About Our Constitution, a Series

Article 11 – Administration of the Ratification Process, Part 2
By David Robert Wood
June 1, 2011

In the preceding article, Part 1, commenced the discussion on the ratification administrative process, which begins upon the proposal of a constitutional Amendment by Congress. This included the history of the Amendment Administrators and the underlying Congressional Laws relative to ratification administration.  Also discussed are the practices and history in distributing proposed Amendments to the States.  This Part 2 continues the discussion and includes the receiving, tracking and reviewing of State ratifications by the Amendment Administrator.  Part 3 in the next article, completes the discussion, including the determination of the acceptability of State ratifications, when Final Ratification occurs, and the proclamation and certification of Final Ratification. 

Acting as a Depository for, and Monitoring and Compiling State Ratifications

Following the transmittal of a proposed Amendment to the States for ratification consideration, the Amendment Administrator monitors, tracks and compiles the State ratifications they receive. Upon the receipt of original State ratification documentation, the Amendment Administrator, in accordance with more recent practices, reviews the documentation for completeness and appropriate signatures. Such documentation is logged and retained pending Final Ratification by the three-fourths minimum number of States. As necessary, and again in accordance with more recent practices, follow-up will occur with the States, which includes inquiring about ratification actions for non-reporting States, obtaining additional State ratification information as may be necessary to properly reflect the ratification dates, and for notifying States of substantive or other errors in their Legislative Resolutions purportedly ratifying a proposed Amendment.

As discussed in the previously article, the administrative functions of monitoring, compiling and tracking State ratification actions has not been defined or directly assigned by Congress. However, such functions can certainly be indirectly and implicitly construed from Section 106b in Title 1 of the United States Code, and in the comparable predecessor provisions going back to the April 20, 1818, “Act to provide for the publication of the laws of the United States, and for other purposes.”

The administrative process, including the monitoring and compiling of State ratification actions and serving as the depository for such actions, first began on September 28, 1787, when the Confederation Congress, under the Articles of Confederation and perpetual Union, unanimously resolved that the proposed “Constitution of the United States” be submitted to States for ratification consideration.

Under the Articles of Confederation, the Confederation Congress was a unicameral body in a unitary government, combining both legislative and extremely limited executive powers. There was no separate Executive branch. The general administrative duties and responsibilities necessary for the operation of this Congress, were vested in the “Secretary of Congress.” With respect to the State ratifications of the Constitution, Charles Thomson, the Secretary of the Congress since its beginning on September 5, 1774, implemented the “Record Book,” which has also been subsequently titled as “Ratifications of the Constitution.”

The “Record Book” consisted of a register of the Constitution and subsequent ratifications by the States, among other documents, and was subsequently transferred to the Secretary of State in the Department of State, which was created by the new Constitution. Following the ratification of the Constitution, comparable records have been compiled and maintained, to varying degrees of completeness, by the Amendment Administrators for each of the thirty-three Amendments proposed by Congress.

With respect to the first, twelve proposed Amendments, “Article the first” to “Article the twelfth,” Final Ratification for ten of them (the “Bill of Rights”) occurred on December 15, 1791, which was announced by Secretary of State Thomas Jefferson on March 1, 1792. This two and one-half month time lag between Final Ratification and the announcement was likely due to inadequate communications between the individual States and the President and Secretary of State. This is understandable given the vast size of the country, the concentrated efforts in starting the new government, and the limited communication and transportation systems of the time.

After the ratification of Articles of Amendment I to X, and until approximately 1913, with some exceptions, the Department of State, as the Amendment Administrator, performed minimal administrative tasks relative to proposed Amendments. The procedures performed primarily included acting only as a depository for the State ratifications, determining that Final Ratification appeared to have occurred and announcing the same. The extent of the procedures used to determine the accuracy and validity of State ratification actions basically consisted of verifying that the documents received appeared proper with the signature of a State officer. The correctness of the language in the State ratification actions, and the appropriate date to be used for each State’s ratification were not considered. Further, there was minimal follow-up with non-reporting States.

