Article Five of The United States Constitution - Deadline Imposed On Ratification Process

Deadline Imposed On Ratification Process

The Constitution does not expressly provide for a deadline on the state legislatures' or state ratifying conventions' consideration of proposed amendments. In Dillon v. Gloss (1921), the Supreme Court affirmed that Congress—if it so desires—could provide a deadline for ratification, writing:

We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.

In the aforementioned Coleman v. Miller decision, the Supreme Court modified Dillon considerably, holding that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment. For example, the Twenty-seventh Amendment was proposed in 1789 and ratified more than 200 years later in 1992. On May 20, 1992, both houses of Congress adopted concurrent resolutions accepting the 27th Amendment's unorthodox ratification process as having been successful and valid.

Beginning in 1917, Congress has usually—but not always—imposed deadlines on proposed amendments. The limitation originally took the form of a clause in the text of the constitutional amendment itself, such as "This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress." Such a clause may be found in the Eighteenth, Twentieth, Twenty-first and Twenty-second Amendments. However, with the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth amendments, Congress instead placed the ratification deadline in the resolving clause of the joint resolution proposing the amendment rather than in the amendment's actual text. And in the cases of the Nineteenth Amendment (proposed in 1919) and the still-pending Child Labor Amendment (proposed in 1924), Congress chose specifically not to establish any deadline at all.

As noted in Dillon, the Supreme Court has upheld the power of Congress to set such deadlines on ratification. The power of Congress to extend an already-agreed-upon deadline, however, has not been settled. In 1978, Congress extended the previously-agreed-upon seven-year limit on the ratification of the Equal Rights Amendment by more than three years from a March 22, 1979, original deadline to a June 30, 1982, revised deadline. It was accepted that if the deadline had been contained within the actual text of the amendment itself, Congress could not have extended it, as doing so would involve changing the text of an amendment already ratified by some of the states. In the case of the Equal Rights Amendment, however, it was argued that since the original March 22, 1979, deadline was contained in only the resolving clause of the joint resolution proposing the amendment—rather than in the actual text of the amendment itself—that the deadline could be altered. In 1981, the United States District Court for the District of Idaho, however, found that Congress did not have the authority to extend the deadline, even when only contained within the proposing joint resolution's resolving clause. The Supreme Court had decided to take up the case, overriding the Court of Appeals, but before they could hear the case, the extended period granted by Congress had been exhausted without the necessary number of States, thus mooting the case. To avoid this controversy with the 1978 constitutional amendment proposed to grant congressional representation to the residents of Washington, D.C., Congress returned to the habit of placing the deadline within the actual text of the amendment itself. The District of Columbia Voting Rights Amendment expired unratified in 1985.