Balkinization  

Thursday, May 31, 2018

Illinois Has Ratified the ERA

Gerard N. Magliocca

Today Illinois ratified the proposed Equal Rights Amendment to the Federal Constitution. This means that we are on the brink of a constitutional dilemma. If one more state ratifies the ERA, then there is a plausible argument that three-fourths of the states (38) have ratified. At that point, Congress will be asked to consider a joint resolution that would waive the ERA's ratification deadline (which expired in 1982) and declare the ERA part of the Constitution.

I am drafting an article about these issues that I hope will be ready by the end of June. I doubt that another state will ratify the ERA this year, so there is time for thoughtful consideration. The most likely candidate for the next vote is Virginia, which is the most liberal state that has not ratified. But an effort to do that there this year died in committee and will probably not be revived. Until next year.

Comments:

Well, there was a ratification deadline attached to the ERA.

I can't imagine these provisions are unconstitutional, given the consistent practice of the political branches over the past 100 years of using them.

The only question would be whether, if Congress decided to recognize the amendment's passage anyway, this would constitute some sort of political question or would be unreviewable under the enrolled bill rule. And I guess that is possible.
 

The more interesting scenario is if a party with standing goes to court to enforce ratification on the ground that Article V does not grant Congress the power to place a deadline on ratification.

The other is whether the Court would treat the EPA as a change to current equal protection law concerning gender.
 

Not sure what you are getting at with your second question, but no way is the Supreme Court going to hold that Article V bars a consistent, non-controversial process that has enormous pragmatic justifications and which Congress has used for a century.

That would be the emptiest of empty formalism.
 

There are four guaranteed votes to declare the ERA ratified, and at least a 50-50 chance Kennedy wants to make his mark on history before retiring. The rationale they use to justify doing this is pretty irrelevant, it won't have been the actual reason they did it, and they'll find an excuse to distinguish to defeat an amendment Congress doesn't want.

The ERA has already been mostly incorporated into the 14th amendment, including the bits (SSM) that the ERA's advocates denounced as a vile smear. The Court did that with far less excuse, so it's not as though they're ideologically hostile to forcing the ERA on an unwilling nation on sketchy grounds.

Now, if Trump gets a couple more nominees on the Court, especially if he can replace one or more of the liberals, this analysis could change. But for now I'd say it's a coin flip which way the Court would go. At best.
 

Query: Did the 19th A amend the 14th A?
 

One of the most depressing things about commentary regarding the legal system is this sort of extreme-nihilist/realist position that both those on the right and the left take, as if the Court doesn't care about doctrine whatsoever and results are absolutely controlled by the political preferences of the justices.

No, Brett, I don't think it's that simple. Especially given that the ERA basically tracks advances in equal protection doctrine that have already occurred, the Court is likely to take into account whether whatever rule they make could affect other amendments that might be kicking around. As well as the history of ratification restrictions.

In other words, they are going to do their job. Because, you know what? There's more to the operation of the Supreme Court than pure politics.
 

Dilan said "There's more to the operation of the Supreme Court than pure politics." Yes, unless the political dispute is particularly intense in which case there may be more but not much more.
 

I take the ratification process particulars -- the deadline in this case -- is a political question & especially with the Necessary & Proper Clause, the Congress has specific power to fill in certain gaps.

This issue has been going on back/forth over at GM's Concurring Opinion blog and I don't agree with his argument about certain aspects of the question. Nonetheless, bottom line, I think the issue here as to ratification will be up to Congress, including if one or more states try to pull out. For what little it's worth, I think it should use its power not to accept the final three states decades after the deadline passed. Set up a new deadline & see if the states will ratify.

I personally -- like the conservative character on West Wing -- think the Equal Protection Clause (and the EP component of the Fifth Amendment) covers women. I also don't want to single out one punishment as "cruel and unusual," one type of speech as protected or one religion or type of gun.

As to Shag's question, realistically, yes. Originally, most but not all thought the amendment covered civil but not voting rights (except for the lesser known sections) . In time, "liberty" and "equal protection" was understood to including voting rights. In that fashion, the 19A made it clear one specific thing was covered. Arguably, as certain voting rights cases held, it wasn't necessary.

But, like the original Bill of Rights underlining what some thought was so already, the 19A made it clear, including to the doubters.
 

"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."

