Repeal of Constitutional Ratification–Part II

Yesterday I posed the question of whether Congress can repeal the judgment of a prior Congress that a constitutional amendment was validly ratified under circumstances in which there is a plausible dispute about that point. Here’s a special attribute of the ERA that might require a conditional yes.

Section Three of the ERA says that the amendment shall take effect two years after its ratification. I think this means that within two years Congress could withdraw assent. In other words, the argument for finality of a constitutional amendment decision does not work until the amendment takes effect. Normally that is “immediately.” But not in this case. Thus, the succeeding Congress probably can repeal what the prior one has done. Once the amendment takes effect, though, then probably not.

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7 Responses

  1. Brett Bellmore says:

    ” I think this means that within two years Congress could withdraw assent. ”

    I don’t think that makes any sense. Once Congress has sent an amendment to the states, their discretionary part in the process is done. Ratification is up to the states. Counting the states’ votes is just counting, there shouldn’t be any discretion involved.

    It’s true that Congress could decide to create a constitutional crisis by refusing to admit an amendment had been ratified, or fraudulently claiming one had been ratified, but that’s different from saying they have discretion to not “assent” to an amendment. That implies that they legitimately have a choice to exercise, not that they’re simply in a position to do wrong if they want.

    The two year period was just to allow time for policies to be altered to conform to the amendment.

  2. Gerard Magliocca says:

    Well, but what if there is a genuine question of whether an amendment is ratified? For instance, some states necessary for the three-fourths have rescinded. Congress has to decide, right? Now if may be that such a decision is final. I’m not sure why though. Why do you assume that the answer is always clear? The ratification of the 14th was anything but.

    • Brett Bellmore says:

      The 13-15th amendments, much as I like them, were basically ratified at gun point by the southern states, in some cases literally. It’s not a model for ratification of amendments unless we have another civil war, and even then would be a bad model.

      There can be genuine questions, I suppose, but “assent” implies choice, not judgment.

  3. Joe says:

    I think the lag time time allows for the country to prepare for the changes required by the amendment. In a fashion, it is “taking effect” — it takes time to get ready and once it is in place actions will be done to do so. I don’t think it means CONGRESS could withdraw consent once the requite amount of states ratified. There is the difference in place of an amendment not actively in effect but don’t think that matters enough for Congress to say “backsies.”

    “much as I like them, were basically ratified at gun point by the southern states”

    The first ten amendments were proposed since there was a presumption that key states expected them. There was some pressure there — some sense of “gunpoint” of what would happen if they weren’t offered. The amendment process like laws, treaties and so forth will at times be used when the option not to agree will be pretty serious. It’s part of the overall system in place. The suggestion of taint here is being used selectively.

    The application of it to the 13th Amendment especially is dubious. Only a few Southern states were required there and by the end of 1865 it was recognized slavery was over. A basic agreement was made that it would be a sign of good faith, but again so was true with the BOR — there was an implicit expectation of an agreement of good faith. I think an examination of various state and federal laws will show comparable situations.

    Consider a pardon in the heat of a rebellion deemed necessary for the peace. The chief executive very well can say afterwards they only did so “at gunpoint.” But, that is assumed to sometimes occur by the power anyways. It doesn’t suddenly make it not really a precedent of the pardon power. Amendments too will at times be under some duress, including those who violated the Guarantee Clause being provided a means to show good faith and Congress having an alternative to protect the civil rights of all citizens.

    • Brett Bellmore says:

      “Some duress”???? In some cases they literally had armed soldiers in the legislative chamber during the vote!

      I’m not saying I regret those amendments, but the way they were ratified stank on ice. It is absolutely not a model to emulate outside of a civil war, and ideally not even then.

  4. Joe says:

    There repeatedly was violence or threats of violence in the South during those years specifically during elections, so it is not surprising that armed soldiers were in place at times to protect the peace. The implication apparently is that people thought they couldn’t vote against it or they would be shot or what? Again, especially for the 13A, that simply wasn’t likely much of a factor writ large as to ratification. Plus, your argument on this point over the years was more open-ended in nature.

    The 13-15A ratification had certain special characteristics including things that influenced people who might given their druthers vote the other way, but as noted, it was not alone in that fashion. As to the specific issue, that is also not the only time one or more states attempted to rescind their vote (and it was not counted) before the ERA. One example would be during the 18th Amendment process.

    And, this is relevant to another argument you toss out there, there were repeated failed attempts to explicitly amend to allow states to rescind. I don’t think that closes the deal myself, but you argue the failure of passage & the fact one argument put out there by supporters/opponents was based on gay rights, people in effect are trying to do something they already lost on by using another constitutional provision decades later per the developments since then.

    • Joe says:

      (The 18A was challenged on various grounds but it looks like the rescission issue specifically arose and was rejected in respect to the 19th Amendment. That is fitting. It also arose during the 15th but note that Northern states were involved there, changing the implications a tad.)

      See, e.g., “Reversals in the Federal Constitutional Amendment Process: Efficacy of State Ratification of the Equal Rights Amendment.”

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