About Our Constitution, a Series
Article 7 – Ratification of Constitutional Amendments, Part 1
By David Robert Wood
April 1, 2011
As previously discussed, the authority to amend the Constitution, and the basic amendment process, is specified in Article V of the Constitution. To date, Congress has only proposed thirty-three Amendments and twenty-seven of these have been fully ratified by three-fourths or more of the States.
Article V provides for two “Modes” or methods for the ratification of a proposed Amendment to the Constitution. The first is by the State Legislatures, which method has been specified for thirty-two of the proposed Amendments. The second method is by “Conventions” in the States, which was specified for only one proposed Amendment, Article of Amendment XXI, which repealed Article of Amendment XVIII.
Congress has the exclusive power to determine the method of ratifying a constitutional Amendment, whether by State Legislatures or by State Conventions. Further, any such method selected is not subject to court review. In the 1920 Supreme Court case of Hawke v. Smith, Justice William Rufus Day, speaking for the Court, stated that “the 5th article [of the Constitution] is a grant of authority by the people in Congress. The determination of the method of ratification is the exercise of a national power, specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods: by action of the legislatures of three fourths of the states, or conventions in a like number of states.”
The Congressional power to determine the method of ratification was again questioned in the 1931 Supreme Court case of United States v. Sprague. The appellees in this case, William H. Sprague and William J. Howey, imaginatively contended that there are two different kinds of Amendments, those that merely modify or change the “character of federal means or machinery” and those that impact the “liberty” of the citizens.
They contended that it was the intention of the framers of the Constitution that the former, modifying the character of federal means or machinery, was appropriate for ratification by the State Legislatures. The latter, those proposed Amendments impacting the liberties of citizens can only be ratified by State Conventions. The appellees claimed that the State Legislatures lacked the power to ratify an Amendment impacting citizens’ liberty, and that there is doubt as to whether the State Legislatures do truly represent the People.
In delivering the opinion of the Court, Justice Owen Josephus Roberts appropriately dispatched such contentions and arguments. He noted that the Supreme Court has repeatedly and consistently declared that the selection of the method or “Mode” for ratification of a proposed Amendment to the Constitution “lies in the sole discretion of Congress.” He observed “that Article 5 [of the Constitution] is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary [context] as distinguished from technical meaning; where the intention [of the Constitution] is clear there is no room for construction and no excuse for interpolation or addition.”
Ratification by Conventions in the States
The one and only proposed Amendment specified by Congress to be ratified by Conventions in the States was Article of Amendment XXI. This Article of Amendment repealed Article of Amendment XVIII, which previously prohibited the manufacture, sale and transportation of intoxicating liquors in the United States. This method of ratification was selected by Congress because of the volatile political nature of repealing alcohol prohibition. It was felt that state legislators might be pressured to reject ratification, even though many personally supported repeal, out of fear they would be subjected to electoral backlash when running for re-election.
State Legislature Ratification Power
The Amendment ratification power is a Federal power and is solely derived from the Constitution. When a State Legislature ratifies a proposed Amendment, it is acting, quoad hoc, as a Federal Agency, which overrules State Constitutions and Statutes. In the 1922 Supreme Court case of Leser v. Garnett, Justice Louis Dembitz Brandeis, in delivering the opinion of the Court, observed that “the function of a state legislature in ratifying a proposed Amendment to the Federal Constitution, like the function of Congress in proposing the Amendment, is a Federal function, derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.”
In 1975, these views concerning the source and range of a State Legislature’s ratification power were further expounded upon in Dyer v. Blair, a case in the United States District Court for the Middle District of Florida. Writing the decision for the three-judge panel, Judge John Paul Stevens, later appointed to the Supreme Court on December 19, 1975, stated “the power of a state legislature to ratify an amendment to the federal Constitution is derived from the instrument [Constitution]. And further, “by virtue of the supremacy clause in article VI [of the Constitution], it is clear that the legislature’s ratifying function may not be abridged by a state.”
The term “Legislature,” as used in Article V and elsewhere in the Constitution, is not defined in the Constitution, and notwithstanding the above, has been the subject of some controversy. However, the Courts have consistently defined a “Legislature” to be that State body or assemblage, e.g. a unicameral General Assembly or a bicameral Senate and House of Representatives, which has the general power to enact the laws of the State. This is literally a physical definition as compared to a conceptual definition. The conceptual definition of “Legislature” encompasses the entire lawmaking process, including gubernatorial approbation, or approval by Referendum, as may be explicitly established and included as part of a given State’s law making powers under its State Constitution.
