Ratification

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Ratifying the U.S. Constitution

• Date: Dec. 7, 1787 ; Accept: 30 ; Reject: 0
• Date: Dec. 12, 1787 ; Accept: 43 ; Reject: 23
• Date: Dec. 18, 1787 ; Accept: 38 ; Reject: 0
• Date: Jan. 2, 1788 ; Accept: 26 ; Reject: 0
• Date: Jan. 9, 1788 ; Accept: 128 ; Reject: 40
• Date: Feb. 6, 1788 ; Accept: 187 ; Reject: 168
• Date: April 28, 1788 ; Accept: 63 ; Reject: 11
• Date: May 23, 1788 ; Accept: 149 ; Reject: 73
• Date: June 21, 1788 ; Accept: 57 ; Reject: 46
• Date: June 25, 1788 ; Accept: 89 ; Reject: 79
• Date: July 26, 1788 ; Accept: 30 ; Reject: 27
• Date: Nov. 21, 1789 ; Accept: 194 ; Reject: 77
• Date: May 29, 1790 ; Accept: 34 ; Reject: 32

In 1992, the nation apparently ratified a longquiescent 27th Amendment, to the surprise of just about everyone. Whether the new Amendment has any effect in the area of its subject matter, the effective date of congressional pay raises, the adoption of this provision has unsettled much of the supposed learning on the issue of the timeliness of pendency of constitutional amendments.

Ratification and the U.S. Constitution

It has been accepted that Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Beginning with the Eighteenth Amendment, save for the Nineteenth, Congress has included language in all proposals stating that the amendment should be inoperative unless ratified within seven years.26 All the earlier proposals had been silent on the question, and two amendments proposed in 1789, one submitted in 1810 and another in 1861, and most recently one in 1924 had gone to the states and had not been ratified. In Coleman v. Miller,27 the Court refused to pass upon the question whether the proposed child labor amendment, the one submitted to the states in 1924, was open to ratification thirteen years later. This it held to be a political question that Congress would have to resolve in the event three-fourths of the states ever gave their assent to the proposal.

Ratification: Developments

In Dillon v. Gloss,28 the Court upheld Congress’s power to prescribe time limitations for state ratifications and intimated that proposals that were clearly out of date were no longer open for ratification. Finding nothing express in Article V relating to time constraints, the Court nevertheless found evidence that strongly suggests that proposed amendments are not open to ratification for all time or by states acting at widely separate times.29

More about Ratification

Three related considerations were put forward. “First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.” 30

Other Aspects

Continuing, the Court observed that this conclusion was the far better one, because the consequence of the opposite view was that the four amendments proposed long before, including the two sent out to the states in 1789 “are still pending and in a situation where their ratification in some of the States many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more States to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable.” 31

What seemed “untenable” to a unanimous Court in 1921 proved quite acceptable to both executive and congressional branches in 1992. After a campaign calling for the resurrection of the 1789 proposal, which was originally transmitted to the states as one of the twelve original amendments, enough additional states ratified to make up a three-fourths majority, and the responsible executive official proclaimed the amendment as ratified as both Houses of Congress concurred in resolutions.32

That there existed a “reasonable” time limit for ratification was strongly controverted.33 The Office of Legal Counsel of the Department of Justice prepared for the White House counsel an elaborate memorandum that disputed all aspects of the Dillon opinion.34 First, Dillon’s discussion of contemporaneity was discounted as dictum.35 Second, the three “considerations” relied on in Dillon were deemed unpersuasive. Thus, the Court simply assumes that, because proposal and ratification are steps in a single process, the process must be short rather than lengthy; the argument that an amendment should reflect necessity says nothing about the length of time available, in that the more recent ratifying states obviously thought the pay amendment was necessary; and the fact that an amendment must reflect consensus does not so much as intimate contemporaneous consensus. 36 Third, the OLC memorandum argued that the proper mode of interpretation of Article V was to “provide a clear rule that is capable of mechanical application, without any need to inquire into the timeliness or substantive validity of the consensus achieved by means of the ratification process. Accordingly, any interpretation that would introduce confusion must be disfavored.” 37 The rule ought to be, echoing Professor Tribe, that an amendment is ratified when three-fourths of the states have approved it.38 The memorandum vigorously pursues a “plain-meaning” rule of constitutional construction. Article V says nothing about time limits, and elsewhere in the Constitution when the Framers wanted to include time limits they did so. The absence of any time language means there is no requirement of contemporaneity or of a “reasonable” period.39

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References

This text about Ratification is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes