Ratification of Amendments to the U.S. Constitution

97-922 GOV September 30, 1997 CRS Report for Congress Received through the CRS Web Ratification of Amendments to the U.S. Constitution David C. Huckabee Specialist in American National Government Government Division Summary Article V of the U.S. Constitution provides two ways to propose amendments to the document and two ways to ratify them. Amendments may be proposed either by the Congress, by two-thirds votes of the House and the Senate (of those present and voting, provided a quorum is present), or by a convention called by Congress in response to applications from the legislatures of two-thirds (34) or more of the states. Amendments must be ratified by three-quarters (38) or more of the states. The Congress can choose to refer proposed amendments either to state legislatures, or to special conventions called in the states to consider ratification. Only the 21st Amendment (repeal of Prohibition) has been ratified by conventions held in the states. In the period beginning with the First Congress, through September 30, 1997 (105th Congress, 1st Session), a total of 10,980 proposals had been introduced to amend the Constitution. Thirty-three of these were proposed by Congress to the states, and 27 have been ratified. Excluding the 27th Amendment (Congressional Pay), which took more than 202 years, the longest pending proposed amendment that was successfully ratified was the 22nd Amendment (Presidential Tenure), which took three years, nine months, and four days. The 26th Amendment (18-year-old vote) was ratified in the shortest time: three months and 10 days. The average ratification time was one year, eight months, and seven days. Ratification Deadlines The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the 18th Amendment (Prohibition). All amendments proposed since then, with the exception of the 19th (Women's Suffrage) and the proposed child labor amendment, have included a deadline either in the body of the amendment proposed to the states, or in the joint resolution transmitting the amendment to the states to be ratified. Congressional Research Service ˜ The Library of Congress CRS-2 The 20th through 22nd Amendments incorporated the ratification deadline in the body of the amendment, so these amendments' deadlines are now part of the Constitution. Beginning with the 23rd Amendment, Congress began imposing the seven-year deadline in the joint resolutions transmitting the amendments to the state legislatures in order to avoid including extraneous language in the Constitution.1 The ratification deadline "clock" begins running on the day final action is completed in Congress (presidential approval of proposed amendments is not necessary). The amendment may be ratified at any time after final congressional action, even though the states have not been officially notified. The Archivist of the United States officially notifies the states (by registered letters to the governors) that an amendment has been proposed. The Archivist also keeps track of state ratifications and issues a proclamation when ratification is completed.2 The rules governing the consideration of proposed amendments vary among the states. Many legislatures require proposed amendments to be approved by "constitutional majorities"—a majority of the membership of the legislature (rather than a quorum for doing other legislative business). Some states require amendments to be ratified by the same margin as a proposed amendment to their state constitutions; others only require a majority of the legislators present and voting (provided a quorum is present). At least seven states require a "supermajority"3 vote in one or more "chamber, either by rule, statute, or state constitution."4 The unprecedented time period of the 27th Amendment's successful ratification, and the decision by the 95th Congress to extend the seven-year deadline for the proposed Equal Rights Amendment (ERA) for an additional two years, 10 months, and 16 days,5 has prompted speculation that Congress might have the power to revive other amendments proposed without ratification deadlines (in the body of the amendment) by enacting new ratification deadlines. At this writing, this matter is unresolved, but constitutional scholars 1 See: Walter Dellinger, "The Legitimacy of Constitutional Change: Rethinking the Amendment Process," Harvard Law Review, vol. 97, Dec. 1983, p. 408. Two exceptions to this practice were the 27th Amendment, because it was proposed in 1789, and the proposed District of Columbia voting representation amendment, where a seven-year time limit was included in the body of it. 2 Pursuant to 1 U.S.C. 106b. 3 A "supermajority" requires more than a simple majority (one half, plus one). A supermajority ratification requirement for proposed amendments has been recognized by a federal District Court. In Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975), a federal District Court upheld an Illinois supermajority requirement for ratification of a proposed amendment to the U.S. Constitution. 4 The seven States requiring "supermajority" votes to ratify amendments are Alabama, Colorado, Delaware, Georgia, Idaho, Illinois, and Kansas. See Scott Mackey and Brenda Erickson, The Balanced Budget Amendment: The Road to Ratification: A Preliminary Report, (Washington: National Conference of State Legislatures, 1995), p. 4. 5 The Equal Rights Amendment was proposed on March 22, 1972. The original ratification deadline of March 21, 1979 was extended until January 30, 1982, with the adoption of H.J. Res. 638 on October 11, 1978. CRS-3 distinguish the Equal Rights Amendment extension from efforts to revive amendments whose deadlines have expired because the ERA deadline was extended before the original deadline had expired. The following tables list information about amendments that were proposed by Congress. Table 1 lists the dates of proposal and ratification, and the number of days each successful amendment was pending before the states before ratification. Table 2 provides summary statistics about amendments, and Table 3 lists the amendments Congress proposed that were not ratified by the states. Table 3 provides the date the amendment was proposed, its ratification deadline (if it had any) and the number of states that ratified it. CRS-4 Table 1. Time Required to Ratify Constitutional Amendments Amendment Date Proposed 1—Religion, speech, assembly 25-Sep 1789 Date Ratified 15-Dec-1791 No. of days 811 2—Bear arms " " 811 3—Quartering soldiers " " 811 4—Searches and seizures " " 811 5—Rights of persons " " 811 6—Rights of accused " " 811 7—Civil trials " " 811 8—Punishment for crime " " 811 9—Unenumerated rights " " 811 10—Reserved powers " " 811 11—Suits against states 04-Mar-1794 07-Feb-1795 340 12—Election of Pres. & Vice Pres. 09-Dec-1803 15-Jun-1804 189 13—Slavery 31-Jan-1865 06-Dec-1865 309 14—Rights guaranteed 13-Jun-1866 09-Jul-1868 757 15—Right to vote 26-Feb-1869 03-Feb-1870 342 12-Jul-1909 03-Feb-1913 1,302 17—Pop. election of Senators 13-May-1912 08-Apr-1913 330 18—Prohibition 18-Dec-1917 16-Jan-1919 394 19—Women's suffrage 04-Jun-1919 18-Aug-1920 441 20—Commencement of terms 02-Mar-1932 23-Jan-1933 327 21—Repeal of prohibition 20-Feb-1933 05-Dec-1933 288 22—Presidential tenure 21-Mar-1947 27-Feb-1951 1,439 23—Pres. electors for D.C. 17-Jun-1960 29-Mar-1961 285 24—Abolition of poll taxes 27-Aug-1962 23-Jan-1964 514 06-Jul-1965 10-Feb-1967 584 26—18-year-old vote 23-Mar-1971 01-Jul-1971 100 27—Congressional salaries 25-Sep-1789 07-May-1992 74,003 16—Income tax 25—Pres. vacancy, disability Source: For dates proposed and ratified: U.S. Congress, House. The Constitution of the United States of America, As Amended, H. Doc. 102-188, 102nd Cong., 2nd sess., (Washington: GPO, 1992). Time to ratify calculated by CRS. CRS-5 Table 2. Range, Mean, and Median Values for Ratifying Ratifying Constitutional Amendments (Excluding 27th Amendment) Maximum time to ratify 22nd amend. 1,439 days Minimum time to ratify 26th amend. 100 days Median Mean 18th & 19th centuries 811 days 670 days 20th century 394 days 546 days 18th - 20th centuries 670 days 617 days Mean and median times to ratify Table 3. Unratified Amendments Subject APPORTIONMENT—Regulates the apportionment of Representatives among the states. TITLES OF NOBILITY—Revokes citizenship of people accepting titles of nobility or "any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power." SLAVERY—Prohibits constitutional amendments that will authorize Congress to "abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." CHILD LABOR—Gives Congress the "power to limit, regulate, and prohibit the labor of persons under 18 years of age." EQUAL RIGHTS—"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." D.C. REPRESENTATION—Treats the District of Columbia "as a State ... for the purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution." Ratification deadline No. of states ratifying 25-Sep-1789 None 10 1-May-1810 None 12 2-Mar-1861 None 2 2-Jun-1924 None 28 22-Mar-1972 (proposed) 11-Oct-1978 (extended) 21-Mar-1979 (original) 30-Jan-82 (extension) 35 22-Aug-1978 21-Aug-1985 16 Date proposed Sources: U.S. Congress, House, The Constitution of the United States of America As Amended, H. Doc. No. 102-188, 102nd Cong., 2nd sess, (Washington: GPO, 1992); U.S. Library of Congress, Congressional Research Service, Proposed Amendments to the Constitution of United States of America Introduced in Congress from the 91st Congress, 1st Session, Through the 98th Congress, 2nd Session, January 1969December 1984, by Richard A. Davis, CRS Report 85-36 GOV, (Washington: Feb . 1, 1985.)