A good example of the lack of attention by the Amendment Administrator in monitoring the State ratification actions is Article of Amendment XI. It was proposed on March 4, 1794, transmitted to the fifteen States by Secretary of State Edmund Randolph on March 17, 1794 and fully ratified by North Carolina on February 7, 1795. However, it was not recognized and proclaimed as ratified until January 8, 1798, almost three years after-the-fact.

On March 2, 1797, and lacking individual State ratification documentation on Article of Amendment XI, a Congressional Resolution to obtain ratification information from certain individual States was approved. This Resolution requested the President of the United States, John Adams, “to adopt some speedy and effectual means of obtaining information from the states of Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, Kentucky, Tennessee and South Carolina, whether they had ratified the Amendment proposed by Congress.” And, unknown to the Secretary of State and the Federal Government on this date, four of these States had already ratified the proposed Amendment, including Connecticut on May 8, 1794, Virginia on November 18, 1794, Kentucky on December 7, 1794, and Maryland on December 26, 1794.

Follow-up action by the President and the Secretary of State was slow. Not until August 2, 1797, did Secretary of State Timothy Pickering comply with the congressional Resolution and request ratification information from the listed States. Further, not knowing that such requests had been made, President John Adams requested, in a letter dated October 12, 1797, that such inquiries be made by Secretary of State Pickering. For whatever reasons, the Secretary of State had apparently not kept the President apprised of his efforts. On October 16, 1797, Secretary of State Pickering followed-up with Tennessee, admitted to the Union as sixteenth State on June 1, 1796, by sending the proposed Amendment to the Governor, having not been sent to that State before.

Finally, on December 28, 1797, Secretary of State Pickering notified President Adams that he had received State ratification information and documentation from the States of Connecticut, Maryland and Virginia. Further, that the States of New Jersey and Pennsylvania had not ratified the proposed Amendment and that South Carolina, in a letter dated October 10, 1797, had not acted upon and was still considering the proposed Amendment. The Secretary of State was unaware of South Carolina’s relatively immediate subsequent ratification on December 4, 1797. Responses had also not been received from Kentucky, which had ratified the proposed Amendment three years earlier, or from Tennessee, such State not then having ratified the proposed Amendment.

In a December 30, 1797, message to Congress, President Adams reported that “measures have been taken, and information and evidences obtained” relative to the ratifications by those States indicated in the March 2, 1797, Resolution as included in the Secretary of State’s memorandum of December 28, 1797. On January 8, 1798, following the receipt of ratification information from Kentucky on or about January 5, 1798, President Adams announced the Final Ratification of Article of Amendment XI, which Final Ratification was almost three years earlier.

The next proposed Amendment to be ratified was Article of Amendment XII. Proposed on December 9, 1803, and anxious about its ratification, Congress passed an Act, approved into law on March 26, 1804, that specified certain actions or procedures be performed by the Secretary of State. In accordance with this Act and upon Final Ratification of Article of Amendment XII, “the Secretary of State shall forthwith cause a notification thereof to be made to the executive of every state, and shall also cause the same to be published, in at least one of the newspapers printed in each state, in which the laws of the United States are annually published.”

The Final Ratification of Article of Amendment XII occurred upon the ratification by New Hampshire on June 15, 1804, the thirteenth ratifying State. However, when Secretary of State James Madison announced Final Ratification on September 25, 1804, his listing of ratifying States excluded New Hampshire but included Tennessee. Tennessee had ratified the proposed Amendment after New Hampshire on July 27, 1804, which date has been incorrectly reported, from time-to-time, as the Final Ratification date.

Unlike prior proposed Amendments, ratification of Article of Amendment XII occurred within a relatively short timeframe, only six months after being proposed by Congress. The initial failure to appropriately recognize New Hampshire’s ratification was likely due to New Hampshire’s untimely notification of its ratification action to the Secretary of State. This failure to recognize New Hampshire’s ratification was also due to the inappropriate, tacit recognition of the Governor’s June 20, 1804, veto of the New Hampshire Legislature’s ratification action as possibly being valid. The appropriate ratification of Article of Amendment XII, by New Hampshire, was not generally reported and recognized as effective until approximately 1913.

