CBA Record May-June 2022

the word “ratify” comes from the Latin adjective “ratus,” which means estab lished, authoritative, fixed, certain. Ratifi cation is an act of validation, a grant of authority that is done, counted, and set. In the context of law, ratification often applies to agency. The 1856 edition of Bouvier’s Law Dictionary, the original American legal dictionary, explains that a principal may “ratify” an action of its agent, meaning that the action is autho rized and adopted by the principal. “But having once ratified the act, upon a full knowledge of all the material circum stances,” according to Bouvier, “the ratifi cation cannot be revoked or recalled, and the principal becomes bound as if he had

received on that plan …. The Constitu tion requires an adoption in toto, and forever.” In other words, no take backs. Subsequent attempts were made to undo state ratifications of the 14th, 15th, and 19th Amendments. For example, on July 9, 1868, South Carolina ratified the 14thAmendment, becoming the 28th state to do so, which was three-fourths of the then-37 states. However, earlier that year, two of the 28 states –Ohio andNew Jersey – attempted to rescind their ratifications. Regardless, the National Archives, the Library of Congress, and all three branches of the national government publicly state that the official effective date of the 14th Amendment is July 9, 1868. There are no

tion when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress. Can Congress – via a unilateral Con gressional resolution – limit the time for states to ratify an amendment? The Constitution sets times in many parts of its text. It establishes mini mum ages, minimum citizenship lengths, terms of office, and term limits for various officeholders. Congress deter mines the time for choosing electors and the day on which the electors give their votes. The Constitution requires a census every 10 years for representa tives to be apportioned. The President

originally authorized the act.” In the narrow context of Arti cle V, the states are like the “principal” and representa tives in Congress are like the “agent.” Congress proposes amendments, but ratification by the states is what makes an amendment official and final. The Constitution itself was approved by state ratification. In September 1787, the Congress sent the Constitution to the states for ratification. By its terms, nine of the 13 states had to approve the Constitution for it to be adopted. On June 21, 1788, the

has a 10-day period in which to approve or disapprove a bill passed by Congress. The year 1808 was set in Article V and elsewhere as the time when the slave trade could be prohibited. However, the text of Article V of the Constitution does not set a time limit on state ratifications of amendments, nor does it provide Congress the authority to set a unilateral time limit on the states. An outsized role for Congress in the amendment process was never envisioned. The Virginia Planof May 29, 1787, preparedby Madison, was an initial template

subtractions due to attempts to rescind. The same is true of the effective dates of the 15th and 19th Amendments. Rescis sions of state ratifications of constitu tional amendments are not honored. State Ratification Time Limit When Congress passed the Equal Rights Amendment in 1972, its pro posing resolution read as follows: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concur ring therein), That the following arti cle is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitu

Constitution became the official frame work of the government of the United States of America when New Hamp shire became the ninth state to ratify. However, the large and important state of New York had not ratified. There were concerns that the Constitution did not include protections for civil liberties, or what we now call a “bill of rights.” Absent these rights, New York delegates were uneasy approving the document. In July 1788, Alexander Hamilton wrote to Madison that New York could ratify the Constitution, but with a “right to recede” if a bill of rights was not added. “A reservation of a right to withdraw” is a “conditional ratification,” responded Madison, and New York “could not be

for the Constitution. Paragraph 13 of that plan stated, “Provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Leg islature ought not to be required thereto.” George Mason concurred: “It would be improper to require the consent of the National Legislature, because they may abuse their power, and refuse their consent on that very account.” As late as September 15, 1787, Edmund Randolph was concerned about the “indefinite and dangerous power” given by the Constitution to Congress. Randolph said he could not support the new constitution unless state conventions could also suggest amendments.

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