South Dakota Rescission
In my research for the ERA article, I came across a terrific nugget in South Dakota’s rescission of its ratification of the ERA. This rescission is the only one that links that choice to Congress’s decision to extend the ratification deadline from 7 years to ten years. Here is the relevant passage:
WHEREAS, the purpose for establishing a clear time period for consideration of ratification by the states is to permit consideration of the substantive amendment by a reasonably contemporaneous group of legislatures in the several states in the absence of a clear determination of the ability of a state legislature to rescind a ratification of a proposed amendment which has not been ratified by the constitutionally required three-fourths of the several states; and
WHEREAS, if the Congress of the United States ex post facto can unilaterally alter the terms and conditions under which a proposed amendment to the Constitution of the United States is submitted to the several states for ratification in the absence of a clear determination of the ability of a state legislature to rescind a previous ratification, the effect will be to inhibit state legislatures from acting promptly on any proposed amendment for fear of transferring the power to amend the Constitution of the United States to a small minority of the several states, and, perhaps, even a small minority of several generations, and
WHEREAS, the opinion that the Congress of the United States ex post facto has the power to unilaterally alter the terms and conditions under which it submits proposed amendments to the Constitution of the United States would necessarily inhibit debate on the merits of the proposed amendments and force each legislature to consider the probability and timing of the possible ratification of other state legislatures because of the uncertainty caused by the perpetual possibility of a sudden change in the Constitution of the United States due to a shift in opinion in a small number of states
This is fascinating in a couple of respects. First, South Dakota did not say that Congress lacked the power to change ratification deadlines; they just said it was a bad idea. Second, there is an explicit link here between the finality of the deadline and the finality of state ratification deadlines (with a good explanation for that link). My theme in the paper is that Congress can waive the ratification deadline, but only if the rescissions (including South Dakota’s) are deemed valid.