About Our Constitution, a Series
Article 8 – Ratification of Constitutional Amendments, Part 2
By David Robert Wood
April 15, 2011
As discussed in article 7, a State Legislature’s power to ratify a proposed Amendment to the Constitution may not be restricted or otherwise inhibited by State Statutes or State Constitutions. However, this view on the ratification power has developed over time, and there have been several proposed Amendments that have been questioned or attached with issued raised including the necessity of a State Governor’s approval, State ratification by popular vote (Referendum), requiring a supermajority vote of the Legislature and requirements that a majority or more of the Legislators be elected after an Amendment is proposed and before a Legislature considers it.
State Governor Involvement in Ratification of Amendments
Like the Federal Constitution, State Constitutions typically include provisions requiring the Governor, as the chief executive officer of a State, to approve or disapprove the Bills and Resolutions passed by the State Legislature in order for such actions to be effective. Also similar to the Federal Constitution, State Constitutions typically provide the legislative means whereby a Governor’s disapproval, or veto, of a Bill or Resolution may be overridden. For most States, if the Governor of a State vetoes a Bill or Resolution, such disapproval must be overridden by two-thirds, or other supermajority vote of the State Legislature in order for such Bill or Resolution to be effective.
However, this is not the situation with respect to a State Legislature’s ratification of a proposed Amendment, which issue was not addressed until 1911, over one-hundred and twenty years after the ratification of the Constitution.
On March 23, 1911, during the administration of Article of Amendment XVI on income taxes, as previously proposed by Congress on July 12, 1909, the Chief Clerk in the Department of State, William McNeir, requested legal advice from the Office of the Solicitor regarding the ratification of this proposed Amendment by the State of Washington. Mr. McNeir’s inquiry noted that the Governor of Washington did not approve the State of Washington’s ratification action, and that the Constitution of the State of Washington “provides that all acts of the Legislature shall be approved by the Governor.” The specific question was whether the State of Washington’s ratification of Article of Amendment XVI should be returned in order to obtain the approval of the Governor.
The response by the Office of the Solicitor was that the ratification by the State of Washington should not be returned for the Governor’s signature. In connection with this response, Preston D. Richards with the Office of the Solicitor, analyzed this issue and issued a “Memorandum on the Necessity for the Governor’s Approval of an Amendment to the Federal Constitution Approved by the Legislature of the State,” dated April 20, 1911.
In this memorandum, Mr. Richards pointed out that “the question whether the signature of the Governor is essential to an amendment to the Federal Constitution, which has been approved by the Legislature of the State, seems never to have been judically [sic] determined.” He further stated that “there seems to have been a great lack of uniformity in the actual practice by Governors in this respect.”
Mr. Richards further noted inconsistencies with respect to Governors approving State Legislature Resolutions ratifying proposed Amendments to the Constitution. For example, only fifteen of the thirty States indicated as ratifying Article of Amendment XV, as announced by Secretary of State Hamilton Fish on March 30, 1870, had been signed by the Governors of the respective States.
With respect to the State of Washington, Mr. Richards appropriately noted “that the State Constitution requires the approval of the Governor of the laws of the State only and that neither the resolution passed by the Legislature approving the Amendment to the Constitution of the United States nor the Amendment itself can be said to be a State law, and, therefore, the requirement of the Governor’s signature is not necessary.”
The opposite of the question regarding a State Governor’s approval of a State Legislature’s ratification of a proposed Amendment is a State Governor disapproving, or vetoing a Legislature’s ratification action.
The first legislative ratification of a proposed Amendment to be vetoed by a Governor was Article of Amendment XII, which resulted in the final ratification date of this Amendment often being incorrectly indicated. On June 15, 1804, by “An Act to ratify an article proposed in amendment to the Constitution of the United States,” the New Hampshire House of Representatives and Senate ratified Article of Amendment XII. On June 20, 1804, Governor John Taylor Gilman vetoed the Legislature’s ratifying Act following which, the Legislature failed to override the veto.