Let me be clear that there might be some sort of thing that is not merely a political question (3/5 aren't enough) but the likely issue will be particulars that are or clarifying rules set forth by Congress such as such and such is needed to determine the date of ratification. Expanding the deadline at this date looks to me as a political question that is bad policy.
 

The general rule of procedural rules, is that they must always be set out before the procedure is carried out. Not altered after the fact to engineer a particular outcome.

It might be thought acceptable to set out a rule, going forward, that amendments don't have time limits. Or that ratifications can't be rescinded. (Though I think neither would be a good rule.)

But to alter these points after the amendment has already failed according to the rules in effect at the time? It's just too obviously a case of trying to game the rules to turn a defeat into a win.

If the ERA is currently popular, sending it out to the states again, and getting it ratified from scratch, should be no difficult thing. To admit that it IS a difficult thing, is to admit that this is just an effort to get it 'ratified' in the teeth of it actually being unpopular.
 

This comment has been removed by the author.
 

I oppose the expansion of the deadline now because there isn't any good reason that comes to mind to do so. OTOH, if there is a deadline and a natural disaster came or something, and Congress decided to expand it for a month or whatever, it would be different. If a deadline was in place 1860, maybe an expansion would be appropriate to bring in black voters if it ran out in 1867. There are various reasons other than "to turn a defeat into a win" alone that might be involved.

But, I think it is a political question. This "general rule" is a rule of good practice, but it is not inherent in all procedures. Thus, we have the Ex Post Facto Clause and the Due Process Clause etc. And, if Congress has certain rule that spells out how a vote on the floor should be carried out, changing the rules in midstream is probably correctly seen as wrong in most cases. But, they have the power to do so.

Let me repeat, on substance (moving past the rest), I AGREE with Brett that the amendment should not be accepted.
 

I don't have a strong view on this issue, but I don't agree with some of the arguments against ratification.

I'm not sure Congress has power under the N&P clause to set a time limit. That clause grants the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States..." Ratification of the amendment is not, however, a power granted to Congress nor is it a power vested in the Government of the United States.

I'm also not convinced that the fact that Congress has been setting deadlines for 100 years a meaningful fact in this case. For one thing, that begs the question of where Congress gets the power to set such a deadline. For another, long-standing practice generally only constitutes a precedent if the practice has been tested. I don't think that has happened, nor has there been any occasion for it to happen.
 

"Ratification of the amendment is not, however, a power granted to Congress nor is it a power vested in the Government of the United States."

Exactly a point of mine, in objecting to this: Congress can originate amendments, ratification is, intentionally, a state matter, with Article V setting out no Congressional role at all. All the discretion involved in ratification is meant to be exercised by the states. And several of them explicitly exercised it in the form of time limits and/or rescission.

To be sure, Congress, being bound by an amendment, must necessarily have an official opinion as to whether or not an amendment has been ratified. That's not an excuse to say Congress has a choice in the matter. States are not regarded as having a choice about whether to admit an amendment is ratified, and they're in the same position, or even superior, being the ratifying bodies.

It is reasonable to say that Congress can place a time limit on ratification, because Congress can put that time limit in the amendment itself, rendering it self-nulifying if purported to be ratified. In the case of the ERA, they thought they'd be tidy, and put the time limit language in the resolution, not the amendment's official language. But amendment and resolution were passed as one unit, in one vote. This matters, I think; Had they been separate votes, I would not regard the time limit as binding, but because they were voted on as a unit, they are the amendment, as a unit.

The supposed extension was not passed by the supermajority required of constitutional amendments, which I think denies it any claim to alter the amendment's terms.

You want an ERA? Start over from scratch.
 

The ratification of the 27th A seems to demonstrate that the doctrine of laches does not apply to the Constitution. This might suggest that it is unreasonable to say that Congress can place a time limit on the ratification of a proposed A. Article V could permit for a proposed Amendment that would specifically amend Article V for the imposition of time limits on ratification of proposed As. That has not yet been done under Article V.

