About Our Constitution, a Series

Article 12 – Administration of the Ratification Process, Part 3
By David Robert Wood
June 15, 2011

This is the third and last of the discussions on the ratification administrative process. In the preceding two articles, Parts 1 and 2, were discussed the basics of the administrative process, the history of the Amendment Administrators and the underlying Congressional Laws relative to ratification administration.  Also discussed were the practices and history in distributing proposed Amendments to the States and the Amendment Administrator’s receipt, tracking and reviewing of State ratifications.

This Part 3 completes the discussion, and includes determining the completeness and acceptability of State ratifications, when Final Ratification has occurred, and the proclamation and certification of Final Ratification.

Determining the Acceptability of State Ratifications and the Final Ratification of a Proposed Amendment

In order for a proposed Amendment to become a part of the Constitution of the United States, it must be ratified by three-fourths of the States, that presently being thirty-eight out of fifty states. Typically, upon a State Legislature’s ratification of a proposed Amendment to the Constitution, the ratifying Resolution is formalized and executed by legislative officers (enrolled), and then forwarded to the State’s Secretary of State. However, through approximately 1911, many of these State-ratifying Resolutions were often sent to the State Governor, before going to the State’s Secretary of State, under the mistaken belief that gubernatorial approval was appropriate.

Upon receipt, the State’s Secretary of State validates and processes the enrolled Resolution, which includes the preparation of additional supporting documentation, such as a certification of validity. The State’s Secretary of State or the Governor then sends written notification to the Amendment Administrator (the Department of State from 1789 to 1950, the General Services Administration from 1950 to 1985 and the National Archives and Records Administration starting in 1985), which included ratification documentation as may be determined by the State’s Secretary of State or the Governor.

The State ratifying documentation provided to the Amendment Administrator varied from State to State. This was partially due to a lack of definitive standards, by Congress, that might otherwise result in conformity. Each State provides ratification documentation that was in accordance with such State’s governmental practices and procedures. This often included, although not always, an image of the State’s enrolled ratifying Resolution, a certificate of validity executed by the State’s Secretary of State, and a transmittal letter to the Amendment Administrator.

Because of the varying forms and completeness of each State’s documentation, ratification information relative to the proposed Amendment was often incomplete or lacking. This missing information often included specific ratification date documentation, i.e., the date of passage by the State Legislature, as further discussed in the next article.

As previously discussed, the administrative procedures performed by the Amendment Administrator, relative to determining whether and when Final Ratification of a proposed Amendment had occurred, were minimal and primarily encompassed simple, clerical duties. And, there has been, and is, very little federal regulatory procedural guidance.

Section 106b in Title 1 of the United States Code, originating from Section 2 of “An Act to provide for the publication of the laws of the United States, and for other purposes,” adopted on April 20, 1818, provides minimal instruction relative to determining the Final Ratification of a proposed Amendment. In essence, this law only requires that the Amendment Administrator announce that a proposed Amendment has been ratified, and that it is a “valid” part of the Constitution. There are no requirements that the Amendment Administrator seek State ratification information from non-reporting States. Further, there are no requirements that the Amendment Administrator review and consider the adequacy and completeness of the individual State ratification documents.

As a result, there was minimal consideration by the Amendment Administrator in considering the completeness and adequacy of the individual State ratifications; that is until approximately 1913. State ratification documents, not being carefully read, were subsequently found to be inconsistent with, and erroneous to the text of the Amendments as proposed by Congress. Likewise through 1913, as further discussed in the next article, the State ratification date information was often incomplete and incorrect.

In 1913, the Amendment Administrator’s attention to detail significantly improved. This was largely because of the revelations uncovered during the administrative reviews of Articles of Amendment XVI and XVII. It appears that the Amendment Administrators had become more proactive in reviewing State ratification information and in communicating with the States to determine a State’s ratification status or to address incomplete or improper State ratification documentation.

The adequacy and substantive correctness of the individual State ratification actions has been specifically determined, retroactively as to Articles of Amendment XIV and XV, and generally prospectively as to Article of Amendment XVI and those Amendments proposed thereafter. With respect to Articles of Amendment I to XIII, there has been a retroactive review of the State ratification dates, resulting in numerous corrections. However, it does not appear that a detailed review of the States’ ratification documents has been undertaken, which would entail comparing the text in each State action to the text in the Amendments as proposed by Congress. If done, the results could be interesting.

Proclamation and Certification of Final Ratification

The duty to announce and proclaim the Final Ratification of a proposed Amendment was not formally recognized until April 20, 1818, by the adoption of Section 2 of “An Act to provide for the publication of the laws of the United States, and for other purposes.” The substance of this 1818 Act is included in present day Section 106b in Title 1 of the United States Code, which provides that “Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.”

