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.

The first method of ratification requires three-fourths of the state legislatures to ratify a proposed amendment to the Constitution.1 Although this method has been used to ratify twenty-six of the Constitution’s twenty-seven successful amendments,2 many questions concerning this mode of ratification remain unresolved.

One prominent question is whether Congress may place a deadline on the states’ ratification of a proposed amendment, either in the text of the proposed amendment or the accompanying joint resolution. The text of Article V does not specifically address the issue. In Dillon v. Gloss, the Supreme Court held that the Constitution implictly authorizes Congress to “fix a definite period” for ratification of an amendment.3 In that case, the Court upheld Congress’s specification of a seven-year time limit on the ratification of the Eighteenth Amendment establishing Prohibition.4

The Dillon Court determined that Congress’s specific power to determine the mode of ratification (i.e., by state legislatures or state ratifying conventions) implied an incidental authority to specify a deadline for ratification.5 Furthermore, as a practical matter, a definite period for ratification would ensure that states understood how much time they had to ratify the amendment.6 Although the Court also opined that, regardless of whether Congress specifies a deadline, the time period for ratification must be “reasonable,” it appears this language was subsequently regarded as nonbinding dicta in Coleman v. Miller.7 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.8

Limited historical practice suggests that if Congress does not specify a deadline for ratification, the amendment remains pending before the states until the requisite number of states have ratified it. In 1992, the Twenty-Seventh Amendment, which addressed the effective date of congressional pay raises, became part of the Constitution more than 202 years after it was proposed.9 At the time, the Department of Justice’s Office of Legal Counsel (OLC) advised that the amendment became part of the Constitution once the Archivist of the United States certified that the requisite number of states had ratified the amendment.10 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.11

Footnotes

1

U.S. Const. art. V.

2

Intro.3.1 Ratification of Amendments to the Constitution Generally.

3

256 U.S. 368, 375–76 (1921).

4

Id.

5

Id. at 376.

6

Id.

7

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 Rts. Amend., 44 Op. O.L.C. 1, 30–31 (2020).

8

See Ratification of the Equal Rts. Amend., 44 Op. O.L.C. at 15.

9

For more on the Twenty-Seventh Amendment’s ratification and authentication, see Intro.3.6 Post-War Amendments (Twenty-Third Through Twenty-Seventh Amendments) and .

10

Cong. Pay Amend., 16 Op. O.L.C. 85, 87 (1992).

11

Id. at 90, 97. Otherwise, in the OLC’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.” ). In 2020, the OLC advised that Congress lacks the authority to: (1) extend the ratification deadline for an amendment pending before the states; or (2) revive an amendment after the initial deadline has expired, without restarting the Article V process. Ratification of the Equal Rts. Amend., 44 Op. O.L.C. at 3.