I have a strong view that ERA should have been ratified to further assure equality, as the 14th A failed to provide the vote for women resulting in the 19th A. It is constitutionally cavalier to suggest that following the 19th A in more recent years the 14th A all along should have provided women the right to vote. Recall the Emancipation Proclamation by Lincoln was not protective enough, it being recognized that a constitutional A would be required to resolve the issue of slavery. Of course it should be recognized that despite the 13th, 14th and 15th As Jim Crow followed and continued long after Reconstruction until Brown v. Bd. of Educ. (Unanimous, 1954) when Jim Crow started a retreat until Trump came along. The 19th A addressed only voting for women. Evidence of various types of inequality for women followed the ratification of the 19th and continues today despite the post-19th A "constitutional revisionism" that the 14th A resulted in equality for women.

But as to the issue that Gerard is focusing on, like Mark I don't have a strong view. Let's see how the ladies do in the 2018 midterms.
 

هل تبحث عن شركة متخصصة فى خدمات التنظيف بالطائف بافضل المعدات والسوائل وثقة تمة فى العمل ودقة فى النتائج كل هذه المميزت توفرها شركة الخليج الشركة الافضل والامثل فى الخدمات المنزلية بالطائف وبما اننا الشركة الافضل والامثل بدون منافس سوف نسعى لتوفر افضل الخدمات باقل تكلفة وبقدر كبير من الاهتمام والدقة عزيزى اينما كنت فى اى منطقة ا وحى تابع لمدينة الطائف اتصل بنا وسوف نصلك فى الحال شركة الخليج للخدمات المنزلية شركة تنظيف منازل بالطائف
شركة تنظيف فلل بالطائف
شركة تنظيف خزانات بالطائف
شركة تسليك مجارى بالطائف
شركة رش مبيدات بالطائف
شركة مكافحة نمل ابيض بالطائف
شركة مكافحة حشرات بالطائف
شركة عزل اسطح بالطائف
شركة عزل خزانات بالطائف

 

"The ratification of the 27th A seems to demonstrate that the doctrine of laches does not apply to the Constitution. This might suggest that it is unreasonable to say that Congress can place a time limit on the ratification of a proposed A."

Laches really has nothing to do with situations where there's an explicit time limit, it has to do with implied time limits. I agree there are no implied time limits to constitutional amendments.

As I wrote, I believe Congress can place a time limit on an amendment's ratification, if it's in the amendment itself, because an amendment with such a limit incorporated into it effectively self-destructs if ratified; You're ratifying the time limit along with the rest of the amendment, after all, so the ratified amendment itself says that it's not ratified.

My point on the ERA is that, while they didn't place the time limit in the language that would be added to the Constitution, the amendment and the resolution that stated the time limit were treated as a unit, subject to one vote. So, for Article V purposes, the resolution is part of the amendment.

But I'd be more positive about this if they just included the time limit in the amendment's text, as they did with, for instance, the 18th amendment. Reasonable people can differ when the time limit is just in the resolution.

Were Congress to originate an amendment with one vote, and then with a separate vote assert that the amendment was subject to a time limit, THIS would be an appropriate place to say, "Article V doesn't give Congress that power."
 

Ultimately, in my view, it's the courts which have the final say on the validity of an amendment. They are the ones who will enforce it (or not).

I don't think Congress can bind the states with a separate resolution on timing. That was my original point.

Nor do I think states can revoke a ratification. Without reconstructing the whole argument here, I'd argue that the issue is similar to Fletcher v Peck or Dartmouth College -- a ratification involves a binding commitment to the other states and can't be "undone".
 

Let's keep these issues in mind for the coming of a second constitutional convention. Until them, with the French Open in mind, the ball's in the Court, which might call a "let."
 

Eh, ratification is only binding when it reaches the 3/4th threshold. Up until that point I'd let the states do as they like.

Suppose, hypothetically, 19 states were to vote to ratify an amendment this year. The voters are outraged, and oust the responsible legislators. Next year they all vote to rescind their ratifications. Then in 2020 19 different states vote to ratify, and in 2020 THOSE legislators are ousted.

You'd put in the Constitution an amendment that never at any one time had more than 19 states supporting it, out of 50? That's the sort of absurdity that not allowing rescissions to count implies.

But, worse still is deciding after the fact that rescissions won't count; Some of those states might not have chosen to ratify if they'd known there would be no opportunity to change their minds, ever. Some of them explicitly put time limits on their ratifications, which might not have passes without those limits.
 

"Let's keep these issues in mind for the coming of a second constitutional convention."

Indeed, that is the appropriate thing to do. Our current Constitution isn't forever, and we should always be looking for improvements to keep in mind for the next. A list of mistakes to not make again.