This established an affirmative duty, upon the Amendment Administrator, to proclaim the Final Ratification of a proposed Amendment to the Constitution, and certify that it has become effective, although without indicating the effective date. It did not and does not, as previously discussed, require the Amendment Administrator to inquire about or pursue non-responding States, or to otherwise consider the completeness and accuracy of the State ratification information. Further, there is no specific requirement, although it is requested, that the States report their State ratification actions to the Amendment Administrator. In addition, there is no definition of “official notice,” which appears to have included verbal notice by a State.

Prior to the enactment of the 1818 Act, Articles of Amendment I to X (together), XI and XII were each ratified and announced as such. The announcement of the ratification of Articles of Amendment I to X, to be known as the “Bill of Rights,” was on March 1, 1792 by a simple letter to the State Governors by Secretary of State Thomas Jefferson. This letter was a typical government business letter and the ratification of the “Bill of Rights” was given no more prominence than other items in the letter. This lack of specific recognition of the importance of the ratification was likely due to a general assumption that such proposed Amendments had previously been ratified and in-force, thus imparting no significances to, or accolades on such information. As a matter of fact, Final Ratification played third fiddle to “fishing” and the “post office”:

                                     To the Governors of the several States. 
                                                       Philadelphia March 1, 1792.                                   

Sir

I have the honor to send you herein enclosed, two copies duly authenticated, of an Act concerning certain fisheries of the United States, and for the regulation and government of the fishermen employed therein; also of an Act to establish the post office and post roads within the United States, also the ratifications, by three fourths of the Legislatures of the several States, of certain articles in addition to and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures, and of being with sentiments of the most perfect respect, your Excellency’s etc.

                                    Thomas Jefferson

It appears that that there were no other formal announcements, per se, proclaiming the ratification of the “Bill of Rights,” and it likewise does not appear that there was any specific recognition of Final Ratification by the Congress. Again, such lack of formal recognition of ratification, given the significant general support of such proposed Amendments, was likely due to long-held confidence that ratification was a forgone conclusion and that it had already occurred.

With respect to the announcement of the Final Ratification of Article of Amendment XI, it took almost three years after ratification to realize that ratification had occurred, following which an announcement was made to Congress on January 8, 1798, in a written message by President John Adams.

As to Article of Amendment XII, Congress, anticipating Final Ratification, passed an Act, which was approved on March 26, 1804, and that specified certain actions or procedures be performed by the Secretary of State. Specifically, “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.”

On September 24, 1804, Secretary of State Madison advised the State Governors, by letter, of the Final Ratification of Article of Amendment XII. This letter, referencing the provisions in the March 26, 1804, Act, notified the Governors that Article of Amendment XII “has been ratified by the Legislatures of three fourths of the several States,” and it listed the known ratifying States.

Secretary of State James Madison also announced Final Ratification on September 25, 1804, in the form of a “Public Notice,” which also included the known ratifying States. In such proclamation, Tennessee, ratifying on July 27, 1804, is included as a ratifying state and New Hampshire is excluded. The exclusion of New Hampshire, which ratified the proposed Amendment before Tennessee, is partially due to the inadvertent consideration that the New Hampshire Governor’s veto was effective. It was subsequently determined that the Governor’s veto was inappropriate and ineffective.

Beginning with the ratification of the next proposed Amendment, Article of Amendment XIII ratified on June 30, 1865, the Final Ratification announcements were further formalized in accordance with the provisions of the Act of Congress on April 20, 1818, as previously discussed. By public announcement or proclamation, referring to the previous mentioned statutory requirement and listing known ratifying States, Secretary of State William H. Seward certified “that the amendment aforesaid [Article of Amendment XIII] has become valid, to all intent and purposes, as a part of the Constitution of the United States.”

With respect to the Final Ratification of Article of Amendment XIV in 1868, and as a result of confusion by the rescissions of prior ratification actions of two States, there were two Secretary of State’ announcements and proclamations of ratification, the first on July 20, 1868, and the second on July 28, 1868. Both, as with Article of Amendment XIII, acknowledged and referred to the statutory proclamation requirements in the April 20, 1818, Act of Congress.

However, in the first proclamation, Secretary of State William H. Seward observed, with reference to the two State rescissions that it is “a matter of doubt and uncertainty whether such resolutions [of rescission] are not irregular, invalid and therefore ineffectual for the withdrawing” of each States’ prior ratifications. In his certification of ratification, Seward conditionally certified the final ratification of Article of Amendment XIV, to wit:

I, William H. Seward, Secretary of State of the United States…do hereby certify that, if the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid amendment are to be decreed as remaining of full force and effect, notwithstanding the subsequent resolutions…which purport to withdraw the consent of said States from such ratification, then the aforesaid amendment has been ratified… and so has become valid.

On the following day, July 21, 1868, Congress, by Concurrent Resolution, was more definitive then the Secretary of State, resolving, “That said fourteenth article is hereby declared to be a part of the Constitution of the United States.” In such Concurrent Resolution, the same twenty-nine States listed in the Secretary of State’s proclamation on the day before are included, including New Jersey and Ohio and without reference to their rescissions. In addition, such Concurrent Resolution also included a Congressional declaration, declaring that the ratification of Article of Amendment XIV “shall be duly promulgated as such by the Secretary of State.