When Secretary of State James Madison announced the Final Ratification of Article of Amendment XII on September 25, 1804, New Hampshire was not included as a ratifying State, which was the thirteenth and final ratifying State,. Instead, the next ratifying State, Tennessee, was included and July 27, 1804, its ratification date, was inappropriately indicated as the final ratifying date. Because Tennessee’s ratification also resulted in the full and final ratification of Article of Amendment XII, the inappropriateness of the New Hampshire Governor’s veto was overlooked and not addressed until the twentieth century.
This question of the ineffectiveness of a Governor’s veto was addressed in 1913 when the final ratifications of Articles of Amendment XVI and XVII were being determined. Prior to the announcement of the ratification of each, the individual State ratification documentation was meticulously reviewed in the Secretary of State’s office, such detailed review not appearing to have been done before this time. Upon review, it was noted that the Arkansas Legislature had ratified Article of Amendment XVI on April 22, 1911 and that the Governor of Arkansas had vetoed this ratifying action on June 1, 1911.
In a memorandum to the Secretary of State, dated February 15, 1913, Preston D. Richards advised that the Arkansas Governor’s veto action “does not in any way invalidate the action of the legislature or nullify the effect of the resolution, as it is believed that the approval of the Governor is not necessary and that he has not the power of veto in such cases.” In a following memorandum dated February 20, 1913, Mr. Richards observed that “the Constitution provides that an amendment to the Constitution shall be ratified by the Legislatures of the States not by the law making body of the states,” the latter including the approval of the Governor.
Thereafter, on February 25, 1913, Secretary of State Philander C. Knox certified that Article of Amendment XVI “has become valid to all intents and purposes as a part of the Constitution of the United States of America.” In his announcement, Arkansas is appropriately included as a ratifying State. Further, there is no mention in the announcement of the veto by the Governor of Arkansas.
The opinion that State ratification action is a sole power of the State Legislatures was confirmed in the 1920 Supreme Court case of Hawke v. Smith. In the opinion, it was stated that a proposed Amendment to the Constitution “can only become effective by the ratification of the legislatures of three fourths of the states, or by conventions in a like number of states,” which ever method was selected by Congress. Further, that the meaning of the term ‘legislature’ in 1920 is the same as it was in 1788 when the Constitution was ratified, a “representative body which made the laws of the people.”
Circa 1950 to 1960, in an undated memorandum by Denys P. Myers, a constitutional historian and a legal specialist in international organization in the Department of State, and relative to Article of Amendment XII, Myers stated that the U.S. Government “recognizes the New Hampshire act of June 15, 1804, as a ratification of the 12th Amendment, and chronologically as the ratification which brought the Amendment into force.”
Thus, proposed Amendments to the Constitution are to be ratified by State legislative action, which is conclusive and not subject to the approval or disapproval by a State Governor, regardless of any State constitutional provisions or Statutes to the contrary.
Of ancillary interest relative to the approval by a State Governor is the ratification of Article of Amendment XXII by South Carolina. The South Carolina Legislature ratified Article of Amendment XXII on March 13, 1951, which date has been indicated as that State’s ratification date. However, in the State’s Joint Resolution ratifying the proposed Amendment, it was stated that “this resolution shall take effect upon its approval by the Governor.” It is does not appear that such approval and signature occurred.
Normally, the approval of the South Carolina Governor would be inappropriate. However, the required approval was not by State Statute or State Constitution, but rather a specific requirement of the South Carolina Legislature as included in its Joint Resolution passing the proposed Amendment.
Given this, it appears reasonably likely that this Amendment may not have been ratified by the South Carolina because it doesn’t appear that Governor approved or sign it. This is consistent with and supported by various Supreme Court decisions, where it has been recognized that the Power of ratification is vested solely in the Legislature, and subject to only their own requirements and rules for approval and ratification. The requirement of the Governor’s approbation was certainly a requirement of the Legislature. Notwithstanding the above, this potentially ineffective ratification did not impact the Final Ratification of Article of Amendment XXII as South Carolina’s ratification occurred after Final Ratification.
