Jonah Patel
The question of whether Congress can place a deadline on the states' ratification of a proposed amendment has been a topic of debate, with the text of Article V not explicitly addressing the issue. In the case of Dillon v. Gloss, the Supreme Court upheld Congress's power to specify a deadline, citing their authority to determine the mode of ratification. The first time limit imposed was on the 18th Amendment in 1917, with subsequent amendments, including the 20th, 21st, and 22nd, also having seven-year limits. The absence of a deadline can result in amendments remaining pending indefinitely, as seen with the 27th Amendment, which became part of the Constitution over 200 years after its proposal. The Equal Rights Amendment also faced a lengthy ratification process, with its deadline being extended multiple times. The debate continues regarding Congress's authority to extend or revive amendments after their initial deadlines have expired.
| Characteristics | Values |
|---|---|
| Does Article V address the issue of deadlines for ratification? | No |
| Can Congress place a deadline on the states' ratification of a proposed amendment? | Yes |
| Can Congress extend the ratification deadline for an amendment pending before the states? | No |
| Can Congress revive an amendment after the initial deadline has expired, without restarting the Article V process? | No |
| Can states rescind their ratifications? | Yes |
| Can Congress alter a time limit in a proposing clause? | Yes |
| Can an amendment be ratified long after being proposed to the states? | Yes |
| Can an amendment be ratified without a deadline? | Yes |
| Can an amendment be ratified with a deadline in the text of the amendment? | Yes |
| Can an amendment be ratified with a deadline in the proposing clause? | Yes |
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What You'll Learn
The Supreme Court's interpretation of Article V
Article V of the United States Constitution outlines a two-step process for amending the nation's plan of government. For an amendment to become operative, it must be properly proposed and ratified. This process is designed to balance the need for change with the need for stability. An amendment can be proposed and sent to the states for ratification by either the US Congress, with a two-thirds majority in both the Senate and the House of Representatives, or by a national convention called by Congress on the application of two-thirds of state legislatures.
In the case of Coleman v. Miller, the Supreme Court addressed the issue of whether Congress can place a deadline on states' ratification of a proposed amendment. The Court's decision was inconclusive, with four opinions written, none of which gained the support of more than four members. However, in Dillon v. Gloss, the Court held that the Constitution implicitly authorises Congress to "fix a definite period" for ratification. This decision upheld Congress's specification of a seven-year time limit for the ratification of the Eighteenth Amendment, which established Prohibition. The Court determined that Congress's power to determine the mode of ratification implied an incidental authority to specify a deadline.
The Office of Legal Counsel (OLC) has advised that in the absence of a congressionally proposed deadline, an amendment remains pending before the states until the requisite number of states have ratified it. This was demonstrated in the case of the Twenty-Seventh Amendment, which became part of the Constitution more than 200 years after it was proposed when the required number of states had finally ratified it. The OLC has also stated that Congress lacks the authority to extend ratification deadlines or revive expired amendments without restarting the Article V process.
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The Twenty-Seventh Amendment's 202-year journey
The Twenty-Seventh Amendment to the United States Constitution, which addresses the effective date of congressional pay raises, took a 202-year journey to become part of the Constitution. The amendment was first submitted to the states for ratification on September 25, 1789, along with 11 other proposed amendments. However, it failed to gain enough support from the states for ratification and was largely forgotten until 1982.
In 1982, Gregory Watson, a 19-year-old undergraduate student at the University of Texas at Austin, wrote a paper for a government class in which he argued that the amendment could still be ratified. He subsequently launched a nationwide campaign to complete its ratification. The amendment gained traction in the 1980s when there was significant public disapproval of Congress's performance and the benefits they enjoyed.
By 1992, 38 states had passed the Amendment, reaching the three-quarters consensus required by Article V of the Constitution. On May 20, 1992, the Archivist of the United States declared the Amendment legally ratified, and Congress affirmed its legality, making it an official part of the Constitution. This unique 202-year journey raised questions about the role of the Supreme Court in reviewing the validity of constitutional amendment ratifications.
The Twenty-Seventh Amendment's certification has been upheld against legal challenges. The United States Court of Appeals for the District of Columbia Circuit ruled that congressional cost-of-living adjustments were in accordance with the amendment. This amendment demonstrates the lengthy and complex process of amending the United States Constitution, with the power to propose and ratify amendments resting with Congress and the states.
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The Eighteenth Amendment's seven-year limit
The Eighteenth Amendment to the United States Constitution, which established the prohibition of alcohol, included a seven-year deadline for ratification by the states. This amendment was the result of a decades-long effort by the temperance movement, which argued that prohibiting alcohol would address various societal issues, including poverty and immoral behaviour.