In the second proclamation, on July 28, 1868, in compliance with the aforementioned Concurrent Resolution, Secretary of State Seward, somewhat conditionally, announced and proclaimed the Final Ratification of Article of Amendment XIV. He certified “that the said proposed amendment [Article of Amendment XIV] has been adopted, in the manner hereinbefore mentioned, by the States specified in the said concurrent resolution” of July 21, 1868, and by the State of Georgia, having received ratification notification by Georgia not otherwise known on July 21, 1868.

The conditioning of the certification of validity was the reference phrase “in the manner hereinbefore mentioned.” The reference is to the detailed listing in the proclamation of all known State ratification actions on Article of Amendment XIV, including the dates of ratifications, rejections and rescissions. Such detailed State ratification information has not since, or before, been included in a proclamation of ratification.

With respect to the announcement of Final Ratification of Article of Amendment XV, the proclamation by Secretary of State Hamilton Fish was virtually identical to that used for the proclamation of ratification of Article of Amendment XIII. However, as with the ratification of Article of Amendment XIV, New York had rescinded its prior ratification action. Unlike the proclamations of ratification for Article of Amendment XIV, the proclamation of ratification for Article of Amendment XV includes this information for apparent informational purposes only, and it did not impact his proclamation and he did “certify that the Amendment aforesaid [Article of Amendment XV] has become valid to all intents and purposes as part of the Constitution of the United States.”

Thereafter, all of the announcements and proclamations of Final Ratification of Amendments to the Constitution, being Articles of Amendment XVI to XXVII, have been virtually identical, referring to the statutory notice requirement as presently included in Section 106b in Title 1 of the United States Code and listing known ratifying States, without date information. Further, each also included comparable certification by the Amendment Administrator certifying that a given amendment “has become valid, to all intents and purposes, as a part of the Constitution of the United States.”

With respect to judicial views concerning the announcement of the Final Ratification of a proposed Amendment to the Constitution, the Courts have generally and consistently held that —

• Final Ratification, and the effectuation of a proposed Amendment, is not determinative from the date of the proclamation and certification by the Amendment Administrator;
• The Amendment Administrator has a duty to issue a proclamation announcing the ratification of a proposed Amendment when, and only when, such Amendment Administrator has received “official notice” from the States, without requiring inquiry by the Amendment Administrator; and
• The notices of ratifications communicated by and received from the States, the “official notices,” are not to otherwise be disputed, or questioned by the Amendment Administrator, relative to the State’s inherent State Power to ratify a proposed Amendment to the Constitution.

In the 1920 United States Court of Appeals for the District of Columbia case of the United States ex rel. Widenmann v. Colby, subsequently affirmed by the Supreme Court in 1920, Chief Justice Constantine Joseph Smyth, in reference to Article of Amendment XVIII, declared “its validity does not depend in any wise upon the proclamation [of the Secretary of State, then the Amendment Administrator]. It is the approval of the requisite number of states, not the proclamation, that gives vitality to the amendment and makes it a part of the supreme law of the land.” Chief Justice Smyth further observed that it is the duty of the Amendment Administrator, upon notification of ratification by three-fourths of the States, to issue a proclamation. However, the Amendment Administrator has no duty or obligation to investigate and determine the factual accuracy and reliability of the State ratification documentation.

A year later, in the case of Dillon v. Gloss, the Supreme Court again held that an Amendment to the Constitution becomes effective when ratification is consummated by the States, not the date that the Amendment Administrator proclaims its adoption and ratification. Justice Willis Van Devanter observed, in connection with Article of Amendment XVIII, “That the Secretary of State [as the Amendment Administrator] did not proclaim its ratification until January 29, 1919, is not material, for the date of its consummation [by State ratification], and not that on which it is proclaimed, controls.”

The legal impact of the Amendment Administrator’s proclamation and certification of the Final Ratification of proposed Amendments to the Constitution was further addressed in the 1922 Supreme Court Case of Leser v. Garnett. Justice Louis Dembitz Brandeis, in delivering the opinion of the Court, and in reference to allegations of impropriety regarding two State ratifications of Article of Amendment XIX, observed that “the proclamation by the Secretary [of State] certified that from official documents on file in the Department of State, it appeared that the proposed Amendment was ratified by the legislatures of thirty-six States, and that it ‘has become valid to all intents and purposes as a part of the Constitution of the United States’.” Further, he noted that official notice of ratification by a State is conclusive upon the Amendment Administrator, and upon the Courts, and notwithstanding any allegations to the contrary.

In summary, the Amendment Adminstrator’s proclamation of ratification is best described as a formal public announcement. And although the proclamation and certification of Final Ratification establishes the valididity of a proposed Amendment, it does not otherwise indicate the detminative Final Ratification, or the consummation date.

Posted: 06|15|11 at 1:00 pm. Filed under: 3. Amending the U.S. Constitution.
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