Article V states that one of the methods of ratification is that 3/4 of the state legislatures can approve a proposed amendment.
But does the math change if new states are added before that amendment is ratified? Is it 3/4 of the states at the time of proposal, or at the time of ratification? I assume it’s the latter - but wanted to see if there was a definitive answer.
It’s at the time of ratification. For an extreme example, the 27th Amendment was proposed in 1789 when there were only 13 states, and it was finally ratified in 1992, when it received its 38th vote. It needed 38 votes (3/4 of 50), not 10 votes (3/4 of 13).
The Supreme Court ruled in 1939 that only Congress could decide whether a non-time limited amendment was still valid. This essentially overturned a 1921 decision.
well that sets that if congress isn’t claiming its ratified, then its not ratified.
basically because of the need to keep a physical document, then if congress destroys the document, its dead, and if the document exists with the required 3 out 4 x states ratifications , then its done.
So the answer is congress can only claim its ratified if it meets 3/4 at the time of the claim.
That would mean that States could start jerrymander vs ratification race.. eg one state could split into 10 in order to multiple their vote by 10…
Yes, Congress has the power to not accept a lengthy ratification, but no instance of that has ever occurred. The Archivist of the United States declared the 27th Amendment ratified.
What physical document?
States can split, but only with the consent of its legislature and a vote by Congress.
I believe there are only two outstanding amendments without a time limit and both of them are moot. The Child Labor Amendment is unnecessary due to changes in federal legislation. Madison’s first proposed amendment, concerning House apportionment, was, as passed by Congress:
After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
The amendment was recognized as not functional in a rapidly expanding population. In fact, the House would require 6629 seats as of the 2020 census.
Were there constitutionally thirteen states then? At the time the 27th Amendment was proposed in September, 1789 there were only eleven states. North Carolina did not ratify the Constitution until November that year, and Rhode Island didn’t ratify until May, 1790.
Article VII puts the number of original colonies to ratify the Constitution at nine (New Hampshire - June, 1788). The Constitution, in Article V then ups that number to three-fourths for amendments.