Balkinization: The Right of Rescission

The Right of Rescission

Gerard N. Magliocca

I was away on a vacation and returned to see Sandy's interesting posts on the ERA. In one respect, I am in complete agreement with him. States should be able to rescind their ratification votes for an Article Five amendment. Thus, my view is that Congress should not consider the ERA part of the Constitution until SIX more states ratify (as five rescinded their yes votes in the 1970s).

Unfortunately for me and for Sandy, Congress may not agree when the time comes. In 1868, Congress disregarded rescissions by Ohio and New Jersey in declaring the Fourteenth Amendment ratified. And the Supreme Court stated, in Coleman v. Miller, that state rescissions raised a political question for Congress. (Remember that in 1939, when Coleman was decided, many in the South saw the Fourteenth Amendment as illegitimate because of its various procedural irregularities. The Court may well have had this in mind in saying that those sorts of questions could not be reviewed.)

What if Congress decides to follow the Fourteenth Amendment precedent and disregard the ERA rescissions? One point I will make in my draft paper on this subject is that you can read the 1868 rejection of rescission as requiring at least a two-thirds vote in each House of Congress. This is, in fact, what happened then. And there is a good reason for requiring a supermajority to reject state rescissions. First, such a rule recognizes the federalism interest in states getting to change their minds. Second, such a rule would alleviate concerns about the legitimacy of ratifying in the face of rescissions. (Basically, you would need a broad coalition of both parties to "count" rescinding states.)
Accordingly, if Congress insists that states do not have an unqualified right to rescind, then a two-third voting rule should be applied to the final decision to rescind.

Posted 11:15 AM by Gerard N. Magliocca [link]

Comments:

In light of your forthcoming paper you don't have to answer this, but I'm curious how you reconcile a Congressional power to judge ratification in light of this language in Art. V: amendments "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...." It looks intended to be a self-executing process.

# posted by

Mark Field : 11:23 AM

"States should be able to rescind their ratification votes for an Article Five amendment."

OTOH, it is unclear if they actually are able to.

Anyway, the analysis of this question has shown that not only the "Fourteenth Amendment" was involved regarding recissions though even there, notable that Ohio and New Jersey, not some former Confederate state were involved. It is not like this case turns on finding a single instance being binding giving so much time passed.

Since it wasn't just one thing, it makes it harder to find some sort of 2/3 rule based on one incident. Basically, at any rate, we are setting forth a new filibuster rule where a potentially small coalition of states "alleviate concerns" because only let's say 36 states ratified ... that is ... if we (as the text doesn't even seem to warrant) allow two small states, perhaps based on a few votes in their state legislatures, rescind their votes.

I continue to find all of this absurd on some level as applied to the specific debate. Dillon v. Gloss & Coleman v. Miller recognized the principle of a contemporary connection between proposal and ratification. A time limit was set up. It passed. On that ground alone, the ERA should be seen as dead. The recissions are but a garnish there, icing on the cake, that would at best be relevant in a close case.

This issue is a side show. Nearly forty years has passed. Equal protection law developed significantly. Having a few states ratify text that has very different implications than the rest is a bigger issue that the recission process itself. Mark's concern is valid, but what "should" be true is being pushed here. So, shrugs to that, I guess.

# posted by

Joe : 11:55 AM

"In 1868, Congress disregarded rescissions by Ohio and New Jersey in declaring the Fourteenth Amendment ratified."

The Reconstruction amendments involved so many "procedural irregularities", up to and including state legislatures voting on ratification at gun point, that the very idea the precedents they set should be respected in peace time is, IMO, crazy.

Might as well claim Kormatsu is a respectable precedent. Things happen in war time and its immediate aftermath that we should be ashamed of, not plan to emulate.

" It looks intended to be a self-executing process."

Indeed, I believe it was. Legal 'realists', though, seem fond of viewing points in the system were abuse can be effective as just another part of the mechanism.

# posted by

Brett : 12:32 PM

It's interesting that the previous threads showed 3 main areas of contention represented by me, by Joe, and by Brett, yet all 3 of us disagree with Prof. Magliocca's interpretation.

# posted by

Mark Field : 12:47 PM

Analysis of the question also noted that recission was seen as not allowed when the 19A was involved. That was after a war too, I guess. I noted that original Bill of Rights (if I'm allowed to call them that per GM's book that was interesting but didn't to me prove one of his theories) could be seen as not freely passed either. Reasons can be found to not count various things. Helpfully, the issue here doesn't merely turn on the ratification of the 14A.

