, “The Article V Convention for Proposing Constitutional Amendments:
Historical Perspectives of Congress,” Congressional Research Service, October 22, 2012
• Thomas H. Neale, “The Article V Convention to Propose Constitutional Amendments:
Contemporary Issues for Congress,” Congressional Research Service, April 11, 2014
121
Additionally, the following Opinions of the Office of Legal Counsel, at the U.S. Department of
Justice, provide comprehensive analysis of issues that may arise in the convention process:
• Memorandum Opinion for the Attorney General, Office of Legal Counsel, U.S.
Department of Justice (3 U.S. Op. Off. Legal Counsel 16, January 16, 1979) (addressing
general issues related to the convening of a convention, and processing of state
applications)
• Mem
orandum Opinion for the Attorney General, Office of Legal Counsel, U.S.
Department of Justice (3 U.S. Op. Off. Legal Counsel 390, October 10, 1970) (addressing
the limitations of Congress in directing the conduct of a convention, including whether a
convention may be limited to a specific purpose)
While these reports and opinions are written from the federal perspective, state legislators may
also find the issues and questions discussed, and the historical perspective on the role of
conventions in Article V, valuable in understanding what is known about the Article V
convention process and in considering whether a state application for a convention is appropriate
in a particular circumstance.
120
H.R. 5, 114th Congress (2015).
121
While the Congressional Research Service only distributes its reports to members of Congress and
congressional staff, many reports—including those cited here—are posted online by private organizations and can
be found via a basic internet term search.
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State Perspectives on Organizing a Convention
This section provides some basic questions that legislators may wish to consider when deciding
whether to pursue an application for an Article V convention, or in the event Congress acts to
convene a convention in a manner that requires a state legislative response.
Can the process of organizing an Article V convention be informed by the history of state
constitutional conventions?
The experience of states in convening state constitutional conventions may be instructive in
thinking about how a federal convention might be organized.
Many state constitutions provide detail on the process for convening a state constitutional
convention. The level of detail included ranges from very little to a great deal.
122
The
experience of states and state legislatures in implementing their convention procedures provide a
useful model to consider how conventions typically operate.
What are the procedural rules of the convention? Are delegates permitted to propose or
discuss any potential amendment, or is discussion limited to a single topic?
One of the most frequently raised unknown issues related to an Article V convention is whether
the scope of the convention can be limited to a single topic (or set of topics). If restricted, is the
restriction imposed by Congress, or by procedural rules adopted by the convention itself?
Academics and advocates have raised concern about the potential for a “runaway” convention if
the substance of potential amendments cannot be limited. If discussion at the convention is
limited to specific topics, what is the position of the state legislature on the issue or amendment
to be discussed, and what weight does the legislature’s position carry with the states’ delegates to
the convention?
How many delegates will represent each state, and how are they selected? What are the
qualifications for being selected as a delegate, and what are the powers of an individual
delegate?
Delegates to the constitutional convention of 1787 were appointed by the legislatures of each
individual state. States were not restricted in the number of delegates at the convention, but each
state was allowed only one collective vote at the convention (delegates did not vote
individually).
An alternative method of selecting delegates could be to apportion a set number of delegates
among the states, based on population (or some other proportional metric) and permit each
delegate an individual vote at the convention. This model is consistent with the method of
122
For relatively simple provisions, see Wis. Const., art. XII, and Minn. Const., art. IX. For more complex
examples, see NY Const., art. XIX; Mo. Const., art. XII, and Mont. Const., art. XIV.
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 44
voting used by the Electoral College, and is also consistent with the method many states use in
organizing state constitutional conventions.
Under most current state constitutional convention models, delegates to state conventions must
be qualified voters of the state and are elected by the people; in many states, the number of
delegates to a convention is set in relation to the number of members of one body of the state
legislature.
If each state is permitted autonomy to select delegates in its own way, what will the
selection process look like?
Does the selection process result in delegates who adequately reflect all geographic regions of
the state? Are other regional interests reflected (urban v. rural, majority and minority
communities, economic regions, and other communities of interest)? If delegates are to be
elected, should the ballot indicate a candidate’s party affiliation? If the convention is limited to a
single issue, should the ballot indicate a candidate’s position on the issue to be discussed?
Many state constitutions provide for election of delegates to a state convention based on
legislative district; a similar model could be applied to election of delegates to a national
convention.
