About Our Constitution, a Series
Article 13 – Errors in State Ratification Dates
By David Robert Wood
July 1, 2011
A State’s definitive ratification of an Amendment proposed to the U.S. Constitution is on the specific date of passage by the State Legislature or State “Convention.” For bicameral Legislatures, the date of ratification is the passage date by the second approving house, be it the State Senate or Assembly. However, for various reasons and at various times, individual State ratification dates have often been misreported
The misreporting of ratification dates was due, in part, to a lack of understanding and knowledge of what exactly constituted a State’s ratification. Such knowledge was gained, over time, and with generally well-considered interpretations by the Courts relative to more definitive standards not otherwise specified in the Constitution or by Congress. For example, it was determined that a Governor’s approval of a legislative Act ratifying a constitutional Amendment is unnecessary and inappropriate.
Further, State ratification date information has often been lacking or misreported in the State ratification documents provided to the Amendment Administrator by the States. Considered as “official notice,” as defined in the U.S. Code, this has occurred, in part, because of different governmental reporting and documentation procedures, which vary from State to State. 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. However, often missing was the specific date of passage and affirmative vote by the State Legislature, or in State Convention.
As a result, erroneously reported State ratification dates have included the dates of signatures by the presiding State officers of the Legislature on the enrolled Resolutions; the dates signed by the Governors indicating their approval; the dates that such Resolutions were certified as being true and correct actions of the Legislatures; the dates of the transmittal letters by the State Governors or Secretaries of S tate to the Amendment Administrator; and even the dates of receipt of the State transmittal letters by the Amendment Administrator.
In 1913, and for the first time, the Amendment Administrator conducted a detailed review and analysis of the State documents ratifying Articles of Amendment XVI and XVII. During such review, it was noted that various State ratification dates were incomplete, but that this did not impact the ultimate Final Ratification of these proposed Amendments. As such, and because of time considerations, it appears that no follow-up was then done. Commencing with Article of Amendment XVIII, proposed on December 18, 1917, and ratified on January 16, 1919, the Amendment Administrators appear to have become more proactive in addressing individual State ratification deficiencies or omissions including the possible misreporting of State ratification dates.
The prior incomplete and incorrect State ratification dates for Articles of Amendment I to XVII have, to a degree, since been scrutinized, researched and corrected by the Amendment Administrators. In the mid-to-late 1920s, Tyler Dennett, the Historical Adviser of the Department of State, organized the Amendment administration files and documents, such information before being in somewhat disarray. In 1931, the Legislative Reference Service of the Library of Congress prepared a paper entitled Ratification of the Constitution and Amendments by the States; Data on Ratification… In preparing this report, various State legislative journals for the ratifications of Articles of Amendment I to XIX were collected (Senate Doc. 240, 71st Congress, 3d Session, Congressional Set vol. 10467), and it was observed that there were numerous ratification date discrepancies of a few days. Many, but not all of such dates were thereafter corrected.
Since this date, additional efforts have continued whereby State ratifications of preceding Articles of Amendment were reviewed and corrected. For example, in 1935 the historical documentations for the ratification of Article of Amendment XI were reviewed, researched and then corrected, one hundred and forty years after-the-fact. It appears that such retroactive review of previously ratified Amendments continued off-and-on, through the late-1950s and early 1960s. In addition, and in connection with the research relative to this Series, an additional fifty State ratification dates have been identified as being incorrectly reported in other publications.
Final Ratification Date
The Final Ratification date of a constitutional Amendment is on the day when a State’s ratification results in three-fourths or more of the States having ratified the proposed Amendment, this presently being thirty-eight of the fifty States. As such, a Final Ratification date is subject to being in error because, as previously discussed, a given State’s ratification date may be erroneous. Further the Final Ratification date has been misreported for various other reasons as further discussed below.
A date that has been erroneously reported as the Final Ratification date, early in the nation’s history, was the proclamation and certification date by the Amendment Administrator. However, the Courts have since determined that this date is not the Final Ratification. In the 1920 case of the United States ex rel. Widenmann v. Colby, United States Court of Appeals for the District of Columbia Chief Justice Constantine Joseph Smyth, in reference to Article of Amendment XVIII, stated that “its validity does not depend in any wise upon the proclamation” of the Secretary of State as 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.”