One of the big mistakes the founders made was not getting specific enough about details, allowing people to try gaming the system in ways that weren't explicitly ruled out.
 

"Suppose, hypothetically, 19 states were to vote to ratify an amendment this year. The voters are outraged, and oust the responsible legislators. Next year they all vote to rescind their ratifications."

You've just described the basic facts of Fletcher v Peck (which involved a statute, not an amendment). Simplifying, the Court held that reliance interests could preclude a state from reversing itself.

Of course, I have no idea if the Court would agree with me on this. Nobody does because the issue has never arisen.
 

Looked that up; In Fletcher v Peck, the law in question had actually been passed, and become law. Then it was later repealed. Of course you can have reliance interests in a law that's actually on the books.

In the hypothetical I suggested, the amendment had not yet been ratified before the states changed their minds. There can't be any reliance interest in an amendment prior to it actually becoming part of the Constitution.

Individual legislators certainly can reverse themselves prior to a bill actually passing. This happens all the time when multiple votes are held on a bill.
 

The reliance is by other states: state B ratified in reliance on the fact that state A already had. State A can't then reverse its ratification.

That would be the argument, anyway.
 

Doesn't strike me as a very strong argument, prior to the amendment being ratified, you haven't actually gotten something to lose. And ratification is still at that point contingent on the actions of yet other states.

But people make not very strong arguments all the time, and sometimes win with them. As I said in my first comment, if the Court is determined to put the ERA into the Constitution, a weak legal case for doing it isn't going to stop them, they just need a suitable pretext.

I think, however, Trump will probably have replaced one or more existing justices before such a case could reach the Supreme court, lessening the likelihood of them groping around for such a pretext.
 

I asked this before and Mark said he doesn't recall it coming up but it is fairly telling to me that in my many readings on the ratification of the Constitution, it never even was suggested that states could revoke their ratification before the requisite number of states ratified. That would have been an important factor to consider, but it never came up to my knowledge.

Someone else also cited international law on this question holding that it can't be done in regarding to multi-party treaties. Long practice - not just concerned with the Reconstruction Amendments -- hold against it. But, weak arguments can be made, and views changed, especially if originalism and history & things not compelled by the text (as compared to somehow implied perhaps) matters to a person somewhat less.


 

Under Article V, Congress's only role after ratification is ministerial (counting ratifications) and it delegated that role to Office of the Federal Register (OFR) within the National Archives and Records Administration (NARA):

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

Article V provides no authority to Congress to place a time limit on any part of the amendment process nor to the states to rescind a ratification vote.

After 3/4 of the states vote to ratify, if the OFR counts or declines to count ratification votes after Congress's deadline or state rescissions at any time, then I presume there are two remedies: (1) Congress can rescind its unconstitutional deadline and/or (2) state(s) whose ratification vote(s) were not counted could bring a mandamus suit to force OFR to count the votes.
 

Mark Field provided a "long-standing practice generally only constitutes a precedent if the practice has been tested" rule.

I'm not sure how that applies. Many long-standing practices have generally been assumed. I was not aware that, since it wasn't tested, they really are of limited precedential value. After 100 years, that is a bit of a joker. And, how so? What does "tested" mean? Ignored and enforced? The assumption an expansion of the deadline was required the first time seems to be a sort of "test" by itself. The Supreme Court has ruled on the question in Coleman v. Miller as well, though for those who wish, you can state the relevant bit is unbinding dicta.

Dillon v. Gloss assumed there would be a reasonable time limit in pending amendments and in one of his posts, GM cited an interesting article that argued such a rule was logically in place for laws/treaties/etc. in general.

I'm unsure why congressional "power" to propose amendments and set up the "mode of ratification" cannot via the NPC at least include a deadline to enforce this general principle. The application to state legislature "mode" can include, e.g., some sort of reporting process where passage in state legislatures needs to be reported to the Secretary of State via a sworn statement by the relevant state official.

Coleman v. Miller held argued (the justices split but one wing if anything went further): "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 the submission of the amendment" can determine in effect if the proposed amendment is still ripe.

A time limit would provide an appropriate test here and don't think there is an (at least enforceable by the courts) ex post facto rule there either. Finally, in most cases at least, Congress is going to have to determine if such and such an amendment actually exists to know whether to apply it. The Supremacy Clause might also be relevant here to provide a final word. Judicial review is not the only enforcement method here & at least, the Supreme Court has spoken: this specific thing is a political question for Congress.