Once delegates are selected, what authority (if any) remains with the state to oversee the action
of the state’s delegates? If the state submitted an application for a specific amendment, what
obligations do the state’s delegates have to support a proposed amendment on that topic once the
convention begins?
Many states have enacted laws to ensure the votes of electors selected to the Electoral College
are consistent with the outcome of the statewide vote for president. What authority, if any,
would a state have to enact similar requirements to be applied to the vote of state delegates to an
Article V convention?
What is the relationship between delegates and the state legislature?
Are state legislators (or other state elected officials) permitted to be seated as delegates?
Determining the answers to these questions may depend on the details contained in the act of
Congress to call the convention.
State constitutional requirements may also apply—for example, provisions that prohibit elected
officials from serving in dual offices may impact whether a legislator or other official may be
seated as a delegate, even if doing so is permitted by Congress. As described earlier in this
publication, at least one state (New Mexico) provides by law that its state ratifying convention is
made up of its members of the legislature. It is unclear whether a similar principle could be
implemented for a federal convention.
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 45
Are delegates subject to any state economic interest disclosure, ethics, or gift ban laws? If
delegates are to be elected within states, what is their relationship to federal and state
campaign finance law?
If a state determines that ethics and integrity laws should apply, does the state legislature have
the authority to extend laws that apply to state elected officials to convention delegates, or are
delegates subject to laws that apply to federal officials?
What role does the state’s governor play in the convention process?
Case law interpreting the requirements of Article V have consistently restricted authority to act
under Article V to state legislatures only—exempting these procedures from a state’s full
lawmaking process. To the extent that organization of a convention requires states to adopt
procedures for selecting delegates, do these procedures require participation of the governor?
May the governor veto an act of a state legislature adopting a process for electing delegates to an
Article V convention?
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 46
Part 4: Procedural Issues in Litigation Involving
Constitutional Amendments
The unique nature of the Article V convention amendment process—and the high stakes’ nature
of the amendments themselves—results in a climate where litigation regarding the amendment
process is common. And unlike a legislature’s deliberation and ultimate enactment of laws and
other state policy, ratifying a federal constitutional amendment or applying for a convention is a
process that exists and remains entirely within the legislative branch.
This means that legal challenges are likely to name one or more state legislative bodies in the
litigation. It also means that a person seeking to challenge an aspect of the amendment process
might be a legislator. In some cases, constitutional amendment law has developed as the result
of individual legislators suing their own legislative body and legislative leadership.
For a legal challenge to proceed, the case must be “justiciable.”
This section describes the basic procedural tests that courts use to determine whether a lawsuit is
appropriate, and how those tests have been applied in the context of constitutional amendment
litigation. Courts apply these initial tests to a case before reaching the actual substance of a
challenger’s claims.
If the court is satisfied that each of the tests has been met, the case is considered “justiciable” and
the lawsuit is allowed to proceed. If one of the tests fails, the lawsuit is likely to end before
reaching the substance of the claims.
Each of the principles is based on law that is more complex and far-reaching than a constitutional
amendment proceeding. The brief summaries provided are intended to highlight how the
principles have applied in the context of constitutional amendment cases, and are not intended to
be a comprehensive analysis of a principle’s application or development in other contexts.
Standing. In order for a lawsuit to proceed, the person filing the suit must demonstrate
sufficient “standing” to bring the suit. The doctrine of standing requires that the plaintiff have a
sufficient particular interest in the controversy, demonstrated by actual or threatened harm
caused by the defendant, in order for the case to proceed.
• Standing for State Legislators. State legislators have successfully demonstrated a
sufficient interest in controversies surrounding the procedure used to ratify (or reject) a
proposed constitutional amendment in the legislative process. State legislators have
originated complaints and have been found to have standing in the following contexts:
In Coleman v. Miller, a suit brought by a group of 20 Kansas senators
challenging their legislature’s process to ratify the proposed Child Labor
Amendment was allowed to proceed, because of their “plain, direct and adequate
House Research Department April 2016
U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 47
interest in maintaining the effectiveness of the senator’s votes.”
123
In particular,
the Court noted the voting power of the group of senators would have been
sufficient to defeat the ratification, if their legal claims succeeded.
124
In Idaho v. Freeman, a suit brought by the State of Idaho and a group of
legislators representing the legislatures of Idaho, Arizona, and Washington, was
allowed to proceed against the administrator of the General Services
Administration. The suit sought to require the GSA Administrator to recognize
the Idaho legislature’s act to rescind its ratification of the proposed Equal Rights
Amendment.