A year later, in Dillon v. Gloss, the U.S. Supreme Court held that an Amendment to the Constitution becomes effective when ratification is consummated by the States, and not on the date that the Secretary of State, as Amendment Administrator, proclaims its adoption and ratification.
The Final Ratification dates for several of the ratified Articles of Amendment have also commonly been incorrectly reported due to misunderstandings, oversights and for other reasons. Included are Articles of Amendment XII through XVII.
Article of Amendment XII is the first with a somewhat commonly misreported Final Ratification date, at least through approximately 1913. Instead of reporting the Final Ratification date as June 15, 1804, by New Hampshire, July 27, 1804, the ratification by Tennessee, had been inappropriately reported as the Final Ratification date. As discussed in a prior article, this occurred because of the New Hampshire Governor’s inappropriately recognized veto of that Legislature’s ratification action. Not until 1913, in connection with a contemporaneous question about the Arkansas Governor’s veto of Article of Amendment XVI, was the issue of a Governor’s veto specifically addressed and determined as being inappropriate and erroneous.
In connection with the question raised regarding Arkansas’ ratification and the Governor’s veto of Article of Amendment XVI, the Office of the Solicitor in the Department of State issued a memorandum dated February 15, 1913, in which it was observed “it is believed that the approval of the Governor [of Arkansas] is not necessary and that he has not the power of veto in such cases.” Since that time, it has generally been acknowledged, and very strongly implied in a number of Supreme Court cases, that State Governors are not involved in the State ratification of a proposed Amendment, regardless of any State Constitution or other statutory requirements to the contrary.
A second commonly misreported Final Ratification date is Georgia’s ratification of Article of Amendment XIII on December 6, 1865. This oversight was due to a general lack of consideration and recognition of the constitutional status of the seceded Southern States from their secessions until re-admission as full member States. This will be the subject in future articles.
For Article of Amendment XIV, the ratification date has commonly been incorrectly indicated as July 9, 1868, or July 21, 1868. These misreported dates are attributable to multiple reasons. First, as with the ratification of Article of Amendment XIII, there was a failure to appropriately consider the constitutional status of the seceded Southern States, not then re-admitted as full member States.
Second, there was the failure to recognize and acknowledge New Jersey and Ohio’s ratification rescissions, which occurred before the Final Ratification. Although this subject has not been addressed by Congress, the view that a State’s ratification power is not foreclosed until Final Ratification has been generally supported, especially in the twentieth century. This was an issue in the 1981 United States District Court for the District of Idaho case of Idaho v. Freeman. Relative to a State’s rescission of a prior ratification, the Judge ruled that a State’s rescission of its prior ratification of a proposed Amendment was appropriate so long as it occurs prior to Final Ratification.
Lastly, there was a failure to properly recognize that the ratifications by the States of Texas and Wisconsin were ineffective. This was because each of their ratifications included substantive wording errors, thus negating them. Further, and to be discussed in the next article, these erroneous ratifications were not discovered until 1913.
With respect to Article of Amendment XV, the ratification date has commonly been misreported as February 3, 1870, or February 17, 1870. As with Articles of Amendment XIII and XIV, this was due, in part, to an oversight in considering the status of the seceded Southern States relative to their ratification actions occurring before their re-admittance as full member States under the Constitution. An additional contributing factor, similar to that of Article of Amendment XIV, was the failure to recognize the ratification rescission by New York, which preceded Final Ratification.
The last ratified Amendment with a somewhat commonly misreported Final Ratification date is Article of Amendment XVII, ratified on May 7, 1913. April 8, 1913, the ratification date by Connecticut, has often been incorrectly indicated as the Final Ratification date. This misreporting was due to a failure to recognize, as being ineffective, the substantive erroneous State ratification action by Wisconsin on February 18, 1913, which was subsequently corrected by Wisconsin’s ratification on May 7, 1913, thereby effectuating Final Ratification.
The next article, the last in the topic or category of “Amending the U.S. Constitution,” will discuss the wording and other errors made by the States in ratifying Amendments to the Constitution. Most are clearly unintentional and benign. However, some of such wording errors are not so benign and, as such, voiding such ratifications. Further, at least one of the not-so-benign wording changes appears to have been intentional.