State Rescissions of Constitutional Ratifications

If the ERA ever does come back before Congress, one issue that will almost certainly come up is whether three-fourths of the states have ratified given that some repealed their ratifications in the 1970s. While Congress is free to disregard state rescissions and has never recognized such a state right, I cannot see why a state should be precluded from rescinding a ratification under Article V.

There has to be some logical consistency. If Congress can change its mind about the time limit for ratification, then why can a state not change its mind about ratifying? Finality in the process, you might say, only comes when the amendment is ratified. None of the arguments made against state rescissions are persuasive in my view, though I’m open to hearing counterarguments.

Are there circumstances where Congress should ignore a clear state rescission? Maybe they are the same considerations that drive whether an amendment is timely ratified in the absence of a clear deadline. Or maybe they are different. I’m not sure.

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9 Responses

  1. Brett Bellmore says:

    I can see only one circumstance under which a clear state rescission should be ignored: If it comes after the necessary number of states have ratified.

    “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;”

    Note that Article V says that the amendment is part of the Constitution once the necessary number of states have ratified. NOT once Congress has acknowledged that they have ratified. Congress’ constitutional role in the amendment process ends when the amendment is sent to the states.

  2. Joe says:

    ” I cannot see why a state should be precluded from rescinding a ratification under Article V.”

    If Congress can simply ignore it, this doesn’t to me amount to much of an argument at the end of the day.

    To have much force, the rescission has to have some bite. But, precedent holds Congress can simply ignore it & over a hundred years of precedent [involving more than the 14 & 15A] is a fairly decent argument. And, the Supreme Court has held in Coleman v. Miller that in effect Congress has the power here as a “political question” to decide questions regarding the amendment process. A national body, which includes specific states that rescind, is not the same thing as a single state acting. And, extending a time limit — the states being aware of Coleman v. Miller providing congressional discretion — is not just the same thing as a state taking back a “yes.” Giving people more time to decide is not the same thing as allowing them to change positive decisions they already made.

    • Brett Bellmore says:

      This is all just rationalization, in my opinion. It may be rationalization that federal judges have signed off on, (Because they were confirmed by the people the rationalizations transferred power to.) but it’s still just rationalizations.

      Ultimately it needs to remembered that political processes at some point don’t just need to be considered legitimate by the winners. The winners are always going to excuse any irregularities.

      Political processes need to be considered legitimate by the losers, too, if they have any significant numbers. Otherwise you have civil unrest, possibly even civil war.

      Gerard has been discussing various tricks that might be used to revive the defeated ERA. Those who favor the ERA won’t care how they win.

      Those who oppose it are the people Gerard should start thinking about. Because nobody who didn’t already favor the ERA would regard the maneuvers he’s discussing as legitimate, and a preordained court ruling in their favor wouldn’t change that.

      He’s discussing constitutional dynamite, the sort of thing that could lead to a civil war.

      • Joe says:

        I don’t think precedent alone makes something okay but it is not merely a “rationalization” — when determining if something is allowed, precedent, text reasonably allowing etc. is how you go about it. It is basic constitutional interpretation. Disagreeing is not the same thing as one side cheating.

        It really helps if losers accept things as legitimate, but at some point, beyond this example, if losers are unreasonable, there is not much that can be realistically done. I think GM is a fair guy & is putting forth arguments here even for amendments he might oppose.

  3. Joe says:

    “Congress’ constitutional role in the amendment process ends when the amendment is sent to the states.”

    Article V express text, especially given the Necessary and Proper Clause gives Congress specifically the power to fill in blanks there as to execution, does not to me appear to be that clear. For instance, can Congress “send” the amendment with instructions as to a basic format such as to determine legislatures truly ratified? There might be a fear that that state legislatures will lie about what truly occurred, so some procedural rules will be set up. Oversight of the practice could include some role for Congress. Or, a seven year limit might be extended for a short time period in the case of a natural disaster. etc.

    The ultimate question seems to be if a state can rescind. The text speaks of “when ratified” and that doesn’t tell me that a state can ratify and then take it back. Maybe it can. But, the text isn’t by itself clear. What, e.g., was the rule in comparable situations in 1787? If a state took back its ratification of the Constitution would it have counted? Was such a thing discussed? And, Congress ultimately has to treat an amendment actually ratified as a full part of the Constitution. It has to know when an amendment is truly ratified. It has to decide whether a rescission counts. Do all rescission count? Can a rescission not count for any reason? Seems a complicated question that might be up to the Congress to decide. At the very least, the Supreme Court seemed to say so in the 1930s.

    • Brett Bellmore says:

      Article V doesn’t say anything about Congress counting the ratifications. It says the amendment becomes part of the Constitution when enough states have ratified, not when Congress admits or asserts that the states have ratified.

      I think the problem here consists of not wanting to take seriously the fact that the US is made up of sovereign states. Was created by sovereign states. And the Constitution is a compact between sovereign states.

      The people are the actual sovereign, of course, but they are the sovereign in finite collections called states, and act as states whether they ratify by legislative vote or convention.

      You’re treating state approval of amendments as a kind of formality which can be cleverly worked around by Congress. So that it doesn’t matter if enough states ratify, if Congress refuses to count them. Or that they’ve withdrawn their ratification, if Congress refuses to count that. This transfers the states’ power in the matter to Congress. But the power to ratify was purposely not given to Congress, and it is improper for Congress to usurp it by supposedly clever sophistry.

      Even if the federal judiciary is ok with that usurpation, because they’re all chosen at the federal level, and are partial to the federal government.

      • Joe says:

        “Article V doesn’t say anything about Congress counting the ratifications.”

        It doesn’t explicitly say states can rescind their ratification either — it is however a reasonable interpretation to what is said along with the fact that the Constitution explicitly gives CONGRESS special power to fill in the blanks via the Necessary and Proper Clause.

        Anyway, Congress HAS to do it somehow — if an amendment, e.g., requires congressional action or gives it power, Congress has to know when an amendment is there. You can’t think of any situation where a ratification is actually a fraud and shouldn’t be counted? If so, who does that? So, we have to go back to if rescission are allowed, which the text alone doesn’t clarify.

        The idea Congress should have some role here doesn’t mean it gets to do anything it wants, but with respect, yet again you are exaggerating what I’m saying. So, e.g., I gave a limited example of how Congress sets up a ratification procedure or might extend a deadline because of a natural disaster etc. This would provide them — allowed by the text — some role after submission without the carte blanche you suggest.

        I think GM is just brainstorming here myself and btw I don’t really “favor the ERA” (I don’t like singling out one aspect of equal protection any more than one aspect of free speech) but if I did, I OPPOSED the extension of the deadline. I doubt I’m alone. Plus, I doubt the current Congress would allow it, especially since a minority probably could block it. Finally, IF it didn’t, we would have representatives and senators from “sovereign states” acting, after three legislatures from “sovereign states” acted & asked them to do so. Meanwhile “sovereign states” will continue to act as such is a range of ways.

  4. Gerard Magliocca says:

    To say that Congress has the authority to act does not mean that I think this authority should be exercised.

    • Brett Bellmore says:

      Perhaps it’s more in the nature of power, than authority. Like an umpire has the power to rig the outcome of a game, but not the authority to do it. I think that’s what we’re looking at here.