Can State Referenda Ratify an Amendment?

Note to the reader: Even though ratification of this Amendment by state referenda may be possible, it would throw another risk into the ratification process, and the path is unlikely to be followed. Rather State Referendum and Initiatives may be used to prod ratification support in State Legislatures.

Ratification of an Amendment to the U.S. Constitution by State Referenda

(This review argues in favor of the case that state referenda can ratify a U.S. Constitutional Amendment.)

\THE AMERICAN POLITICAL SCIENCE REVIEW
Volume XIV, pp. 304-306, The Waverly Press, 1920

Amendment to Federal Constitution—Referendum. In re Opinion of the Justices (Maine, 1919, 107 Atl. 673); State ex rel. Muller v. Howell (Washington, May 24, 1919, 181 Pac. 920). These two decisions present a square conflict of judicial opinion upon the interesting question whether or not a joint resolution by a state legislature ratifying an amendment to the United States Constitution is subject to popular referendum, like any other act of the legislature, under the constitutional provisions governing the initiative and referendum. The supreme court of Maine replied to a question of the governor that the joint resolution by which the Maine legislature had ratified the Eighteenth Amendment could not be referred to the people even though a petition for such referendum was duly filed. Two main reasons were given in support of this opinion. In the first place such referendum would be improper under Article V of the federal Constitution relating to amendments. The proposal and ratification of amendments to the United States Constitution is governed wholly by the provisions of that document. The states retain no discretion in the matter of the method of such ratification. The people retain no direct power to ratify an amendment, but the ratification must be made either by the legislature of the state or by ratifying conventions according as Congress may require the one or the other method. In the case of the Eighteenth Amendment, as in the case of its predecessors, ratification by state legislatures was specified when the amendment was proposed by Congress. Accordingly when the legislature of Maine passed its resolution of ratification that ratification was “complete, final, and conclusive” so far as that state was concerned.

It has been established by practice that a ratification once made by a state legislature cannot be rescinded by a subsequent legislature. Ohio and New Jersey both attempted to withdraw their ratifications to the Fourteenth Amendment, and New York tried to withdraw its ratification of the Fifteenth Amendment. None of these attempts was successful. Equally fruitless would be any attempt on the part of the people of the state to withdraw the ratification passed in the regular way by the legislature of the state. In the second place the joint resolution in question is not subject to referendum under the provisions of the constitution of Maine relating to the initiative and referendum. It has been established that the referendum is applicable only to legislation. “This resolution, ratifying the proposed constitutional amendment, was neither a public act, a private act, nor a resolve having the force of law. It was in no sense legislation. It was not signed by the Governor, nor could it have been vetoed by him.” It is, therefore, in the judgment of the court not within the scope of the referendum as that system is defined in the constitution of the state. This opinion is in accord with that of the supreme court of Oregon in the case of Herbring v. Brown (180 Pac. 328).

In the Howell case the supreme court of Washington took the opposite position upon each of the two points which led the Maine tribunal to its final conclusion. It held, first, that the joint resolution of ratification passed by the state legislature was a legislative act within the meaning of the initiative and referendum provisions of the state constitution. Those provisions should be construed liberally to accomplish what was in the minds of the framers, namely, the possibility of referring to popular vote every act of the legislature with the exception of those specially mentioned as being withdrawn from the scope of the referendum. The act of the legislature in ratifying the Eighteenth Amendment was legislative in character and should be regarded in the same light as any other legislative act. In fact, doubt is expressed as to the competence of the legislature to ratify except by an act or bill, or by a resolution having the legal character of an act or bill, since the court finds in the state constitution no power granted to the legislature t6 act in matters of legislation other than by act or bill. This point assumes, of course, that the act of ratification is a matter legislative in character.

Secondly, the court finds nothing in the amending clause of the federal Constitution to stand in the way of the submission of the resolution of ratification to popular referendum. It is admitted that “if we are to stand upon the word ‘Legislature,’ if that word, and that alone, is the Alpha and Omega of our inquiry—it follows that the controversy is at an end; but we are cited to no instances where a great question involving the political rights of a people has been met by such technical recourse; where any court has so exalted the letter and debased the spirit of the law.” The court regards the provision in the federal Constitution relating to amendments, not as a hard and fast stipulation of the precise manner in which ratification by the states must be achieved, but rather as a “reservation in the several states of the right to express their legislative will in the manner in which they had then provided, or might thereafter provide, and, when so regarded, as a compact between the states and the federal government.” The idea that the clause providing for the ratification of amendments by “legislatures” should be construed to mean “legislatures” in the narrow sense of the term, or legislative assemblies, is nullified by the fact that at the time of the adoption of the Constitution of the United States some of the states did not have legislative assemblies. Such a view, further, would deprive a state entirely of the privilege of ratification in case it should so change its constitution as to abolish its legislative assembly entirely and place the duty of performing legislative functions directly and exclusively in the hands of the people. It is more reasonable to assume that when Article V of the federal Constitution uses the word “legislature” in this connection it means the supreme legislative authority of the state whether exercised by legislative assembly, convention, or any other method which might be adopted by the people of the states. This view is held to be in conformity to the views of the framers of the federal Constitution who believed that “the theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority.”

Note: The above text is an OCR-based version of The American Political Science Review, Volume XIV, pp. 304-306, The Waverly Press, 1920 for the reader’s convenience. It is available from under the Google Book Search program.