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 ratification 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 Amendment. 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 of 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 ratifying 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 of three-quarters of the States and that the 

Amendment was “hereby declared to be a part of 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. Unofficial 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 concurrent 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 of 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 question, 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 Amendment, it seems virtually certain that the question will be put to Congress again. The functions o f the Secretary of State with respect to 

constitutional amendments have been statutorily conferred on the Administrator 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 of precedents in the fields of 

municipal bond elections or votes on special assessments where it has

1 T he submission o f a constitutional amendment to the States need not be presented to 

the President. See. Hollingsworth v. Virginia, 3 Dali. 378 (1798). It therefore would appear 

that a congressional determination as to whether an amendment has been adopted by the 

requisite num ber o f States can be passed as a concurrent resolution that is not presented 

to the 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 constitutional 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, supports the action taken by Congress, Judge Cooley’s note on the Fourteenth 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 commitment of a State to its affirmative vote or an amendment during that 

period does not appear to involve any undue hardship.

J o h n M . H a r m o n

Acting Assistant Attorney General

Office o f Legal Counsel

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