# posted by

Joe : 1:04 PM

"as five rescinded their yes votes in the 1970s"

Incidentally, didn't some of the states place explicit time limits on their ratifications, stating that they would be inoperative after the Congressional time limit was reached? In addition to the rescinding states?

# posted by

Brett : 1:28 PM

I continue to find all of this absurd on some level as applied to the specific debate. Dillon v. Gloss & Coleman v. Miller recognized the principle of a contemporary connection between proposal and ratification. A time limit was set up. It passed. On that ground alone, the ERA should be seen as dead. The recissions are but a garnish there, icing on the cake, that would at best be relevant in a close case.
i get content

# posted by

Anonymous : 3:06 PM

Gerard:

Article V neither expressly or impliedly grants the states the power to rescind their ratification votes or Congress the power to accept such rescissions, with either a majority or supermajority vote. Congress's role after ratification is purely ministerial.

If you and Sandy would like to amend Article V, I would love to read and discuss the proposed amendment.

# posted by

Bart DePalma : 3:08 PM

Regarding Idaho v. Freeman, it's perhaps relevant that the Supreme court dismissed the case as moot, on the basis of the Congressional time limit having passed.

So the constitutionality of time limits appears to me to have been upheld by the Court.

# posted by

Brett : 4:07 PM

Brett:

This is one more example of the Court avoiding ruling on Article V matters.

# posted by

Bart DePalma : 4:13 PM

Bart, I don't think you can avoid that this actually amounts to the Court saying Congressional time limits are valid.

Or else the lower court decision wouldn't have been mooted.

# posted by

Brett : 6:13 PM

Brett: I don't think you can avoid that this actually amounts to the Court saying Congressional time limits are valid.

The past Court implied this, but I do not believe the case is binding on future courts.

What disturbs me is the courts continual punting of cases involving the interpretation of Article V and ministerial functions of Congress as political questions. For example, will the courts punt if Congress refuses to call a convention of the states or refuses to recognize an amendment ratified by the states in the face of the required number of applications or ratification votes?

# posted by

Bart DePalma : 10:53 AM

This classic matchup between our dynamic dyslexic libertarian duo Bert and Brat betrays the skepticism demonstrated by each with SCOTUS expressed over the years at this Blog. Bert now relies upon a particular SCOTUS decision for his position that Brat does not think would bind "future courts." But Brat goes further with his screed:

"What disturbs me is the courts continual punting of cases involving the interpretation of Article V and ministerial functions of Congress as political questions. For example, will the courts punt if Congress refuses to call a convention of the states or refuses to recognize an amendment ratified by the states in the face of the required number of applications or ratification votes?"

Yes, Brat is definitely disturbed, as he has once again punted out of bounds. So non-lawyer Bert gets the W.

In the meantime, we'll all be in suspense awaiting Gerard's draft article for the continuation of "time loop" a la "Groundhog Day" of this potential constitutional crisis.

# posted by

Shag from Brookline : 11:56 AM

This comment has been removed by the author.

# posted by

Joe : 1:36 PM

I referenced an interesting article GM cited in the past and just found it:

"Of Synchronicity and Supreme Law"

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3109720

It speaks of the general issue of time limits, including for treaties and amendments. The article addresses my compensation question. It provides evidence that the compensation amendment was understood to have "failed" in part as shown by the very same amendment* being proposed again in 1816 [less than thirty years after the original was sent to the states for ratification]. When Ohio "ratified" the original in the 1870s, there is evidence people saw it as merely symbolic, not actually part of a still active process.

This sort of thing is merely informative but notable. The article discusses the overall question in depth including citing a OLC opinion in 1977 supporting an implicit time limit (the OLC changed its mind somewhat when the 27A was apparently ratified). It suggests seven years is a reasonable rule of thumb here. Suffice to say much longer would be dubious. Over thirty years? No. It also cites my concern about the changing understand of the text.

A short ratification period will help address the contemporary agreement issue and a period of even shorter than seven years. Most amendments were ratified within two or three years, none much longer than that.

---

* Various proposals are cited, some with minor differences in wording, but there was apparently no assumption the original was still active.

# posted by

Joe : 2:27 PM

So, might there be a concept of laches implicit in the Constitution when it comes to amendments that have been proposed? Might such a concept implicitly put a no-no on a state rescinding its earlier ratification? Are we in for six more weeks on this issue?

# posted by

Shag from Brookline : 3:09 PM