In the 1920, Supreme Court Case of Hawke v. Smith, Justice William Rufus Day addressed the meaning of “Legislature.” He noted that the term “Legislature” “was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation. A legislature was then the representative body which made the laws of the people. The term is often used in the Constitution with this evident meaning.” He further stated, “There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument [the Constitution] referred to the action of the legislatures of the states.”
Many State legislative processes for ratifying a proposed Amendment to the Constitution are very similar to the Congressional process in proposing an Amendment. A State Legislature may approve, reject or not act upon a proposed constitutional Amendment. Ratification occurs when the State Legislature approves the proposed Amendment by a definitive vote. The specific form used by a State Legislature in ratifying a proposed Amendment, whether it be a “Bill,” “Resolution,” “Concurrent Resolution” or “Joint Resolution,” is of no substantive consequence.
Unlike the proposal of an Amendment, requiring a two-thirds approval vote by each house of Congress, Article V of the Constitution does not specify any voting requirements for State Legislatures to effectuate ratification. It has generally been recognized that the normal State constitutional requirements, relative to a Legislature’s general lawmaking power, are applicable for the ratification of a proposed Amendment. Typical of these is approval by a simple majority of the members present, given a quorum. However, as observed by Judge John Paul Stevens in Dyer v. Blair, “several states have actually adopted a wide variety of ratification requirements [which] demonstrates that no one voting percentage or procedure is manifestly preferable to all others.”
Such variety was further illuminated by a survey referenced in Dyer v. Blair. It was reported “that 24 states require a majority of the elected representatives (a constitutional majority); 17 states require a majority of those present and voting (a simple majority); 3 states require a majority of those elected to the state senate and two-thirds of those elected to the state house of representatives; 2 states require two-fifths of the members elected and a majority of those voting; Louisiana requires a majority of those elected to the state senate and a majority of those present and voting in the state house; Tennessee requires a majority of the authorized membership of each house notwithstanding the possible existence of vacancies; [and] Idaho requires two-thirds of those elected.”
Although Article V is silent as to how a State Legislature may ratify a proposed Amendment, these varying methods and practices have been controversial. Further, the Court’s have been somewhat inconsistent with respect to its ruling, or not ruling, on a given controversy. In some instances, the Supreme Court has declined to rule, indicating that the process of amending the Constitution is a political question and not subject to justiciability by the courts; such issues are solely subject to Congress’s determination. In other instances, the Supreme Court has held that certain controversies regarding the ratification of Amendments to the Constitution are justiciable and thereafter took cognizance of the cases.
Notwithstanding the above, unusual State Constitution or Statutory restrictions specifically addressing the ratification of Amendments have generally been held to be unconstitutional. The power to ratify an Amendment to the Constitution of the United States is vested solely in each State Legislature. The means of effectuating ratification and the determination of voting requirements for ratification are also subject to the discretion of each Legislature. And, such ratifying power of a State Legislature is not subject to restrictions or limitations that might otherwise be imposed by a State Statute or State Constitution. Only a State Legislature, by its own, actions and rules, may specify and require additional or extraordinary Amendment ratification requirements.
This was also addressed in Dyer v. Blair. Writing the decision for the three-judge panel, Judge Stevens, in reference to the lack of specific State ratification procedures in the text of the Constitution, commented “We think the omission [of detailed ratification procedures] more reasonably indicates that the framers [of the Constitution] intended to treat the determination of the vote required to pass a ratifying resolution [in a State Legislature] as an aspect of the process that each state legislature… may specify for itself.”
As stated above, it has been determinatively recognized that the legislative ratification power is vested in the State Legislature and that such power may not be inhibited or constrained by either State Statute or provisions in a State Constitution. However, this general consensus has been a result of cumulative Court decisions and evolving political thought. The ratification of several proposed Amendments have been questioned and attacked with the issues raised including the necessity of a State Governor’s approval, State ratification by popular vote (Referendum), requiring a super-majority vote of the Legislature and requirements that a majority or more of the Legislators be elected after an Amendment is proposed and before they consider it. These will be discussed in more detail in the articles to follow.