The text of the amendment specified that it would be "inoperative" unless ratified within seven years of its submission to the states by Congress. This was a unique feature of the amendment, as it set a time limit for its ratification and also included a one-year delay before it would take effect. The inclusion of a deadline for ratification was upheld by the Supreme Court in Dillon v. Gloss, which found that the Constitution implicitly authorises Congress to set a definite period for ratification.
The Eighteenth Amendment was ratified in 1919, and the Volstead Act was passed to provide for its federal enforcement. The Act defined "intoxicating liquors" and set the starting date for prohibition as January 17, 1920, the earliest date allowed by the amendment. Despite a decline in alcohol consumption, enforcing prohibition proved challenging, and it was eventually repealed in 1933 by the Twenty-first Amendment.
The Eighteenth Amendment stands as the only amendment to be repealed in its entirety and highlights the role of Congress in setting deadlines for ratification. The inclusion of a deadline ensured that states were aware of the timeframe for ratification and provided clarity to the process. While the amendment was ultimately repealed, it represented a significant moment in US history, demonstrating the power of social movements and the ongoing evolution of the Constitution.
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The Equal Rights Amendment's revival
The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution that seeks to explicitly prohibit gender discrimination and guarantee equal legal rights for all American citizens, regardless of sex. The text of the proposed amendment was announced by the National Woman's Party in 1921 and first introduced in Congress in 1923. With the rise of the women's movement in the United States during the 1960s, the ERA gained increasing support. After being reintroduced in 1971, it was approved by the US House of Representatives that year and by the US Senate in 1972, thus submitting the ERA to the state legislatures for ratification.
Congress set an initial deadline of seven years for the ratification of the ERA, which was later extended to 1982, and then to ten years. Despite this, the campaign fell short of the required 38 states for ratification, with only 35 states ratifying the amendment by the deadline. Five state legislatures also rescinded their earlier support. As a result, the ERA did not become part of the Constitution, and its ratification status has been debated ever since.
In recent years, there has been a revival of the campaign to ratify the ERA, with Nevada, Illinois, and Virginia ratifying the amendment in 2017, 2018, and 2020, respectively. Virginia was the 38th state to ratify the ERA, technically pushing it across the threshold required for an amendment to take effect. However, it is still unclear whether the ERA's protections for women's rights will be added to the Constitution. Opponents of the ERA argue that Congress lacks the authority to revive an amendment after the initial deadline has expired without restarting the Article V process.
Supporters of the ERA, led by ERA Action, have pursued a "three-state strategy" to gain legislative sponsors and coordinate with US Senators and Representatives to introduce legislation in both houses of Congress to remove the ratification deadline. This strategy has gained traction, and in 2014, the Virginia and Illinois state senates voted to ratify the ERA. The "three-state strategy" has been deemed viable by the Congressional Research Service, and it remains to be seen whether the ERA will be added to the Constitution, despite the passage of the initial ratification deadlines.
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The role of Congress in altering deadlines
The Dillon Court's rationale was based on Congress's explicit power to determine the mode of ratification, implying an incidental authority to set deadlines. This interpretation ensures that states have clarity on the timeframe for ratification. However, subsequent commentators and court decisions have challenged this interpretation, arguing that the Constitution does not grant Congress such a role in altering deadlines.
In 2020, the Office of Legal Counsel (OLC) advised that Congress lacks the authority to extend ratification deadlines or revive expired amendments without restarting the Article V process. This aligns with the OLC's view that introducing uncertainty into the ratification process would make it unworkable. The OLC's position reinforces the importance of clear and definite timelines in the amendment process.
Despite these interpretations, Congress has demonstrated its belief in its ability to alter deadlines. In the case of the Equal Rights Amendment (ERA), Congress extended the original ratification deadline from 1979 to 1982. This action was based on their interpretation that transferring time limits from the text of an amendment to the proposing clause allowed them to retain the authority to review and amend deadlines. However, the ERA's ratification period has extended well beyond the extended deadline, reviving debates about the shelf life of constitutional amendments.
In summary, the role of Congress in altering deadlines for ratification of constitutional amendments remains a complex and evolving aspect of the amendment process. While the Supreme Court has provided some guidance in Dillon v. Gloss, there are differing interpretations and ongoing discussions about Congress's authority in this area. The specific circumstances and context of each amendment proposal may also influence how Congress approaches deadline alterations.
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Frequently asked questions
Congress is responsible for "promulgating" the "adoption" of a constitutional amendment and, consequently, has the power to determine whether ratification of a proposed amendment occurred within a "reasonable time".
The Supreme Court held that the Constitution implicitly authorizes Congress to "fix a definite period" for the ratification of an amendment. In the case of *Dillon v. Gloss*, the Court upheld Congress's specification of a seven-year time limit on the ratification of the Eighteenth Amendment.
The OLC advised in 2020 that Congress lacks the authority to extend the ratification deadline for an amendment or to revive an amendment after the initial deadline has expired without restarting the Article V process.