Following Article of Amendment XII, the next proposed Amendment, on “Titles of Nobility,” was proposed by Congress on May 1, 1810, transmitted to the States on January 15, 1811, and not heretofore ratified. However, following the War of 1812, there was a mistaken belief that this proposed Amendment had been ratified and it was included as ratified in various publications of the time. Seven years after proposal and on December 31, 1817, the House of Representatives, by simple Resolution, requested that the President of the United States inform the House as to the ratification status. In response by Secretary of State James Monroe on February 4, 1818, it was determined that an insufficient number of States had effectuated ratification.

Overall, Congress was not satisfied with the State Department’s efforts in monitoring and compiling State ratification information, and on April 20, 1818, following the response by Secretary of State Monroe, it adopted “An Act to provide for the publication of the laws of the United States, and for other purposes.” And, as previously discussed, Section 2 of this Act provided for the announcement and certification of the Final Ratification of a proposed Amendment, but only to the extent that the Amendment Administrator receives ratification information from a State. There were no requirements on the Amendment Administrator to make inquiries of, or follow-up with the States.

Until approximately 1913, there were still only minimal efforts expended by the Amendment Administrator in reviewing and following-up on State ratification activities for proposed Amendments. In general, the Department of State used a wait and see approach, not inquiring of the States except to the extent that Congress may require, which was done with respect to Articles of Amendment XIV (on four occasions) and XV, these two proposed Amendments being of significant importance to Congress.

Nonetheless, with respect to Articles of Amendment XIII, XIV and XV, and notwithstanding State ratification irregularities overlooked by the Secretary of State as discussed elsewhere, the proclamations of ratification occurred within one month following the dates then thought to be the Final Ratification dates of each.

Following Article of Amendment XV, ratified in 1870, it was almost forty years before the next Amendment was proposed in 1909, which was ratified as Article of Amendment XVI on February 3, 1913. In early 1913, in contemplation of the Final Ratification of this proposed Amendment and the announcement of the same, the Department of State undertook a detailed review and analysis of the State ratification actions, this not being done before relative to the prior proposed Amendments. As discussed in more detail later, numerous irregularities were revealed regarding the wording of the State ratification actions and the inadequacy of State ratification date information.

Final Ratification of Article of Amendment XVI was proclaimed on February 25, 1913, without addressing the specific concerns and errors. The rationale was appropriately justified on the grounds that the noted wording errors were non-substantive and that the impact of the State ratification date errors was inconsequential to the overall ratification of the proposed Amendment. Such announcement and proclamation appears to have been expedited due to political considerations.

Within two months after the announced Final Ratification of Article of Amendment XVI, the Department of State undertook a review and analysis of the State ratification actions on the proposed Amendment to be ratified as Article of Amendment XVII in 1913. As with Article of Amendment XVI, numerous errors were revealed regarding the wording of the State ratification actions, and inadequate State ratification date information was also noted. With the exception of Wisconsin, the errors and deficiencies were appropriately considered as immaterial and non-substantive, thereby resulting in the proclamation of Final Ratification on May 31, 1913.

Beginning with Article of Amendment XVIII, proposed on December 18, 1917, and for all proposed Amendments thereafter, it appears that the Amendment Administrators were more proactive in reviewing State ratification information, noting incomplete or improper State ratification documentation, and in communicating with the States to determine a State’s ratification status at a given time. This detailed approach in monitoring and reviewing State ratifications was likely a result of the revelations during the recent administrative reviews of Articles of Amendment XVI and XVII.

The next article is the third and last of the discussions on the ratification administrative process. Included is an additional discussion on reviewing the completeness and adequacy of State ratification information, and in determining, proclaiming and certifying the Final Ratification.

Posted: 06|1|11 at 1:00 pm. Filed under: 3. Amending the U.S. Constitution.
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