Of course, precedents can change.
 

"Article V provides no authority to Congress to place a time limit on any part of the amendment process nor to the states to rescind a ratification vote."

As I point out, if Congress incorporates a time limit into the actual amendment, as it did with Amendment 18, ratification of the amendment unavoidably ratifies the time limit, so that if 'ratified' after the time limit has passed, the amendment is, by its own terms, not ratified. I'll agree that it is an open question whether a time limit that was just part of the resolution proposing the amendment would be binding.

But you can't insist that the amendment is legitimately ratified, and thus a binding part of the Constitution, and then ignore that the amendment itself says it isn't in effect.

As to whether states can rescind ratification votes, Article V is silent on the question. I think it appropriate to say they can, because otherwise you are committed to saying that a proposed amendment was ratified even if at no one time was there even a majority, let alone the specified supermajority, of states favoring it.

It's good policy to let the voters oust a legislature which has approved an amendment, and let the new legislature reverse, so long as this happens before 3/4s of the states have approved.

But, if, (When?) we have a constitutional convention, making these matters explicit would be a good housekeeping amendment. There are a great many such amendments needed.


"I'm unsure why congressional "power" to propose amendments and set up the "mode of ratification" cannot via the NPC at least include a deadline to enforce this general principle."

The reason is that Article V doesn't give Congress a general, open ended power to "set up a mode of ratification". It merely gives Congress the option to chose one of two specific modes:

" 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; "
 

It is telling to me of Brett's mindset when he says in his 9:53 AM comment:

"I think, however, Trump will probably have replaced one or more existing justices before such a case could reach the Supreme court, lessening the likelihood of them groping around for such a pretext."

in referencing Trump and "groping around" in the same sentence. Brett, thanks for reminding us of the Hollywood Access Tapes as Trump tweets while his trade wars burn.
 

I'm looking forward to the Constitution's "Ladies Day" as I think of my mother, grandmother, wife and daughter and my love for them. (I loved a few other ladies, but this is a family Blog.)
 

Joe: Dillon v. Gloss assumed there would be a reasonable time limit in pending amendments and in one of his posts, GM cited an interesting article that argued such a rule was logically in place for laws/treaties/etc

After admitting that Article V did not expressly grant Congress power to set time limits on the states to ratify a congressionally proposed amendment, the Dillon Court simply assumed without any basis that Article V implied Congress may do so.

Given this finding was not necessary for the ruling affirming ratification of the 18th Amendment, a future Court could bypass this erroneous finding as dicta.
 

"a future Court could bypass this erroneous finding as dicta."

Bart, the 18th amendment says,

"Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
"


Was Section 3 somehow not ratified with the rest of the amendment?
 

BD: "Article V provides no authority to Congress to place a time limit on any part of the amendment process nor to the states to rescind a ratification vote."

Brett: As I point out, if Congress incorporates a time limit into the actual amendment, as it did with Amendment 18, ratification of the amendment unavoidably ratifies the time limit, so that if 'ratified' after the time limit has passed, the amendment is, by its own terms, not ratified.


Article V grants Congress the power to propose an amendment and then choose the mode of state ratification - vote by legislature or convention; and the grants the states the power to ratify. There is no grant of power to Congress to place a time limit on on the state power to ratify. When a law expressly grants some powers, but not others, normal textual construction holds that the express powers are the only ones granted.

If Congress places an unconstitutional time limit within the proposed amendment itself, the Court has two options: (1) hold the offending provision is void and allow the rest of the amendment to proceed through the ratification process or (2) hold the entire proposed amendment is void because to the one offending provision. I suppose the Court could apply the same analysis to proposed amendments that it applies to ordinary legislation to make this determination.

As to whether states can rescind ratification votes, Article V is silent on the question.

Once again, the express grant of the power to ratify, but no grant of a power to rescind, answers that question. The former grant in no way implies the latter.
 

Brett: Was Section 3 somehow not ratified with the rest of the amendment?

Section 3 was unconstitutional during the ratification process and would not have retroactive effect after ratification.
 

I see the precedent issue as a question of whether what I'd call "empty formalism" is to control. If Congress passes a resolution, but it never actually comes into effect and is never challenged, then that's nothing more than a statement that "Congress thinks X".

