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.

Alternatively, Congress may require that state ratifying conventions approve a proposed amendment.1 Congress has specified this second mode of amendment only once, for the Twenty-First Amendment, which repealed the Eighteenth Amendment establishing Prohibition.2 In the joint resolution proposing the Twenty-First Amendment, Congress specified that “conventions in three-fourths of the several States” must ratify the Amendment for it to become operative.3

At the time Congress proposed the Twenty-First Amendment in 1933, many politicans believed that only state ratifying conventions should ratify constitutional amendments that implicated individual rights and morals.4 In addition to seeking a ratification method deemed to better reflect the popular will, Congress may have also wished to bypass the Temperance lobby, which remained powerful in state legislatures.5 According to this view, by specifying that specially elected state delegates would ratify the Amendment, rather than state legislators, Congress increased the Amendment’s chances of successful ratification.6

Neither the Constitution nor Supreme Court precedent specifically provides guidance as to how the states should convene ratifying conventions, select delegates, or conduct the proceedings. The thirty-eight state conventions that considered the ratification of the Twenty-First Amendment in 1933 followed a variety of procedures.7 In general, the delegates at the state conventions, most of whom were pledged to vote for the repeal of the Eighteenth Amendment, did not engage in significant deliberation on an issue that already received strong popular support at the polls.8

Footnotes

1

U.S. Const. art. V.

2

See Intro.3.1 Ratification of Amendments to the Constitution Generally.

3

The House Joint Resolution Proposing the Twenty-First Amendment to the Constitution, 72nd Cong. (1933), https://www.docsteach.org/documents/document/21st-amendment.

4

Everett S. Brown, Ratification of the Twenty First Amendment to the Constitution of the United States: State Convention Records and Laws 3 (2003).

5

Robert P. George & David A. J. Richards, The Twenty-First Amendment, Nat’l Const. Ctr., https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxi/interps/151 ( “[P]olitical prudence pointed in the direction of ratifying conventions as a way of leaving gun-shy legislators with their eyes on re-election out of the process and ‘off the hook.’” ).

6

See id.

7

Brown, supra note 4, at 8–9.

8

Brown, supra note 4, at 5–7.