                                                      February 15, 1977


77-7     MEMORANDUM OPINION FOR THE
         COUNSEL TO THE PRESIDENT

         Power of a State Legislature to Rescind its
         Ratification of a Constitutional Amendment


   In connection with the consideration by the States of the Equal
Right's Amendment, the question arises whether a State has the power
to rescind its prior ratification of a constitutional amendment. The same
question was presented in 1868 in connection with the adoption of the
Fourteenth Amendment. Congress decided at that time that the States
lacked that power. The historical development, however, was such that
the Amendment would have been adopted even without that legislative
decision.
   In 1868, the year the Fourteenth Amendment was pending for ratifi­
cation by the States, there were 37 States. Twenty-eight were required
to constitute the majority of three-quarters required by Article V of the
Constitution. By July 1868, 29 of the States had ratified the Amend­
ment. In two of them, however, Ohio and New Jersey, the legislatures
had passed resolutions withdrawing their consent to the Amendment.
  On July 20, 1868, Secretary of State Seward issued a proclamation to
the effect that the Amendment had been ratified by the required
number o f States, and had become valid as a part of the Constitution of
the United States on the condition that there be a determination that
    “the resolutions of the legislatures of Ohio and New Jersey ratify­
    ing the aforesaid amendment are to be deemed as remaining of full
    force and effect, notwithstanding the subsequent resolutions of the
    legislatures of those States, which purport to withdraw the consent
    of said States from such ratification.” 15 Stat. 706-707.




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     On the following day, July 21, 1868, Congress adopted a concurrent
 resolution 1 to the effect that the Fourteenth Amendment had been
 adopted by the legislatures o f three-quarters of the States and that the
 Amendment was “hereby declared to be a part o f the Constitution of
 the United States.” Cong. Globe, 40th Cong., 2d Sess. 4266, 4295-4296
 (1868). The resolution enumerates 29 States, including New Jersey and
 Ohio, as having ratified the Amendment.
    The same day, Georgia ratified the Amendment. 15 Stat. 708. Unoffi­
 cial news of that action reached the House of Representatives during its
 deliberations on the concurrent resolution. The House, however, did
 not include Georgia among the ratifying States.
    On July 28, 1868, Secretary Seward, in compliance with the concur­
 rent resolution, issued a proclamation declaring the Amendment to
 have been adopted. He listed Georgia, New Jersey, and Ohio among
 the 30 ratifying States. 15 Stat. 708-711.
    As the result of the ratification of the Amendment by Georgia, it had
 been approved by 28, Le., the requisite number o f States, even if New
 Jersey and Ohio were disregarded. To that extent the issue as to
 whether a State may withdraw its ratification became moot. The ques­
 tion, however, was still alive when Congress made its determination.
There is substantial authority to the effect the power of Congress to
control the submission of constitutional amendments to the States and
to determine whether they have been validly adopted is exclusive.
Coleman v. Miller, 307 U.S. 433, 449-450 (opinion of the Court), 457-
458 (concurring opinion) (1939), approved in, Baker v. Carr, 369 U.S.
 186, 214 (1962).
    If the issue should arise in connection with the Equal Rights Amend­
ment, it seems virtually certain that the question will be put to Con­
gress again. The functions o f the Secretary of State with respect to
constitutional amendments have been statutorily conferred on the A d­
ministrator of General Services. 1 U.S.C. §§ 106b, 112. However, the
very fact that this function is vested in the GSA Administrator is
indicative of its ministerial nature. The Constitution of the United
States, Analysis and Interpretation, S. Doc. No. 82, 92d Cong., 2d Sess.
860 (1973), would either have to follow the precedent established by
Congress in 1868, Le., that a State cannot withdraw its ratification, or
submit the issue to Congress.
    Various commentators have agreed with the 1868 congressional
ruling. Cooley, General Principles of Constitutional Law 257 (4th ed.)
and Watson, The Constitution of the United States 1317-1318 (1st ed.
1910), support the ruling on the basis o f precedents in the fields of
municipal bond elections or votes on special assessments where it has

   1 T h e subm ission o f a constitutional am endm ent to the States need not be presented to
the President. See. Hollingsworth v. Virginia, 3 Dali. 378 (1798). It therefore w ould appear
th a t a congressional determ ination as to w hether an am endm ent has been adopted by the
requisite num ber o f States can be passed as a con cu rren t resolution that is not presented
to th e President.

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been held that an affirmative vote is final and conclusive. Jameson, A
Treatise on Constitutional Conventions 632 (4th ed. 1972), suggests an
element of promissory estoppal, namely, that when a State ratifies an
amendment, it induces like action by other States. It also suggests on
the basis of certain historical precedents that ratifications of a constitu­
tional nature are absolute and unconditional. Jameson, at 629-630. See
also Watson, supra, at 1315-1317.
   While Cooley’s General Principles of Constitutional Law, supra, sup­
ports the action taken by Congress, Judge Cooley’s note on the F our­
teenth Amendment in Story, II Commentaries on the Constitution of
the United States, 677, 680 n. 1 (5th ed. 1891), questions its correctness
and doubts whether a State should be held to its affirmative vote on an
amendment to the Constitution if there should be total change of
circumstances long after that vote was taken. The answer to that
argument seems to be that the Equal Rights Amendment must be
approved within 7 years after its submission to the States. The commit­
ment of a State to its affirmative vote or an amendment during that
period does not appear to involve any undue hardship.
                                            John M . H   armon

                                  Acting Assistant Attorney General
                                                 Office o f Legal Counsel




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