Sometimes the statement "Congress thinks X" can be a consideration in matters of interpretation. But in this case it's not a matter of "originalism" or contemporaneous construction or anything else -- Congress just started making such a statement 100 years ago. Nor is it a case where Congress is acting pursuant to a clear power; in fact, I don't see that Congress has any such power at all.* Nor is it a case where other involved parties -- the states and the Court -- have unambiguously affirmed Congress in this matter.

Joe's cite to Dillon and Coleman is a point against my argument, but I don't see either one as definitive. Neither is my argument, obviously.

*And I'm about as big a proponent of Congressional power as one could find.
 

Bart, Article V itself provided that a couple clauses in Article 1, Section 9 could not be amended away prior to 1808, and that no state could lose it's equal representation in the Senate without having consented to it.

1808 having passed already, aside from depriving a state of equal representation in the Senate without its own consent, there's no such thing as a clause of an amendment being "unconstitutional". The very concept is nonsensical. Amendments have as their very purpose changing the Constitution, any provision they run afoul of is inherently voided.

Really, I think you're letting your opposition to time limits on amendments prevent you from reasoning clearly about this.

Unconstitutional constitutional amendments? Come on, already.
 

Brett: Amendments have as their very purpose changing the Constitution, any provision they run afoul of is inherently voided.

I presume we are still discussing the 18A scenario where Congress proposes an amendment including a provision purporting to place a time limit on the states' Article V power to ratify.

I further presume you are conceding (at least for this discussion) Article V does not grant Congress the power to impose this time limit.

In this case, the time provision would not amend Article V.

Think about this for a moment.

Such a provision is by its own terms is limited to this single proposed amendment.

During ratification, the provision is unenforceable.

After ratification, the provision has no retroactive effect on the completed ratification and does not apply to any future amendments.
 

I agree, no retroactive effect. And certainly, no implications for later amendments. However, should the conditions to invoke clause 3 of the amendment have been met, the amendment itself states that "This article shall be inoperative".

If it pleases you to say that, had that happened, the amendment would have been part of the Constitution, but of no effect whatsoever due to clause 3, I don't see any point in disputing that.
 

Coleman v. Miller is useful in part because at issue there was a proposed amendment without the deadline in the text & the Supreme Court left the determination of contemporary ratification to Congress in open-ended terms. But, like our disagreement (ah nostalgia) over Ted Cruz, the point might change when directly pressed.

As to whether states can rescind ratification votes, Article V is silent on the question. I think it appropriate to say they can, because otherwise you are committed to saying that a proposed amendment was ratified even if at no one time was there even a majority, let alone the specified supermajority, of states favoring it.

Putting aside that it seems to be the accepted practice domestically and internationally, but in theory, the idea that you are given a chance to make a decision here and not have the power to take it back is reasonable. If three parties are needed to a contract, once the first signs, it is not unfair to determine it is binding, even if the other two get a month to decide whether or not to sign.

A time limit here is reasonable but a "no backsie" rule is fair. Once a state ratified the Constitution, who is to fully know if months later, the people of the state still supported it. There was not a continual plebiscite in such cases. There are fixed times for decisions to be made. Again, surely, it was at least possible that support might change over the months involved. But, I have never ... oh heck. "It seems fair to me" is the rule being used here, not historical practice. Which matters when it fit the "it seems fair to me" test.

The reason is that Article V doesn't give Congress a general, open ended power to "set up a mode of ratification". It merely gives Congress the option to chose one of two specific modes

I am not claiming an "open-ended" power. I'm saying it does have the power to "set up a mode" and the Necessary & Proper Clause provides Congress specifically power to enforce it. The idea this power is only "ministerial" is largely supposition. The general idea of contemporary ratification is a structural one that very well might be tied to what is "proper" in this case.

Anyway, the Supreme Court in effect said so in the 1920s and 1930s, arguing from historical practice etc.


 

Brett:

If the time limit provision is unconstitutional during ratification and has no retroactive effect after ratification, what does it matter what the provision states?
 

Again, clauses of amendments, with the sole exception of those reducing the representation of a state without its consent, are incapable of being unconstitutional.

What it matters is that if the clause states that the article is inoperative if ratified after a particular date, then if it was ratified after that particular date it would be inoperative.