125
In Dyer v. Blair, a suit brought by a group of Illinois legislators against the
Illinois Speaker of the House and Senate President, was allowed to proceed
challenging the legislature’s process to ratify the proposed Equal Rights
Amendment.
126
Standing was included in discussion of other procedural issues in
the context of this case.
• Standing for Private Citizens. In cases where private citizens have challenged the
amendment ratification process, the U.S. Supreme Court has reached the opposite view,
where the challenge is based on a general objection to the process. According to the
Court, a private citizen “has only the right, possessed by every citizen, to require that the
government be administered according to law and that public moneys not be
wasted…this general right does not entitle a private citizen to institute in the federal
courts a suit to secure by indirection a determination whether a statute, if passed, or a
constitutional amendment, about to be adopted, will be valid.”
127
However, if a claim is framed correctly, a private citizen may be able to demonstrate
proper standing for a case to proceed to the substance of the claims. Cases have moved
forward without apparent objections to standing in the following circumstances:
In Leser v. Garnett, a suit brought by male voters against the local board
authorized to register voters in Maryland. The suit alleged that the board’s
registration of female voters was invalid because the 19th amendment (women’s
suffrage) was not properly adopted.
128
123
Coleman v. Miller, 307 U.S. 433, 438 (1933).
124
Id. at 447.
125
Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho, 1981). The district court in this case undertook an extensive
review of issues of justiciability. The U.S. Supreme Court agreed to review the district court decision, but later
dismissed the case as moot.
126
Dyer v. Blair, 39
0 F.Supp. 12
91 (N.D. Ill.
1975).
127
Fairchild v. Hughes, 258 U.S. 126 (1922).
128
Leser v. Garnett, 258 U.S. 130 (1922).
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In Chandler v. Wise, a suit brought by citizens, taxpayers, and voters of
Kentucky, against the state’s governor and General Assembly, to prevent
certification to the U.S. Secretary of State that the legislature had ratified the
proposed Child Labor Amendment. The suit alleged that the action was improper,
because the legislature had previously rejected the amendment and a reasonable
time had passed for ratification.
129
In Dillon v. Gloss, a suit brought by an individual convicted and taken into
custody for violation of laws adopted following ratification of the 18th
amendment (prohibition). The suit alleged that Congress did not properly propose
the amendment to the states, and alternatively, if the proposal and ratification was
proper, it had not gone into effect at the time of the individual’s arrest.
130
In Hawke v. Smith, a suit brought by a private citizen against the Ohio’s secretary
of state, to prevent the secretary of state from expending public money on a
referendum on the question of a constitutional amendment ratification.
131
Ripeness. In addition to proper “standing” of a plaintiff, a lawsuit must be “ripe” for action.
This means that it must present a concrete legal issue to be decided; a case may not be based on
an abstract theory or hypothetical situation that might arise at some point in the future, and it
may not be based on a previous action for which a remedy is no longer available.
In the con
text of constitutional amendments, courts have consistently held (explicitly or
implicitly) that issues of constitutional amendment procedure and substance are ripe for review
and determination while the ratification process is ongoing.
Cases have been rejected when the ratification process has proceeded far enough from the
alleged violation that a remedy is no longer available:
• Idaho v. Freeman: A suit related to the actions of the Idaho Legislature on the proposed
Equal Rights Amendment. The Supreme Court initially agreed to hear the claims, but
later rejected it once the ratification period for the amendment had expired. At that point,
the case left no legal issue that could be provided an adequate remedy—because the
amendment’s effectiveness did not turn on whether Idaho had ratified it or not, the issue
was no longer ripe for review.
132
• Chandler v. Wise: A suit brought by citizens, taxpayers, and voters of Kentucky, against
the state’s governor and General Assembly, to prevent certification to the U.S. Secretary
129
Chandler v. Wise, 307 U.S.
474
(1939).
The Court seems to have resolved the standing issues in this case
differently than it did in Fairchild v. Hughes, although the opinion did not directly discuss the reason for the
distinction or whether the Fairchild analysis remains good law.
130
Dillo
n v.
Gloss
, 256 U.S. 368 (1921).
131
Hawke v. Smith, 253 U.S. 221 (1920).
132
National Organization for Women v. Idaho, 459 U.S. 809 (1982).
House Research Department April 2016
U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 49
of State that the legislature had ratified the proposed Child Labor Amendment. The
Supreme Court ordered the claim dismissed because the governor had already forwarded
the certification of ratification to the federal government. At that point, in the Court’s
opinion, the issue was moot—there was no longer a controversy to be resolved.
