Implications for the Article V Amendment Process

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No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The unusual circumstances of the Twenty-Seventh Amendment’s ratification more than 200 years after its proposal have raised important questions about Article V’s process for amending the Constitution.1 One question is whether there is an implicit time limit on an amendment’s ratification when Congress does not specify one in the amendment’s text or the accompanying joint resolution.2 Although the Supreme Court in Dillon v. Gloss opined that, regardless of whether Congress specifies a deadline, the time period for ratification must be “reasonable,” 3 it appears this language was subsequently regarded as nonbinding dicta in Coleman v. Miller.4

Some scholars have argued, consistent with the dicta in Dillon, that Article V requires a “contemporaneous consensus” among Congress and the states in favor of an amendment,5 but other commentators disagree.6 The National Archivist’s certification of the Twenty-Seventh Amendment more than 200 years after it was proposed suggests that, if Congress does not specify a deadline for ratification, an amendment remains pending before the states until the requisite number of states have ratified it.7

Another question that emerged from the Twenty-Seventh Amendment’s ratification is whether Congress has any role to play in determining whether an amendment has been ratified.8 After the National Archivist certified the Twenty-Seventh Amendment as part of the Constitution, the House and Senate each passed a concurrent resolution recognizing that the Amendment had been adopted.9 In Coleman v. Miller, a 1939 case involving the unratified Child Labor Amendment, the Supreme Court indicated that Congress might play a role in “promulgating” an amendment, noting that Congress had adopted a concurrent resolution recognizing that the states had ratified the Fourteenth Amendment after the Civil War.10 However, the Court also noted the unique circumstances surrounding the ratification of the Fourteenth Amendment.11 For instance, 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.12 Thus, the Court’s ruling in Coleman would not appear to have definitively resolved questions about Congress’s role in the ratification process. Moreover, since Coleman, some commentators have expressed doubts that Congress has any constitutional role in determining whether the states have ratified a proposed constitutional amendment.13

1: For a more in-depth discussion of Article V, see Article V: Amending the Constitution. See also Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 546–51 (1992) (discussing debates over the issues of “contemporaneity,” “rescission,” and “constitutionality” ).
2: For more on this issue, see ArtV.4.2.1 Congressional Deadlines for Ratification of an Amendment. Beginning with its 1917 proposal of what would become the Eighteenth Amendment, Congress has specified a deadline of seven years for the ratification of every proposed amendment except for the proposal that became the Nineteenth Amendment recognizing women’s suffrage. See Ratification of the Equal Rights Amendment, 44 Op. O.L.C. __ at *15 (2020).
3: 256 U.S. 368, 375–76 (1921). At the time, the Court considered it “quite untenable” that the Congressional Pay Amendment remained pending before the states and could still be ratified. See id. at 375.
4: 307 U.S. 433, 453 (1939) (discussing Dillon, 256 U.S. at 375–76). In Coleman, Chief Justice Charles Evans Hughes suggested, in an opinion titled “Opinion of the Court,” that Congress is responsible for “promulgating” the “adoption” of a constitutional amendment and, consequently, Congress had the power to determine whether ratification of a proposed amendment occurred within a “reasonable time.” Coleman 307 U.S. at 453–56. However, subsequent commentators have argued that this dicta in Coleman is incorrect because the Constitution gives Congress no such role. See, e.g., Ratification of the Equal Rights Amendment, supra note 2, at *30–31.
5: See Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 692 (1993) (discussing the strengths and weaknesses of this argument).
6: See id.
7: See Certification of Amendment to the Constitution of the United States Relating to Compensation of Members of Congress, 57 Fed. Reg. 21187, 21187 (1992). At the time, the Department of Justice’s Office of Legal Counsel (O.L.C.) advised that the Amendment became part of the Constitution once the Archivist certified that the requisite number of states had ratified the Amendment. Congressional Pay Amendment, 16 Op. O.L.C. 85 (1992). Rejecting dicta to the contrary in Dillon, the OLC stated that, in the absence of a congressionally proposed deadline, an amendment remains pending before the states. Id. at 90, 97. Otherwise, in the O.L.C.’s view, the Article V process would become unworkable because states would not know whether they could still ratify an amendment. Id. at 97 ( “The implicit time limit thesis is thus deeply implausible, because it introduces hopeless uncertainty into that part of the Constitution that must function with a maximum of formal clarity if it is to function.” ). For an argument that Congress may rescind its proposal of an amendment to the Constitution by a two-thirds vote in both Houses, see Paulsen, supra note 5, at 727–29.
8: For more on this issue, see ArtV.4.2.2 Effect of Prior Rejection of an Amendment or Rescission of Ratification.
9: See H.R. Con. Res. 320, 102d Cong., 2d Sess. (1992); S. Con. Res. 120, 102d Cong., 2d Sess. (1992).
10: 307 U.S. 433, 448–50 (1939).
11: See id.
12: See id.
13: See Ratification of the Equal Rights Amendment, supra note 2, at *30 (expressing the view that Article V “contemplates no role for Congress in the ratification process after it proposes an amendment” ); Congressional Pay Amendment, supra note 4, at 98–99 ( “[C]ongressional promulgation is neither required by Article V nor consistent with constitutional practice.” ). The Twenty-Seventh Amendment’s ratification also raised the question of whether a state may ratify an amendment after earlier rejecting it. By accepting the ratifications of New Hampshire and New Jersey, both of which had previously rejected the Twenty-Seventh Amendment, the National Archivist implicitly endorsed the notion that a state may ratify an amendment after rejecting it. See Certification of Amendment to the Constitution of the United States Relating to Compensation of Members of Congress, 57 Fed. Reg. 21187, 21187 (1992). See also Bernstein, supra note 1, at 547–58.