Rick, I haven’t been able to find cites, but it appears that part of the holdings in Idaho v. Freeman was that ratification was like virginity – once you ratified, you could not reverse the ratification. Unfortunately, what’s available to a non-lawyer online doesn’t give the case, only people making reference to it.
I’m sympathetic with you and Wilson on this issue – I do sometimes think that we’d have a freer society today if there’d been no Bill of Rights. However, the fact is that specific protectable rights have to be proclaimed somewhere, whether that’s in the Constitution, in statute, or in court decisions. (If the latter two, they’re much more subject to evolution than in the former, of course.) Otherwise, they simply cease to have meaning; there must be a way to demarcate between “this is OK” and “this is not OK.” If there’s no way to segregate government action into one of these categories, then government becomes either totally incapable of action or totally arbitrary. If there is no line between what a government can and cannot do to me, then I can simply claim that I’ve got a right to steal stuff or to kill people I don’t like or to eat my children. I assume you’d say I don’t have the right to do any of this and shouldn’t, but if there is no way to distinguish between protected rights and these others, then how can the government stop me?
It’s also clearly wrong to say that rights shouldn’t have to be guaranteed by the government because the government’s power comes from the people. When people cede power to the government, then they ain’t got it anymore. They’ve decided that collective decisionmaking on the issue is better than the State of Nature. But the virtues of said collective can only be realized if most everybody participates. Otherwise the system will immediately break down as those who benefit from a government policy abide by it and those who don’t, don’t. (See aforementioned eating of children.)
–Cliffy
That’s true, although dicta, if a non-binding opinion can be said to contain dicta. But it also says, on point, that Congress cannot extend the time limit for ratification after sending the amendment to the states - the point that Susanann is denying.
- Rick
Well, we’ve been there - sort of.
The Fourteenth Amendment was ratified by Ohio and New Jersey, and both states subsequently passed rescinding resolutions. At the same time, the Carolinas and Georgia, which had rejected the amendment in previous sessions, passed it (perhaps due to the rebuilt Reconstruction-act legislatures, but that’s a topic for another time).
Because of this put-your-right-foot-in, put-your-right-foot-out confusion, Congress directed the Secretary of State to to report on the number of States ratifying the amendment. He did so, noting the Ohio/New Jersey and Georgia/N. Carolina/S. Carolina actions and stating that if all were counted as ‘yes’, then the amendment had one more than than the three-fourths needed to pass. He specifically noted that it was unclear if Ohio and New Jersey’s actions were effective in withdrawing ratification, and asked Congress to declare the issue.
Following his report, Congress adopted a resolution listing all 29 states, including Ohio and New Jersey, as having ratified and concluded that the ratification process was completed.
This is perhaps the strongest authority that a state may not withdraw ratification.
- Rick
:eek:
I had no idea! Go Reconstruction-era jurisprudence! (Tennessee’s ratification of the Amendment came only after the Reconstruction legislature rounded up Democrats who refused to show up for a quorum, locked them in the statehouse basement and then counted them as present for the vote.)
–Cliffy
I brought the matter up because the OP asked what rights the constitution granted. I don’t quite agree that specific rights have to be proclaimed somewhere. I believe that I should have a right to do anything I please as long as it doesn’t interfere with others. That is where government has a role. If someone protests that my actions are injuring his rights then the government, acting for the people at large, needs to step in and draw a line of demarcation beyond which my actions in a particular area can’t go. In short, pass a law. And we do have laws, and had them even before the adoption of the Constitution, against stealing, eating children and other such entertainments.
But only certain definite and specified powers are ceded to the government by the Constitution. I don’t see anywhere that granting of rights to the people was one of them.
As to the question of whether the Constitution was instituted by the states or the people, yes, it is a point of contention. I don’t think it should be. I believe that the original draft read something like “We the United States of Maine, Vermont, New Hampshire, New York, (etc right down through all 13 colonies)…” and when Governour Morris wrote the final draft he dropped all that in favor of “We the People …” and the Convention ratified it. So it would appear that they favored the idea that the government was established directly by the people.
In addition the ratification wasn’t by the State Legislatures but by ad hoc state conventions established for that purpose.
“On March 18, 1996, the Congressional Research Service at the Library of Congress released a memorandum on ERA ratification, including analysis of the “three-state strategy” for preserving the existing 35 state ratifications. While noting that there is no precedent for accepting state ratifications after a deadline, the report stated that inclusion of the 27th (Madison) Amendment in the Constitution has implications for the premise that ratification of the ERA by three more states could allow Congress to declare ratification accomplished.”
"By transferring time limits from the text of an amendment to the proposing clause, Congress retained for itself the authority to review the limit and to amend its own previous legislative action regarding that time limit.
In 1978, Congress clearly demonstrated its belief that it may alter a time limit in the proposing clause when it passed an extension of the original seven-year limit for ERA ratification and moved the deadline from March 22, 1979, to June 30, 1982. "
“under the principles of Dillon and Coleman, and based on the fact that Congress voted to extend the ERA time limit and to accept the 203-year-long ratification period of the Madison Amendment as sufficiently “contemporaneous,” it is likely that Congress has the power to legislatively adjust or remove the time limit constraint on the ERA if it chooses, to determine whether or not state ratifications which occur after the expiration of a time limit in a proposing clause are valid, and to promulgate the ERA after the 38th state ratifies.”
http://www.equalrightsamendment.org/viability.htm
::sigh::
Idaho v. Freeman for the proposition that Congress acted unconstitutionally in extending the ERA deadline.
NOW v. Idaho - the Supreme Court declares that the issue is moot because the extended deadline has also passed… leaving open the question of whether Congress could legally do the first extension while the amendment was live, but closing the door by declaring the amendment dead after the expiration of the second deadline.
At BEST, the issue is unsettled law.
- Rick