133
Political Question. Even if a court determines that a proper person has filed a suit, and the
claims being made are sufficiently ripe for review, the case may still be rejected if it presents a
“political question.”
The political question doctrine is a test based on the principle of separation of powers. In basic
terms, courts tend to reject issues that interfere with the balance of power among the branches of
government, or that require a subjective policy or political judgment that the judicial branch does
not have the expertise to provide.
The political question test presents the highest procedural barrier to a lawsuit involving
constitutional amendment process, and its exact application is unsettled. Over time, the test has
evolved through a wide-ranging set of decisions by the U.S. Supreme Court. Very few of the
decisions address constitutional amendment procedures specifically.
A full review of the political question doctrine is outside the scope of this publication. This
section describes the case law on the political question doctrine, as applied in cases involving
constitutional amendment procedure.
Coleman v. Miller. The most frequently cited case on the issue of political questions in
constitutional amendment law is Coleman v. Miller. As described previously, in
Coleman, a group of Kansas legislators challenged their legislature’s process to ratify the
proposed Child Labor Amendment.
The Court held that the group of legislators had proper standing to bring the suit.
However, the Court’s analysis on whether their legal claims were appropriate for review
was much more complex. On the political question doctrine, the case generally stands for
the principle that many—perhaps most—matters of constitutional amendment law are
political questions that must be resolved by Congress, and not by the courts.
However, the full scope of this holding is unclear. While a majority of the justices agreed
that at least some judicial review of constitutional amendment procedure was barred by
the political question doctrine, a majority of justices could not agree on exactly which
particular procedures should be barred from review: a minority suggested there was no
procedure in the constitutional amendment process that a court should ever review, while
others were open to reviewing some procedures, such as the ability of Kansas’s lieutenant
governor to cast a tiebreaking vote on ratification. Discussion of the various dynamics of
the court’s decision is the subject of many scholarly articles on the case.
133
Chandler v. Wise, 307 U.S. 474 (1939).
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 50
In general, the Coleman case suggests that courts are likely to not review procedural
issues in the amendment process, if making a decision requires an analysis of the
prevailing national policy or political climate. For example, in Coleman, the Court
refused to rule definitively on what constitutes a “reasonable time” for ratification of an
amendment, finding that doing so would require:
an appraisal of a great variety of relevant conditions, political, social, and
economic, which can hardly be said to be within the appropriate range of evidence
receivable in a court of justice…they can be decided by Congress with the full
knowledge and appreciation ascribed to the national legislature of the political,
social, and economic conditions which have prevailed since the submission of the
amendment.
134
Dyer v. Blair. In 1975, a district court in Illinois heard a dispute involving the Illinois
Legislature’s process for ratifying the proposed Equal Rights Amendment. At issue were
certain procedural rules of the legislative process—such as a supermajority vote
requirement—that were alleged to violate Article V.
The district court reviewed the political question precedent established by Coleman and
other subsequent cases, and determined that judicial review of the claims presented in this
case were permitted. In the opinion of the court:
The word ‘
ratification’ as used in Article V of the federal constitution must be
interpreted with the kind of consistency that is characteristic of judicial, as
opposed to political, decision making. We conclude … that meaning must be
constant for each question that Congress may propose.
135
This analysis distinguished the Coleman precedent—which required Congress to gauge
the evolving political, social, and economic climates—with a need for a consistent
standard among all states and all amendments about what “ratification” means as a matter
of law. As a result, the political question doctrine did not present a barrier to judicial
review.
Idaho v. Freeman. In 1981, a district court in Idaho heard a dispute involving the
federal government’s recognition that the Idaho Legislature had rescinded its ratification
of the proposed Equal Rights Amendment.
Despite the Coleman precedent, and after substantial discussion, the district court
determined that the political question doctrine did not prevent it from affirming the right
134
Coleman v. Miller, 307 U.S. 433, 454-55 (1939). The political question doctrine has evolved substantially
since the Coleman decision was issued. As a result, the principles in the case, if litigated today, could come out
differently. For example, the Supreme Court cited the Coleman precedent favorably, but may have narrowed its
reach somewhat, in another major case addressing the scope of the political question doctrine, Baker v. Carr, as
applied to a dispute over redistricting. See Baker v. Carr, 369 U.S. 186, 214 (1962). However, the basic holding
of the Coleman case has never been explicitly overruled or questioned on a fundamental level.
