Art. I, § 2 of the Constitution provides that “[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” In 1837, two state governors issued writs for special elections to fill vacancies in their House representation for a limited time period. In deciding to seat the winners, the House voted almost unanimously that the purported time limits were unconstitutional. As Rep. Legaré explained in part, the Constitution’s text gives the governor the power only “to issue a writ to fill a vacancy, without any limitation or condition.”
In addition, almost all of the Representatives agreed that the House should disregard the purported limits as surplusage rather than invalidate the writs. Rep. Legaré explained that “every analogy of law” and “every presumption of common sense” commands that the constitutionally issued writs be respected and the limits disregarded. Rep. Haynes considered it a “waste of words” even to discuss the issue because the unconstitutional limits could not override “the full and free expression” of a state’s public will. Contrary to Professor Michael Rappaport’s assertions here, both common sense and precedent support applying the severability doctrine to actions taken under the Constitution, even absent a severability clause in their texts.
Art. I, § 2 provides that the executive “shall issue Writs of Election.” Art. V provides that Congress “shall propose Amendments.” Reading the texts consistently, the Constitution gives Congress only the power to propose amendments without limitations or conditions—Congress cannot limit a state’s power to consider the proposals fully and freely. Reading the Art. V ratification text consistently, amendments are effective “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 three fourths of the several States,” not “when ratified and not rescinded” by them.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. The time limit for ratifying the ERA is unconstitutional surplusage, and state rescissions are ineffective. The Equal Rights Amendment is part of the Constitution—or not, if you agree with the plausible contrary interpretations of Andrew Hyman here, Professor Michael Ramsey here, or Professor Rappaport.
The debate illustrates interpretive problems from impliciture. As Professor Lawrence Solum explains here at 1984–85, some texts may implicitly include closely related things. For example, “You will get promoted if you work hard” may implicitly include the bracketed phrase “You will get promoted if [and only if] you work hard.” However, there are many potential implicitures. If one emphasizes “You,” the impliciture might be that you will be promoted if you work hard, but others—such as the employer’s relatives—will be promoted even if they do not.
Was Rep. Legaré correct to include the bracketed impliciture “the Executive Authority . . . shall [without limitation or condition] issue Writs of Election”? Is it right to reject the bracketed impliciture “when ratified [and not rescinded] by . . . three fourths of the several States”? The written words cannot answer the question, and underlying political principles might point to different answers. May small states condition their ratifications on the most populous states also ratifying, to ensure approval of a supermajority of the people in addition to a supermajority of the states? Should states be free to take their time to fully consider proposed amendments? Or is a time limit appropriate to ensure a contemporaneous supermajority? Should a state be able to rely on prior ratifications when determining whether to take the time to consider its own ratification decision? Or should states be free to reconsider their ratifications as political winds change? The text does not answer any of these questions. Indeed, many Representatives voted to seat (or not to seat) the winners of the 1837 special elections on a variety of different rationales, as described here and posted here (from which much of the above discussion is drawn). Those elections and the ratification of the Equal Rights Amendment illustrate yet again the indeterminacy of non-normative textualism in constitutional interpretation.
Posted at 6:04 AM