Ratification of Amendments by Popular Vote (Referendum)
Various States utilize “Referendums” in their State lawmaking process. A Referendum is the process of referring State legislative Acts, State constitutional Amendments, and other public issues, as may otherwise be defined, to a popular vote of the citizens. If a State uses Referendums, such provisions are often included in State Constitutions.
The Courts have generally recognized the use of the Referendum as a legitimate part of the legislative power in the States. Further, in response to claims that the Referendum is repugnant to Article IV, Section 4 of the Constitution, i.e., not in accord with a “Republican Form of Government,” the Courts have held that such an issue may only be addressed by Congress and is not justiciable by the Courts.
The U.S. Supreme Court legitimized the use and power of the Referendum in the 1916, case of Ohio ex rel. Davis v. Hildebrant. In this case, questioning the validity of a Referendum vote disapproving an act previously passed by the Ohio State Legislature and that was approved by the Governor, the Court upheld the use of the Referendum and observed that “so far as the state had the power to do it, the referendum constituted a part of the state Constitution and laws, and was contained within the legislative power” of the State.
In the 1919, State of Washington Supreme Court case of Washington ex rel. Mullen v. Howell, the use of the Referendum was also recognized and acknowledged as generally being within the legitimate power of the people. It was noted that the purpose and motivation for using the Referendum was because of perceived failings by, and doubts in, the State Legislatures. It was observed that “it is well known that the power of the referendum was asserted not because the people had a willful or perverse desire to exercise the legislative function directly, but because they had become impressed with a profound conviction that the Legislature had ceased to be responsive to the popular will.”
Broadly defining the term “Legislature” as being the legislative authority of a State, inclusive of the Referendum, the Washington Supreme Court held that it was appropriate that the proposed Amendment to the Constitution, ratified as Article of Amendment XVIII, be submitted to approval by Referendum as provided under the Constitution and laws of the State.
However, such view of using the Referendum for the ratification of Amendments proposed to the Constitution have since been overruled by subsequent Supreme Court cases, though not necessarily dispelling its use for other lawful State purposes. The Supreme Court has consistently ruled that State Referendums, whether required by a State’s Constitution or otherwise, may be used for specified lawful purposes but are not appropriate for the ratification of proposed Amendments to the Constitution of the United States.
In the 1920 U.S. Supreme Court case of Hawke v. Smith, also concerning the ratification of Article of Amendment XVIII, the Court ruled that the Referendum is not an appropriate means to ratify a proposed Amendment to the Constitution. Justice William Rufus Day observed that Article V of the Constitution “is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted to Congress 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 Court also noted that the action of ratifying an Amendment to the Constitution was distinguishable from other normal and recurring law making actions of State Legislatures as otherwise governed by State Constitutions and Statutes. “The power to legislate in the enactment of the laws of a state is derived from the people of the state. But the power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution.” In other words, the State ratification of a proposed Amendment to the Constitution is an extraordinary action and not a legislative act within the ordinary definition of the term.
This holding was affirmed by the 1920, Supreme Court in Rhode Island v. Palmer (the National Prohibition Cases) where it was ruled that Referendum provisions of State Constitutions and Statutes are not applicable to the State legislative ratification considerations of proposed Amendments to the Constitution. In the majority opinion, Justice Willis Van Devanter concluded, “the referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it.”
As such, the use of the Referendum, when required by State Constitution or State Statute, is most certainly inappropriate for the ratification of a proposed Amendment to the Constitution of the United States. However, and as determined in the 1978 ruling by Justice William H. Rehnquist in the Supreme Court case of Kimble v. Swackhamer, a Referendum on a proposed Amendment may be used in the form of an “advisory” vote, which may precede and is otherwise non-binding on the State Legislature as to its ratification of a proposed Amendment.
