Per the US Constitution, states can pass amendments by first having 2/3rds of the state legislatures propose the amendment, and then having 3/4ths of the state legislatures ratify it.

In this case, does legislative approval require only a simple majority of the legislators, or is amendment proposal/ratification treated the same as a law?

In other words, can the governor veto a proposal/ratification, forcing a supermajority of legislators to overturn his veto?

I realize this question is semi-theoretical, since no amendment has been proposed/ratified this way.

I would prefer a well-sourced answer, if possible.

EDIT: According to http://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution#Ratification_dates (emphasis added):

"In other cases, several governors subsequently "approved" the resolutions, even though gubernatorial action is not required by Article V (which requires ratification only by state legislatures or state conventions)."

The statement is unsourced (the nearby footnote 8 just links to the Constitution itself), but suggest the governor need not sign.

The otherwise unrelated: http://en.wikipedia.org/wiki/Gregory_Watson#Post-Ratification_of_13th_Amendment_by_Mississippi and following sections note:

"In March 1995, Mississippi's Senate Concurrent Resolution No. 547 was adopted, thereby making Mississippi the final state to approve the 13th Amendment"

"Tennessee lawmakers, as a symbolic gesture, post-ratified the 15th Amendment with the adoption of House Joint Resolution No. 32"

"The Texas Legislature adopted H.J.R. No. 39 on May 22, 2009, thereby symbolically post-ratifying the 24th Amendment"

These all suggest that the governor was not involved.

Since the 27th Amendment is fairly recent, it might be possible to see some actual state proceedings on ratifying it, at least for the states that ratified it post-1978. I am looking into this, but appreciate any comments/answer.

  • Nice question. My gut instinct is that it is treated as if it were a bill in each state, with the state's own laws for bills applying (whether or not that includes veto power or what it takes to overturn one). But I currently have no sources or research to support that feeling. – Bobson Feb 18 '14 at 17:39
  • That's mine as well - and I'm looking at the list of Article 5 convention applications as well opinions by jstor.org/discover/10.2307/… and law.harvard.edu/students/orgs/jlpp/Vol30_No3_Rogersonline.pdf – Affable Geek Feb 18 '14 at 19:11
  • FYI, the 27th Amendment is a special case - it actually goes back to the Bill of Rights. TONA is probably another good precedent for you to check out. – Affable Geek Feb 18 '14 at 21:17

Ultimately, the answer is that the Archivist of the United States gets to decide what "ratified" means.

A valuable lesson can be drawn from the adoption of the 27th Amendment - one which was unorthodox, in that it was actually a part of the Bill of Rights, but didn't get "ratified" by 3/4 of the states until 1992. Quoting Wikipedia's Artcile on the 27th:

On May 18, 1992, the amendment was officially certified by Archivist of the United States Don W. Wilson. On May 19, 1992, it was printed in the Federal Register, together with the certificate of ratification.[7]

Speaker of the House Tom Foley and others called for a legal challenge to the amendment's unusual ratification.

In certifying that the amendment had been validly ratified, the Archivist of the United States had acted under statutory authority granted to his office by the Congress under Title 1, section 106b of the United States Code, which states:

Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.

Despite that, Senator Robert Byrd of West Virginia scolded Wilson for having certified the amendment without congressional approval. Although Byrd supported Congressional acceptance of the amendment, he contended that Wilson had deviated from "historic tradition" by not waiting for Congress to consider the validity of the ratification, given the more than 202-year lapse since the Amendment had been proposed.[7]

On May 20, 1992, under the authority recognized in Coleman, and in keeping with the precedent first established regarding the ratification of the Fourteenth Amendment, each house of the 102nd Congress passed its own version of a concurrent resolution agreeing that the amendment was validly ratified, despite the unorthodox period of more than 202 years for the completion of the task. Neither version was adopted by the entire Congress.

In other words, the Archivist decided what "ratified" meant, and the Congress got annoyed that he made the interpretation without them. That said, legally, he had a strong case - one that ultimately SCOTUS would have had to decide, had Congress disagreed.

Note, the "Titles of Nobility Amendment" likewise suffered from questions about whether or not enough states had duly ratified it. In fact, there was a point at which the threshhold had sort of been reached - but in the cases of both Virginia and South Carolina, only one house had passed it, not both. As such, no governor had to intervene keeping any "Esquire" from losing his citizenship. And, in the end, it was the Supreme Court that said it had never been duly ratified.

According to the Harvard Law Review, the ambiguity of Article 5 is historical in nature:

Much of the confusion about Article V comes from its ambiguous language. This ambiguity is the result of compromises at the Philadelphia Convention of 1787 between groups that wanted to exclude the national legislature from participating in the amendment process and groups that wanted to grant the national legislature the sole authority to amend. The earliest proposal for an amendment provision, contained in the Virginia Plan, stated that “the assent of the National Legislature ought not to be required” to amend the Constitution.'5 Convention delegates privately circulated a proposed constitution authored by Alexander Hamilton that gave the power to amend the Constitution to the national legislature and the power of ratification to legislatures or conventions in the States.

