Of Synchronicity and Supreme Law

I want to flag a wonderful new paper by Sai Prakash that examines the time limits that accompanying the enactment of statutes, the ratification of treaties, and the proposal and ratification of constitutional amendments. My interest in this topic stems from my research on the status of the Equal Rights Amendment, which is discussed in the paper. I don’t agree with all of the conclusions he reachs, but it’s well worth your time.  Here’s the Abstract:

The Constitution identifies three forms of supreme federal law — the Constitution, laws, and treaties — and specifies, to some extent, procedures for their adoption. Yet it says rather little about questions of timing and the making of those laws. In particular, it does not directly address whether the chambers must act on bills in close proximity to each other, whether amendments may be proposed across eras or ratified across centuries, or whether the President may finalize a treaty decades after the Senate consents to its ratification. This essay is the first to offer a comprehensive account of existing lawmaking practices as they relate to time. It also considers how those timing practices have evolved in often fascinating ways. Finally the essay argues that the Constitution imposes a requirement of synchronicity across these three forms of federal lawmaking. In particular, bills must be perfected into law within a congressional session, a rule immanent in the Constitution’s incorporation of the concept of a “session.” For constitutional amendments, the limits are more complicated. With respect to the proposal of amendments, both chambers of Congress must pass the proposal within one session. Moreover, once Congress sends amendments to the states, those proposals lapse if they are not ratified within a reasonable period. Finally, treaties are similarly constrained by a requirement of synchronicity. In particular, the President must make treaties within a reasonable time after Senate consent to their ratification. These are controversial assertions because if they were widely accepted, it would have far-reaching (and, in some cases, disturbing) implications for how our institutions currently fashion and refashion Supreme Law.

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4 Responses

  1. Brett Bellmore says:

    ” In particular, the President must make treaties within a reasonable time after Senate consent to their ratification. ”

    I’m confused here; The President negotiates treaties, the Senate then either ratifies or does not. If the Senate ratifies, it is then a treaty, without any further Presidential action. The quote appears to invert the constitutional order of events.

    • Brett Bellmore says:

      To be clear, I’m aware that there is often some kind of informal negotiation between the President and Senate prior to or contemporaneous with the President negotiating with the other countries. But the key word here is “informal”, that end of the treaty making process isn’t constitutional in nature, so I don’t see how there could be a constitutional schedule for it.

  2. Joe says:

    “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

    The article discusses how the process involves the president negotiating a treaty, signing it, submitting it to the Senate and then it has to consent. But, things aren’t finished. “While Senate consent is a necessary condition for treaty making, it is not sufficient. Rather, such consent yields options for the president.” The treaty is final when the parties “exchange ratification instruments.”

    The President can refuse to ratify, including if the Senate added conditions to its ratification. The other nation (or nations) can refuse to ratify. There also can be ratification after a span of time — the Constitution gives the President a set time to sign a bill. No such explicit time limit is in place for treaties. The paper argues for an implicit one. The article gives examples such as the different period of times taken by President Washington to sign treaties.

  3. Los Angeles says:

    in reference to the word “synchronicity”, I don’t think it applies well in the context of the subject. The law sets guidance and rules for every imaginable subject in our society but, it cannot make things meld in a synchronized fashion. If you segmentalized parts of laws you can come close to the so-called perfection however, it takes much more brain power than those involved to fit together the entanglement of past, present and possible future laws.

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