ArtV.4.2.2 Effect of Prior Rejection of an Amendment or Rescission of 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.

Additional unresolved questions are whether a state may (1) ratify an amendment after rejecting it, or (2) rescind its ratification of a constitutional amendment before that amendment becomes part of the Constitution. The Supreme Court addressed these issues in Coleman v. Miller.1 In Coleman, twenty-four members of the Kansas state legislature sought a writ of mandamus compelling state officials to recognize that Kansas had not ratified an amendment to the Federal Constitution, the Child Labor Amendment,2 challenging the way the vote was taken.3 One of the plaintiffs’ arguments was that the ratification was invalid because the Kansas state legislature previously rejected the amendment.4

The Supreme Court indicated that whether a state could ratify an amendment after rejecting it—or rescind an amendment already ratified—were political questions for Congress to resolve.5 As support for this theory, the Court cited Congress’s 1868 adoption of a concurrent resolution declaring that the Fourteenth Amendment had been ratified.6 Congress adopted this resolution despite the fact that three states had previously rejected the amendment before later ratifying it, and two states attempted to rescind their prior ratifications.7

However, it is unclear whether this historical practice remains relevant. The adoption of the Fourteenth Amendment presented special circumstances. The three southern states that previously rejected the Amendment had constituted new governments at Congress’s direction as a result of Reconstruction by the time they ratified it.8 Thus, the Court’s ruling would not appear to have definitively resolved questions about the effect of a prior ratification or rejection.9 Furthermore, since Coleman, some commentators have expressed doubts that Congress has any constitutional role in determining whether a state has properly ratified a proposed constitutional amendment.10

307 U.S. 433 (1939). back
The proposed Amendment provided in part that “Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” Id. at 435 n.1 (internal quotation marks omitted). back
Id. at 436–37. back
Id. at 447. back
Id. at 449–50. back
Id. at 448–50. back
Id. ( “[T]he political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification.” ). The three states that rejected the Amendment before later ratifying it were Georgia, North Carolina, and South Carolina. The two states that ratified the Amendment and later sought to rescind their ratifications were New Jersey and Ohio. Id. back
Id. back
See, e.g., Idaho v. Freeman, 529 F. Supp. 1107, 1150 (D. Idaho 1981) ( “Until the technical three-fourths has been reached, a rescission of a prior ratification is clearly a proper exercise of a state’s power granted by the article V phrase ‘when ratified’ especially when that act would give a truer picture of local sentiment regarding the proposed amendment.” ), vacated as moot, NOW, Inc. v. Idaho, 459 U.S. 809 (1982). back
See Ratification of the Equal Rts. Amend., 44 Op. O.L.C. 1, 30 (2020) (expressing the view that a congressional role in “promulgating” a constitutional amendment ratified by three-fourths of the states lacks a basis in the Constitution’s text); Cong. Pay Amend., 16 Op. O.L.C. 85. 98–99 (1992) ( “[C]ongressional promulgation is neither required by Article V nor consistent with constitutional practice.” ). back