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.

 

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1 Response

  1. Joe says:

    “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.”

    Eh. One state is different than Congress & WHY the Congress waives the deadline can make it different from the state.

    Precedent is that states and nations don’t get “backsies,” apparently (someone noted this on another blog when this author posted a comment on this subject as applied to nations ratifying treaties). The whereas suggests sometimes congressional extension might be invalid — details might matter here. The “reasonably contemporaneous” rule is judgment call. If Congress originally sets a three year deadline and then extends it (e.g., because of some judgment call that more time is needed because something else was the focus of attention of states, such as economic factors) for three more, it could be “reasonably contemporaneous.” Extending it thirty years later? Not the same thing.

    The rules here need not require both Congress and the states to be on the same footing in regard to extending/rescission. It very well might depend on the details.