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ArtV.4.2.3 Authentication of an Amendment's Ratification

Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Another prominent debate surrounds the method by which the states’ ratification of an amendment is authenticated. Article V provides that an amendment becomes part of the Constitution “when ratified” by three-fourths of state legislatures or state ratifying conventions.1 In Dillon v. Gloss, the Supreme Court held that an amendment becomes part of the Constitution on the day that the number of state ratifications meets the three-fourths threshold.2 Consequently, the date on which an Executive Branch official proclaims the amendment has been ratified is not controlling.3

Under current federal law, the Archivist of the United States is responsible for certifying that a proposed constitutional amendment has been ratified after receiving “official notice” from three-fourths of the states that they have adopted the amendment in accordance with the Constitution.4 The Archivist publishes the amendment’s text along with a certificate listing the states that have adopted the amendment.5 The Department of Justice’s Office of Legal Counsel has adopted the view that, in order to perform this duty, the Archivist must determine whether “he has received official notice that an amendment has been adopted according to the provisions of the Constitution.” 6 The Archivist may consult the Attorney General on this legal question, as he did with respect to the states’ ratification of the Twenty-Seventh Amendment.7

U.S. Const. art. V. The Supreme Court has held that state legislatures perform a federal constitutional function when ratifying proposed constitutional amendments. Consequently, the people of a state cannot limit the legislature’s performance of this function through a popular referendum, the enactment of state constitutional provisions, or other means. See Leser v. Garnett, 258 U.S. 130, 136–37 (1922) (rejecting the argument that the people of a state could deprive the state legislature of the power to ratify the Nineteenth Amendment establishing women’s suffrage by enacting state constitutional provisions); Hawke v. Smith, 253 U.S. 221, 231 (1920) (holding that a state lacked the power to require submission of the state’s ratification of the Eighteenth Amendment to a popular referendum). back
256 U.S. 368, 376 (1921). back
Id. back
See National Archives and Records Administration Act of 1984, 98 Stat. 2291, 1 U.S.C. § 106b. back
Id. Since the early days of the United States, various Executive Branch officials have performed the ministerial duty of certifying the ratification of a constitutional amendment. In 1818, Congress enacted a law providing that the Secretary of State would perform this role. Act of Apr. 20, 1818, ch. 80, § 2, 3 Stat. 439. Congress later transferred this role to the Administrator of General Services and then to the Archivist of the United States. See Cong. Pay Amend., 16 Op. O.L.C. 85, 98 (1992) (discussing the history of the Executive Branch’s ministerial duty). back
Cong. Pay Amend., 16 Op. O.L.C. at 99. back
Id. back