About Our Constitution, a Series

Article 6 – Proposal of Amendments, Part 2
By David Robert Wood
March 15, 2011

In the preceding article, the general constitutional amendment process, as exclusively stated in Article V of the Constitution, was discussed, which included a discussion on limitations of the Amendment Power. Also discussed were the two proposal methods, those being proposal by State Conventions or by Congress.  Following is a further discussion on the proposal of constitutional Amendments including the involvement of the President, congressional establishment of ratification time limits and Congress’s extension of such time limits.

Presidential Involvement in Proposing Constitutional Amendments

As previously discussed, the congressional process for proposing an Amendment to the Constitution is virtually identical to the introduction of any other “Bill” or “Resolution;” and, this normal lawmaking process involves the President.  Article I, Section 7, Clause 2 of the Constitution specifies that every Bill passed by Congress shall be approved, or disapproved by the President of the United States. Further, in accordance with Article I, Section 7, Clause 3, the President of the United States shall approve, or disapprove, “every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary.”

As such, the norm for legislation passed by Congress is the requirement for the approval or disapproval of the President. If disapproved by the President, or vetoed, the Congress may override the veto by a two-thirds vote in each house.  However, relative to amending the Constitution, Article V does not specifically indicate the involvement of the President.

The question of the President’s role in the constitutional amendment process was addressed early-on in the country’s history.  Article of Amendment XI, which limited the judicial powers in Article III of the Constitution, was proposed in 1794 and was fully ratified in 1795.  The validity and application of this Article of Amendment, which was not approved by the President, was questioned in the 1798 Supreme Court case of Hollingsworth v. Virginia.  The Court held that the Article of Amendment was valid, that it had been adopted in accordance with the Constitution and further, that Presidential approval was unnecessary and inappropriate.

The Court observed that amending the Constitution is “a substantive act, unconnected with the ordinary business of legislation, and not within the policy, or terms, of investing the president with a qualified negative [veto] on the acts and resolutions of Congress.” Further, according to Supreme Court Justice Samuel Chase “the negative [veto power] of the president applies only to the ordinary cases of legislation. He has nothing to do with the proposition, or adoption, of amendments to the Constitution.”

However and notwithstanding this 1798 Supreme Court ruling, the proposed, un-ratified Amendment protecting slavery was “Approved” by President James Buchanan on March 2, 1861. Further, five years later on February 1, 1865, President Abraham Lincoln “Approved” and signed the proposed Amendment eliminating slavery, which was subsequently ratified as Article of Amendment XIII.

With respect to Article of Amendment XIII, Congress immediately recognized that Presidential approval was inappropriate.  On February 7, 1865, subsequent to the President’s “Approval,” the Senate, as the originating house of the proposed Amendment, passed a Simple Resolution declaring the approval of the President to be “unnecessary” and that it “should not constitute a precedent for the future,” as follows:

Resolved, That the article of amendment, proposed by Congress, to be added to the Constitution of the United States respecting the extinction of slavery therein, having been inadvertently presented to the President for his approval, it is hereby declared that such approval was unnecessary to give effect to the action of Congress in proposing said amendment, inconsistent with the former practice in reference to all amendments to the Constitution heretofore adopted, and being inadvertently done, should not constitute a precedent for the future, and the Secretary is hereby instructed not to communicate the notice of approval of said proposed amendment, by the President, to the House of Representatives.

In the official publication of this proposed Amendment in the United States Statutes at Large, February 1, 1865, the inadvertent “Approval” date by President Lincoln, was erroneously indicated as the proposal date.  The correct date was January 31, 1865, which was the congressional passage date.

The issue of Presidential approval of a proposed Amendment was also addressed relative to the July 12, 1909, proposal of Article of Amendment XVI on income taxes.  On July 15, 1909, an internal Department of State advisory memorandum was issued on this subject prior to this proposed Amendment being transmitted to the States.  It concluded, citing the 1798 Supreme Court decision, that the presidential approval of a proposed constitutional Amendment was inappropriate.  Thereafter, on July 26, 1909, this proposed Amendment was transmitted to the States by Secretary of State Philander C. Knox and President William H. Taft did not sign nor approve it.

Interestingly, and relative to Article of Amendment XXIV which prohibited poll taxes, President Lyndon Johnson, at his request, signed the General Services Administration Certification of validity, dated February 4, 1964, proclaiming final ratification. In doing so, President Johnson was advised that he should not use any words indicating “approval” and that it would not be proper for the President to “proclaim.” As such, the President signed the Certification with the following inscription:

The foregoing was signed in my presence on this
4^th day of February, 1964.

This specific language was designed to mean “simply that the President was a spectator to the formalities of the Administrator [of General Services], and wished to record his presence by his signature on the certificate.”

Timeframe for State Ratification

The Constitution does not provide a time limit for the ratification process. However, starting with the December 18, 1917, proposal of Article of Amendment XVIII on alcohol prohibition, and with the exception of the proposals of Article of Amendment XIX on woman’s suffrage in 1919 and the un-ratified “Child Labor” Amendment in 1924, proposed Amendments have included seven-year time limits within which the three-fourths State ratification was to be accomplished. The proposals of Article of Amendment XIX and the “Child Labor” Amendment, like the earlier proposed Amendments, did not include time limits for ratification.

