Ratification and Its Deadlines

In one line

Ratification is the consent of the units, and the questions it raises are how long consent stays open, whether it may be withdrawn, and whether a court may decide either.

In the wording a student can write in an exam: ratification is the process by which the units of a federation, or the electorate, consent to a proposed constitutional amendment, and its incidents include the mode of ratification, the period within which it must occur, the effect of a prior rejection or a purported rescission, and the justiciability of those questions.

The three systems

United States. Article V requires ratification by the legislatures of three quarters of the States, or by conventions in three quarters, as Congress proposes. Congress chooses the mode. The convention mode has been used once, for the Twenty First Amendment.

India. The proviso to article 368(2) requires ratification by the legislatures of not less than one half of the States, by resolutions to that effect passed by those legislatures, before the Bill is presented to the President for assent. It applies only to amendments seeking to make a change in article 54, article 55, article 73, article 162, article 241, Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part XI, any of the Lists in the Seventh Schedule, the representation of States in Parliament, or article 368 itself.

Switzerland. Ratification is by the people and the cantons at a compulsory referendum under article 140, with the double majority in article 142.

Time limits

In the American text, none. Congress began attaching them with the Eighteenth Amendment, placing the limit in the text of the amendment itself, and later in the resolution proposing it.

Dillon v. Gloss, 256 U.S. 368 (1921), upheld the practice: the fair inference from Article V is that ratification must be within some reasonable time after the proposal, and Congress may fix a definite period.

Coleman v. Miller, 307 U.S. 433 (1939), then held that where no limit is fixed, how long a proposal remains open is a political question for Congress.

The two together produce the Twenty Seventh Amendment. Proposed in 1789 with no limit, ratified by the thirty eighth State in 1992, and certified. Two hundred and two years.

In India, none, and none needed, because ratification precedes presentation to the President and the Bill lapses with the House if it is not completed.

In Switzerland, article 139 fixes eighteen months for the collection of a hundred thousand signatures for a popular initiative, and article 141 fixes a hundred days for a referendum request on a federal act. Those are limits on initiation rather than on ratification, because ratification is a single vote on a single day.