Which might not be quite the same as never having been ratified, but it's close enough for government work.
 

Brett: Again, clauses of amendments, with the sole exception of those reducing the representation of a state without its consent, are incapable of being unconstitutional.

After ratification. Prior to ratification, they are just proposals. To the extent a time limit is a law of Congress, rather than a proposed amendment, it is unconstitutional.


 

I think maybe we're not too far apart except on a terminological basis. I would say that a time limit has to be part of the amendment to be constitutional, Congress has no power to set a time limit otherwise, and certainly not impose or alter them after the fact. Time limits in the amendment itself matter only because ratification empowers them.

If the amendment isn't ratified, the time limit is not in effect, but is also rather irrelevant. Time limits only matter when an amendment is ratified after the time limit has passed, and in that event, if the limit was included in the manner of Amendment 18, that very ratification makes the time limit constitutional.

The only real question here is whether being included in the resolution proposing the amendment is good enough. I would argue that it is, because the resolution and amendment are voted upon as one unit, the whole thing is the Article V "amendment". But I concede this is a debatable point.

I think where we really disagree is on the matter of rescissions. Article V is silent on the matter, but I think it necessary to accept them to rule out amendments being "ratified" which at no time have had supermajority support, and which may have been repudiated by the democratic process long before their purported 'ratification'.

As was the ERA, which failed ratification decades ago. I find it rather dubious that is currently has the support of all the states that once ratified, including the ones that later rescinded those ratifications.

The goal here is that amendments must have the support of a supermajority of the states. Let's not permit the process to be gamed in a way that circumvents that.
 

I think it necessary to accept them to rule out amendments being "ratified" which at no time have had supermajority support, and which may have been repudiated by the democratic process long before their purported 'ratification'.

The change of one vote (in theory) of the Wyoming legislature after it already ratified an amendment is a sort of "democratic" process and not having the exact level of supermajority support required would fail if revocation was allowed. This is true. But, given long practice here and abroad, it is likely open to reasonable doubt. So, how should the Secretary of State, in charge with officially declaring an amendment is ratified, operate here?

In Dillon v. Gloss (1921), it was noted: "That the Constitution contains no express provision on the subject is not, in itself, controlling, for, with the Constitution as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed." [19th Century precedents cited]

One implication is that amendments should not be pending for all time but proposal and ratification are at least somewhat contemporaneous. This is a logical conclusion. When Congress sets forth a "mode" of ratification such as "application to the legislatures," they can draw up a procedure (such as how to notify the SOS or a time limit) that is not part of the amendment itself but is "necessary and proper" to carrying out the power. CONGRESS is specifically give the power here.

Coleman v. Miller (1939), reaffirming a principle this earlier case:

"The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts."

There, no time limit was given when sending the amendment to the state, but the Supreme Court left it to Congress to decide if "conditions" changed too much for it to be contemporary enough. As to revocation, the 14A and 15A was cited, including as applied to NY. As noted in the past, separately, revocation related to the 19A was also rejected. Repeated attempts to specifically amend Art. V. to allow rescission failed. By someone's lights, this failure itself should be notable.

http://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1881&context=akronlawreview

At any rate, since Congress sets forth the mode of ratification and the Secretary of State guided by its regulation (NPC -- regulations to carry out constitutional powers in general) has the power to officially determine ratification, at the very least, it is very reasonable (and backed up by 80 years of court precedent) to have Congress make the final determination here.

The good practice in this case is not to extend the deadline while it was reasonable to do so in the 1970s. Congress has the raw power to recognize the "28A" but it would be bad to do so. A potential 38th state could be a reason to submit the ERA back to the states, which in 2019 very well might ratify. I think it shouldn't tbh, since I don't want to single out one group in an "equal protection" amendment.
 

The Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

A power is delegated in Art. V. to Congress to set a mode of ratification (two methods) and the Necessary and Proper Clause provides additional support to fill in details including regulations for the Secretary of State to follow.

The word "expressly" specifically not included unlike in the Articles of Confederation, implications of constitutional text is allowable and long precedent going back to the 18th Century probably (surely the 19th) can be cited as how that is a valid interpretative approach.

The power to revoke in theory is reasonable but precedent doesn't seem to have recognized it. OTOH, to the degree some body has a final say to determine doubtful questions left open, the NPC cites one specific body.
 

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