135
Dyer v. Blair, 390 F.Supp. 1291, 1303 (D. Ill. 1975).
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 51
of a state to rescind its ratification, or from reviewing whether Congress followed the
proper procedure in enacting an extension of the ratification period.
136
The Supreme Court agreed to hear an appeal of these issues, but later ordered the district
court order vacated and the case dismissed as moot.
137
As a result, there is no indication
how the Supreme Court would have reacted to the lower court’s analysis.
136
Idaho v. Freeman, 529 F.Supp. 1107, 1150 (D.Idaho
1981)
137
Idaho v. Freeman, 459 U.S. 809 (1982).
House Research Department April 2016
U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 52
Appendix 1: Explicit State Constitutional Provisions and Legislative Rules Related to U.S.
Constitutional Amendment Procedure
138
State Vote Required Style of Ratification Other Procedural Requirements Authority
Alabama
Three-fifths of elected
membership
N/A N/A Ala. Const. § 284;
House Rule 15
Alaska
Majority of elected
membership
Joint Resolution N/A Uniform Rules, No. 49
Arkansas
N/A Joint Resolution Committee referrals required House Rule 50; Senate
Rule 14.12 (a); Senate
Rule 14.15 (c)
California
N/A Joint Resolution Treated as bill Joint Rule 4; Joint Rule 6;
Assembly Rule 46(b)
Colorado
Two-thirds of elected
membership (House)
Majority of elected
membership (Senate)
Concurrent Resolution N/A House Rule 26(a)(1);
Senate Rule 17(f)(4)
Florida
N/A N/A Intervening election required between proposal by
Congress and ratification by legislature
139
Fla. Const. art. 10, § 1
138
Cited provisions are current as of January 2016, based on review of state constitutions and rules as posted on applicable legislative websites. Generally applicable
provisions that do not explicitly reference U.S. constitutional amendment procedures are not included in this chart. Portions of the data were originally collected in a survey
conducted by the National Conference of State Legislatures in March 2007. States that are not included in this chart do not appear to have enacted any relevant rules or
constitutional provisions.
139
This requirement was declared unconstitutional by a federal district court in 1973. See Trombetta v. State of Florida, 353 F.Supp. 575 (M.D. Fla. 1973).
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 53
State Vote Required Style of Ratification Other Procedural Requirements Authority
Illinois
Three-fifths of elected
membership
N/A Intervening election required between proposal by
Congress and ratification by legislature, if consistent with
federal requirements
140
Illinois statute appears to provide for a vote on ratification
by constitutional majority
Requirements also apply to applications for a
constitutional amendment convention
Ill. Const. art. 14, § 4;
Senate Rule 6-3; House
Rule 47; 5 ILCS 5/1
Kansas
Two-thirds of elected
membership
Concurrent Resolution Vote must be printed in journal; other miscellaneous
procedural rules
Requirements also apply to applications for a
constitutional amendment convention
Kan. Const. art. 2, §§ 10;
13; Senate Rule 55;
House Rules 901, 2707,
2901, 3907
Kentucky
N/A N/A Mandatory referral to specified committees: Elections,
Constitutional Amendments, and Intergovernmental
Affairs (House); State and Local Government (Senate)
Senate Rule 40, No. 10;
House Rule 40, No. 6
Maine
Majority of members
present (ratification)
Two-thirds of
members present
(constitutional
convention
application)
N/A Approval of Legislative Council is not required prior to
introduction
Joint Rule 215
Maryland
N/A Joint Resolution N/A House Rule 25; Senate
Rule 25
140
This requirement was declared unconstitutional by a federal district court in 1975. See Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975).