Supermajority Voting as a Ratification Requirement
Over the years, a number of States have had State constitutional and statutory requirements, specifying a supermajority approval or vote of the State Legislature in the passage of some or all of the legislative bills, resolutions and laws, and to override gubernatorial disapprovals or vetoes. Further, such supermajority requirements may be of the members present, or of the entire membership of such legislative body. A simple majority is more than fifty percent, whereas a supermajority requires a minimum approval greater than fifty percent such as three-fifths (60%), two-thirds (66 2/3%) and three-fourths (75%), the latter being uncommon. The two-thirds (66 2/3%), supermajority voting requirement is typically used by many States for the Legislature’s override of a Governor’s veto. And, the three-fifths (60%) supermajority voting requirements have been used for the passage of State laws and legislation.
The Courts have consistently held that supermajority voting requirements of State Constitutions or State Statutes, imposed on the Legislatures in ratifying proposed Amendments to the Constitution to be repugnant to the Constitution and to be unconstitutional. However, supermajority voting approval to ratify an Amendment to the Constitution is appropriate if and only such requirements are by specific rules of a Legislature.
In Dyer v. Blair, a 1975 case in the United States District Court of the Northern District of Illinois, the Court found, notwithstanding other issues, that the supermajority voting requirements of the Illinois Legislature, imposed by self-adopted rules, were relevant to ratifying proposed Amendments to the Constitution. Further, failing such supermajority vote approval, a proposed constitutional Amendment was not ratified by such a State.
This is consistent with other Court rulings in the recognition of the Legislature as being the body of representatives so elected to legislate and pass laws, generally a literal definition. Further that such Legislatures are empowered to determine their own ratification approval requirements, whether it be by a simple majority of the members present, a majority of the entire membership of the Legislature (also known as a constitutional majority), or by a supermajority of either the members present or the total legislature membership.
Legislature Election Requirements as a Precedent to Ratification
Several State Constitutions have included provisions requiring that a majority of the members of their Legislature must be elected or re-elected after the proposal of a constitutional Amendment and before the State Legislature considers its ratification. The constitutionality of such provisions was an issue in the 1973, United States District Court for the Middle District of Florida case of Trombetta v. Florida. In the opinion and order of the Court, the Legislature membership re-election provision in the Florida Constitution, as a precedent to their ratification of a proposed Amendment to the Constitution, was held to be unconstitutional.
The Court observed, in connection with the 1922, Supreme Court opinion in Leser v. Garnett, and as an extension to the decision in the 1920, case of Hawke v. Smith, that “the function of a state Legislature in ratifying a proposed amendment to the federal Constitution…is a Federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.”
This was also an issue in a 1975 case in the United States District Court for the Northern District of Illinois, Dyer v. Blair, which involved, among other issues, the Illinois State Constitution restrictions on the Legislature for any action ratifying an Amendment to the Constitution. Among the several restrictions was a provision requiring that a majority of the members of the Illinois General Assembly must be elected after the proposal of a constitutional Amendment, and prior to any ratification consideration by such General Assembly.
The three-judge Court held, consistent with Trombetta v. Florida, that such restrictive provision in the Illinois Constitution was repugnant to Article V of the Constitution and was therefore unconstitutional. The Court stated that “the Supreme Court has held that a state may not inhibit its legislature’s federal power to ratify a proposed amendment to the United States Constitution by requiring approval at a popular referendum” and “it seems equally clear that a state constitution may not require that a new legislature be elected before the proposal may be considered.”
The following article 9 is “Part 3” of the discussions about the State ratification of proposed, constitutional Amendments and will review the power of a State Legislature to reject a proposed Amendment, to ratify a proposed Amendment after having before rejecting it, and in rescinding, or voiding its prior ratification of a proposed Amendment.