The Convention's first official action regarding the method for amending the Constitution was to adopt Resolution 17, which stated that the Constitution should contain some means for amendment, but did not specify the particular process to be used.

In other words, this may have been a case where the ambiguity over whether each State Legislature needed to get the assent of the State executive was intentionally left vague.

The nature of federalism has, in any event, long since changed, but the general idea has always been that States get to make their rules and the federal government gets to make its own rules in regards to how it makes legislation.

Note finally, Article 5 states simply that

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution,

when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof,

as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Thus, to propose an amendment you need:

  1. Congress to pass by super majority an amendment to send to the states (most common) or
  2. Two-thirds of the states to ask for a convention.

Once proposed, 3/4 of the states must ratify - but what that means is apparently, at present, up to David Ferriero to decide.


Answering my own question: according to page 12 of the "transcription debate" of Illinois' House of Representatives for April 28 1992 at http://www.ilga.gov/house/transcripts/htrans87/HT042892.pdf (also available in other forms elsewhere; capitalization in original):

be it RESOLVED, BY THE HOUSE OF REPRESENTATIVES OF THE EIGHTY-SEVENTH GENERAL ASSEMBLY OF THE STATE OF ILLINOIS, THE SENATE CONCURRING HEREIN, that the foregoing proposed Amendment to the Constitution of the United States is ratified by the General Assembly of the State of Illinois; and be it further RESOLVED, That the Secretary of State of Illinois shall transmit certified copies of this resolution to the Archivist of the United States, to the Vice-President of the United States and to the Speaker of the United States House of Representatives with a request that it be printed in full in the Congressional Record.

This seems to suggest Illinois' House and Senate had the final word, and the governor was not involved. However:

Madam President: it's my understanding that having been read three times now, that we can indeed bring this issue to a vote today. This particular amendment was put forward by James Madison as one of the original twelve amendments that would have - should it have been been ratified at khat time - part of our Bill of Rights. Ten of those amendments were adopted at that time. This one was not, and as we've heard read into the record-- that numerous states have subsequently ratified this particular amendment, the most notable ones being last week, the thirty-eighth state, which was Michigan - New Jersey following it. Should we ratify this amendment, we would be the fortieth. Conceivably, we could even yet be the thirty-eighth state, should there be any challenges to this particular amendment, which would ask that the original eight states that voted this in in the seventeen hundreds be asked to reconsider and to continue to support their position, because of the extreme age of this amendment. What this amendment very simply does is allows for an intervening election to occur before congressmen can raise their salaries. It has been discussed on at least seven times in the General Assembly here. It has gotten through the House. I would urge its adoption so that we can take our place with others who would like to regulate salaries on the congressional level, much as we do here in the State of Illinois, and I would ask your favorable vote.


Senator Topinka has moved the adoption of HJRCA 2. Further discussion? Senator Rock.

SENATOR ROCK: Well, I'm -- I'm probably wailing at the wind, Madam President. But the fact is, I have, for one, a great deal of confidence in James Madison - at least from what I have read. And I think if, indeed, he had been truly interested in putting this into the Constitution, he would have done it. He was sitting there the whole time. Just seems to me that we have bigger fish to fry than this. This is over two hundred years old, and frankly, I don't think our ratification is legal. So I intend to vote No.

PRESIDING OFFICER: Further discussion? If not, Senator Topinka moves the adoption of HJRCA 2. Those in favor will vote Aye. Opposed, Nay. The voting is open. Have all voted who wish? Have all voted who wish? Take the record, Mr. Secretary. On that question, there are 49 Ayes, 3 Nays, none voting Present. Having received the required majority vote, the amendment is adopted.

I'll await thoughts/comments on my answer before self-approving.

  • 1
    It's definitely a good source, but you have to compare it to the transcripts of a regular bill that later gets vetoed being passed. Does the house usually pass things with "THE SENATE CONCURRING HEREIN"? Does the Senate use the same formulas for concluding voting? I doubt they usually say "Pending the governor's approval", because it's on him to initiate a veto. So it's probably a great example of "business as usual", but probably not one of "bypass the governor". Probably. – Bobson Feb 18 '14 at 21:54

Refer to the 1798 ancient case of Hollingsworth v. Virginia relative to the President of the United States having no role in the constitutional amendment process. By extension, the same would be true for a state's governor.

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    That doesn't necessarily hold. Hollingsworth said that if the President had a role, it would have been mentioned. However, that doesn't necessarily extend to the state legislatures. The states would control their own legislative process. See Arizona State Legislature v. Arizona Independent Redistricting Commission which says that a referendum could take the redistricting power from the state legislature to an independent commission. This despite the clear language saying that that power resides in the state legislatures. Also, governors can veto redistricting. – Brythan Aug 26 '16 at 1:11

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