Congress’s Power to establish a time period for the ratification of an Amendment was addressed in 1921 in the Supreme Court case of Dillon v. Gloss. On appeal from the U.S. District Court for the Northern District of California, the appellee futilely argued that Article of Amendment XVIII was invalid; claiming that Congress’ action in setting a time period (seven years) in which final ratification was to be accomplished was unconstitutional. In response, the Supreme Court found that it was within the scope of Congressional power, and not a constitutional violation.

In the Court decision, it was observed that the fact “the Constitution contains no express provision on the subject [of setting a time limit for ratification] is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed.” And, the Court concluded, that “the fair inference or implication from Article 5 [of the Constitution] is that the ratification must be within some reasonable time after the proposal” of an Amendment, as determined by Congress.

As to the question of what timeframe is reasonable, the Court deferred to Congress, indicating that this was a “Political Question” and not justiciable. The Court noted “Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with the subsidiary matters of detail as the public interest and changing conditions may require; and Article 5 [of the Constitution] is no exception to the rule. Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.”

In 1939, the reasonableness of the timeframe for ratification was again raised in the Supreme Court case of Coleman v. Miller. This case involved the 1924, proposed Amendment on “Child Labor” and the 1937 Kansas legislature’s ratification of it. Specifically, was Kansas’ ratification valid given the lapse of time from the proposal of this Amendment in 1924, to their subsequent ratification action in 1937?

The Court noted that unlike Article of Amendment XVIII, which included a time limit for ratification, the proposed “Child Labor” Amendment included no time limitations. The Court also observed, in reference to the 1921 decision in Dillon v. Gloss, regarding Article of Amendment XVIII, that, “We have held that the Congress in proposing an amendment may fix a reasonable time for ratification.”

And, following the 1921 ruling, the Supreme Court again held that it, the Court, has no power to rule on the reasonableness of a time frame for ratification of a proposed Amendment, nor whether any proposed Amendment may otherwise be ruled ineffective as being stale dated.  Such are the sole Powers of Congress.

Chief Justice Charles Evans Hughes, delivering the opinion of the Court stated, “our decision that the Congress has the Power under Article 5 [of the Constitution] to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies with the congressional province.” The Chief Justice further stated, with respect to un-ratified proposed Amendments that didn’t include time limits for ratification, “that the Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amendment had lost its vitality prior to the required ratifications.”

In other words, Congress has the sole Power to determine the time period, if any, in which an Amendment must be ratified, and to determine what is reasonable, in their sole and absolute judgment. The Supreme Court regarded this issue as political in nature, within the purview of Congress, and not subject to Court review or determination.

Extension of Time for the Ratification of an Amendment Proposed to the Constitution

On October 20, 1978, Congress passed, and President Jimmy Carter approved and signed a Joint Resolution extending the ratification period for the proposed “Equal Rights” Amendment to June 30, 1982. This constitutional Amendment was proposed by Congress on March 22, 1972 and included a seven-year time limit for ratification, ending on March 23, 1979. 

Being the only time that an Amendment ratification deadline has been extended, the Senate passed this Joint Resolution, on October 6, 1978, by a vote of 60 to 36, which followed passage by the House of Representatives on August 15, 1978, by a vote of 233 to 189. The passage of this Resolution was by less than a two-thirds vote in either body.

The validity of this extension was adjudicated in 1981 in the United States District Court for the District of Idaho case of Idaho v. Freeman. A case of first impression filed by the State of Idaho against Rear Admiral Rowland G. Freeman, III, Administrator of the General Services Administration of the United States, this case considered, among other issues, the constitutionality of the Joint Resolution extending the ratification period.

In the Court ruling, Judge Marion Jones Callister declared, “that Congress’ attempted extension of the time for the ratification” of the proposed “Equal Rights” Amendment “was null and void.” Congress has the sole and specific Power to propose Amendments to the Constitution and to select from two methods of ratification. This is specified in Article V of the Constitution which provision is all-inclusive with respect to amending the Constitution. As specified in Article V, a two-thirds or greater vote is required to propose an amendment to the Constitution, by each of the Senate and House of Representatives. Clearly, the passage of this time limit extension was by less than the two-thirds minimum vote specified to amendment the Constitution.

The opinion was appealed and the judgment was stayed on January 25, 1982. Then, before the appellate review was completed, the disputed extension had expired by its own terms on June 30, 1982. As such, on October 4, 1982, as suggested by the Administrator of General Services (the defendant), the District Court judgment was vacated by the Supreme Court and dismissed as being moot because the extended expiration date had passed.  Thus, this could still be an issue in the future.

Beginning in the next article, the Amendment ratification processes will be reviewed.  Discussions include State Governor’s involvement in State ratification, ratification of an Amendment by popular vote and State-mandated restrictions on its legislative power to ratify a constitutional Amendment.  The latter includes restrictions by State Constitutions such as requiring approval votes by a super-majority of the legislature, instead of by only a simple majority.   Discussions will also include State legislative rejection of an Amendment, and State rescission and nullification of a previous ratification of an Amendment.    

Posted: 03|15|11 at 1:00 pm. Filed under: 3. Amending the U.S. Constitution.
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