Repeal of Constitutional Ratification

Here’s a question that I’m working through as I start writing about the ratification of the ERA. Suppose tomorrow Congress enacted a law repealing the Act that admitted California to the Union. Would that be constitutional?

You could say yes. Any statute can be repealed by Congress, and California was admitted through a statute. If a state admission statute is an exception to repeal, then what is the textual basis for saying so?

You could say no. American citizens cannot be permanently deprived of their representatives and Senators by a mere statute. State admission has always been treated as a final decision, subject to only the exceptions in Reconstruction. And there is authority that all states must be on an equal footing, which would not be true if some states can be repealed while the original 13 cannot.

Now comes the next question. If Congress resolves a disputed ratification of a constitutional amendment in favor of ratification, can that be repealed through a simple joint resolution? For example, if Congress concludes that the ERA was ratified by three-fourths of the states and waives the time limits imposed in the 1970s, can the next Congress reverse that decision on the grounds that three-fourths of the states did not ratify given some states repealed their ratifications?

It seems odd to think that a constitutional amendment could be repealed by a joint resolution. On the other hand, any other joint resolution can be repealed. Are Article Five decisions by Congress final? If so, why?  (Sure, as a practical matter you can say that they should be final, but are they truly final?)

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1 Response

  1. Brett Bellmore says:

    So, you’re gaming out the consequences of Congress declaring an unpopular amendment ‘ratified’ on sketchy grounds?

    I think you’re facing the political equivalent of Gödel’s incompleteness theorem here. No constitution can completely define the rules for applying itself.

    This is just one of those reasons why you don’t want to stretch the rules in claiming an amendment “ratified”: By doing so you make un-stretching the rules to undo the act seem more reasonable.