House Research Department April 2016
U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 54
State Vote Required Style of Ratification Other Procedural Requirements Authority
Michigan
Majority of elected
membership
Joint Resolution Roll call vote and journal printing required Senate Rule 3.503; Joint
Rule 18
Minnesota
N/A N/A Joint resolutions ratifying amendment or applying for a
constitutional convention are exempt from presentment to
governor; Revisor of Statutes deposits with secretary of
state
Joint Rule 2.07
Missouri
Majority of elected
membership
Concurrent Resolution Treated as bill
Amendments to text of proposed amendment prohibited
House Rule 59
Montana
N/A Joint Resolution Bills ratifying amendments are exempt from presentment
to governor
Mont. Const. art. 6, § 10;
Joint Rule 40-60(i); Joint
Rule 40-210(b)
Nebraska
N/A N/A Treated as bill
Includes resolutions memorializing Congress with regard
to U.S. constitutional amendments
Rule 4, § 2
Nevada
Majority of elected
membership
Joint Resolution N/A Nev. Const. art. 4, § 18;
Joint Rule 7
New Hampshire
N/A N/A Senate Rules limit the types of resolutions that may be
introduced; ratification of proposed constitutional
amendments by resolution is permitted
Senate Rule 3-26
New Jersey
Majority of elected
membership
Concurrent Resolution A public hearing on the proposed amendment is required Assembly Rule 24:1;
Senate Rule 17:6; Joint
Rule 8B
New Mexico
N/A N/A Treated as bill (Senate) Senate Rule 11-22-2
House Research Department April 2016
U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 55
State Vote Required Style of Ratification Other Procedural Requirements Authority
North Carolina
N/A N/A Electronic voting system must be used on second and third
reading (House)
Committee deadlines do not apply (House)
House Rules 20, 31.1
North Dakota
Majority of elected
membership
Concurrent Resolution Senate President (Lt. Governor) may vote to break tie; two
readings on different days required; other miscellaneous
procedural rules
House Rules 325, 339;
Senate Rules 323, 325,
339
Ohio
N/A Joint Resolution Treated as bill House Rule 77, 78
Oregon
Majority of elected
membership
N/A N/A NCSL Survey, 2007
Tennessee
N/A N/A Intervening election required between proposal by
Congress and ratification by legislature
141
Tenn. Const. art. 2, § 32
Texas
Majority of members
present (House)
Joint Resolution Treated as bill, except adoption on second reading. If vote
fails to receive majority vote, it may not be considered
again except on a motion to reconsider (House)
Record vote in journal (Senate)
House Rule 9, § 2; Senate
Rule 6.15 (a)(1)
Vermont
Majority in each
chamber
Joint Resolution N/A NCSL Survey, 2007
Washington
Simple majority N/A N/A NCSL Survey, 2007
Wisconsin
Majority of a quorum Joint Resolution Three readings in each house required; adoption on roll
call vote entered in journal
Amendments to text of proposed amendment prohibited
Joint Rule 12, Joint Rule
58
141
This requirement was declared unconstitutional by the Tennessee Supreme Court in 1972. See Walker v. Dunn, 498 S.W.2d. 102 (Tenn. 1972).
House Research Department April 2016
U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 56
Appendix 2: State Legislative Actions to Rescind Ratification, Ratify Following a Rejection,
or Reject a Proposed Amendment
Except where otherwise noted, the data in this chart are based on state legislative records and records as reported in Constitution of the United
States of America: Analysis and Interpretation, Amendments to the Constitution of the United States of America.
142
States listed in italics reflect
legislative actions reported by secondary sources that appear reliable, but which have not been independently verified with the state’s official
legislative record.
“Rejection” includes acts of a legislature adopting a resolution to reject a proposed amendment, and resolutions to ratify a proposed amendment
that were voted down. The “Rejection” column does not include state legislatures that have implicitly rejected an amendment by not taking any
action on the proposal.
Amendment
Rescission
of prior ratification
Ratification
after prior rejection
Rejection
(no subsequent action)
12th
N/A Massachusetts Delaware
Connecticut
13th
N/A New Jersey
Delaware
Kentucky
Mississippi
N/A
14th
New Jersey
Ohio
Oregon
North Carolina
Louisiana
South Carolina
Georgia
Maryland
Virginia
Texas
Delaware
Kentucky
N/A
15th
New York Ohio
New Jersey
Delaware
Tennessee
Maryland
California
N/A
142
U.S. Government Printing Office (2014), available at: https://www.congress.gov/constitution-annotated/.
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U.S. Constitutional Amendment Process: Legal Principles for State Legislators Page 57
Amendment
Rescission
of prior ratification
Ratification
after prior rejection
Rejection
(no subsequent action)
Kentucky
16th
N/A Arkansas
New Hampshire
Connecticut
Rhode Island
Utah
17th
N/A N/A Utah
18th
N/A N/A Rhode Island
19th
N/A Virginia
Alabama
Georgia
Louisiana
South Carolina
Delaware
Maryland
Mississippi
N/A
21st
N/A N/A South Carolina
North Carolina
22nd
N/A N/A Oklahoma
Massachusetts
23rd
New Hampshire N/A Arkansas
24th
N/A N/A Mississippi
For more information about constitutional amendments, visit the legislature area of our website, www.house.mn/hrd/.
