This is a comment on the post of John Vlahoplus, “Ratification of the Equal Rights Amendment: A Reply to Opponents.” He notes that Article V recites that amendments shall be valid
“when ratified by . . . three fourths of the several States,” not “when ratified and not rescinded” by them. A state can no more rescind its ratification than separately condition it on the three quarters threshold being reached by a deadline of the state’s own choosing…[S]tate rescissions are ineffective.
I think a ratification can effectively be rescinded, for the following reason.
Article II, Section 2, Clause 2 gives the President the power to make treaties, with the approval of two-thirds of the Senate. Suppose the Senate votes on a treaty, and it fails of two-thirds approval by one vote. Sometime later, with all the same Senators present, it is voted on again. Again, it fails by one vote, but one of the Senators who voted “yea” the first time votes “nay” the second time, and one of the Senators who voted “nay” the first time votes “yea” the second time. Could that new “yea” on the second vote be added to all the “yeas” on the first vote to create the necessary two-thirds concurrence? After all, the relevant language is: “provided two thirds of the Senators present concur”; it is not: “provided two thirds of the Senators present concur in a single roll-call vote”.
The Framers were fully familiar with two very different phenomena: sometimes an individual legislator changes his or her mind, and sometimes a legislature changes its collective mind. It is now and was then a commonplace that, if an individual legislator votes, e.g., "nay" and then changes his or her mind and votes "yea" on the same question on a second roll call, the "yea" on the second roll-call does not change the fact that, on the first roll-call, the legislator voted "nay". The legislator is now a "yea" even though previously an "nay", but the "yea" on the second roll call does not erase the "nay" that was recorded on the first roll call.
It is and was a similar commonplace that legislatures as a whole may actually cancel or erase actions they have previously taken. Statutes are repealed routinely. The repeal of a statute (unlike a legislator’s different second vote) does effectively erase from the law books the legislature's previous act of enacting the statute. It is true that Article V does not say: “when ratified and not rescinded.” But what is much more important is that Article V does not contain any language prohibiting a state legislature from rescinding its ratification. This is more important because the Framers certainly understood that legislatures routinely reverse themselves by repealing statutes, with the effect of erasing those statutes from the books. So, if the Framers wanted to prohibit a state legislature from rescinding its ratification, one would expect that Article V would explicitly prohibit such a rescission.
I think the most reasonable understanding of Article V is that three-fourths of the state legislatures would all have to ratify a proposed amendment contemporaneously, and that rescission by any state legislature, before the three-fourths margin had been attained, would effectively cancel that state’s ratification. It makes no more sense to put in the “ratification” column a state whose legislature has explicitly rescinded that ratification than it does to add votes from different roll calls together to attain a super-majority.
JOHN VLAHOPLUS RESPONDS: May Congress rescind its proposal of an amendment just before three quarters of the states have ratified? Congress can also repeal its own statutes. Or does "propose" simply mean "propose," with no take backs, and "ratified" simply mean "ratified," with no take backs? The best interpretation of Article V may be that ratifications should be contemporaneous. But is that the "original meaning" of the article? No proposed amendment included a time limit until 1917. The arguments against recognizing the ratification of the Equal Rights Amendment may be correct, but neither text nor history makes them so.
Posted at 6:45 AM