Everything You Always Wanted to Know about How Amendments are Made, but Were Afraid to Ask

The single sentence in Article V of the United States Constitution governing the amending process fails to address three important questions: (1) May a state rescind its earlier ratification of a still-pending amendment?, (2) Does an implicit ratification time limit exist? and (3) Who should declare an amendment effectively ratified? Various federal government branches and state legislatures have encountered these questions singly in the context of questionable ratifications of particular amendments. Unsurprisingly, the answers conflict. This Article argues that these issues must be considered together and resolved under principles of federalism, separation of powers, and popular sovereignty.

Ultimately, the Constitution's text and spirit requires that states remain free to rescind their earlier ratifications, that amendments not expire on their own, and that the Supreme Court reassume its role in clarifying the procedural rules of the amending process. This Article shows that the amendment process, often neglected in constitutional scholarship, remains an integral part of the constitutional interpretive tradition.