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Can Congress repeal a proposal to amend the Constitution of the United states, when it has not yet been ratified?

Has it ever happened?

(If I'm not mistaken, some state legislatures have voted to rescind ratifications of proposed amendments, and there has been some controversy about the validity of such an act, but a Congressional repeal of a proposal is another matter.)

  • There is a difference between the role of Congress (the national legislature) and that of the state legislatures in the amendment process. Congress proposes the amendment, and 3/4 of the states must approve (ratify) it before it takes effect. Rescinding ratifications of a proposed amendment is basically changing a "yes" vote to a "no" vote. – sharur Oct 19 '16 at 18:33
  • @sharur : Did my question fail to make it clear that I knew that? – Michael Hardy Oct 19 '16 at 21:03
  • Your comment about controversial state legislature actions did muddle it somewhat, at least for me. I read in between the lines (perhaps incorrectly), inferring a belief in a relationship between the actions of Congress (main question) and those of various state legislatures (parentheses portion). There is none. The (legal) abilities of a state legislature with regards to the US Constitution have no relationship to those of the US Congress. The above is not answer to your question, hence why a comment and not an answer. – sharur Oct 19 '16 at 21:15
  • Or for brevity and clarity, the parenthesis'd comment in your question seems to have no connection to what you are asking. – sharur Oct 19 '16 at 21:15
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There was an attempt to rescind the Corwin Amendment, which might have made it impossible to abolish slavery, but after the amendment was approved though not ratified by the states, there was an attempt in the Senate in 1864 to withdraw the amendment and halt ratification. That was apparently killed in the Senate Judiciary Committee, so it's still out there in constitutional zombieland.

Coleman v. Miller, 307 U.S. 433 and Dillon v. Gloss, 256 U.S. 368 address the matter of time limits on constitutional amendments, and do not directly address this question, but they do indicate in a read-between-the-line fashion that SCOTUS (or those SCOTUSes) is unlikely to get involved in such a question. If Congress sets a time limit, there is a time limit; if Congress doesn't, there isn't.

The Equal Rights Amendment was proposed by Congress with a ratification deadline of March 22, 1979. An extension of the deadline to June 30, 1982 was passed by Congress and signed by President Carter, but that extension was by simple majority. This is relevant in that if upheld by SCOTUS it could indicate that Congress can to some extent modify the status (if not text) of an approved amendment. The Idaho district court in Idaho v. Freeman 529 F.Supp. 1107 ruled on the question of whether Congress could extend the ratification period:

It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon — "so all may know and speculation ... be avoided" — the congressional determination of a reasonable period once made and proposed to the states cannot be altered. If Congress determines that a particular amendment requires ongoing assessment as to its viability or monitoring of the time period, it can do so, not by defeating the certainty implied by the Dillon case, but by not setting a time period at the outset and reserving the question until three-fourths of the states have acted.

But that ruling would have needed support from SCOTUS to have any influence on the instant question. Instead, that ruling was vacated as moot in NOW v. Idaho, 459 U.S. 809, which simply said

Upon consideration of the memorandum for the Administrator of General Services suggesting mootness, filed July 9, 1982, and the responses thereto, the judgment of the United States District Court for the District of Idaho is vacated and the cases are remanded to that court with instructions to dismiss the complaints as moot.

and thus they avoided ruling on the question of whether Congress could extend a deadline (at all: the Idaho ruling wasn't specific to the simple majority question).

So there's only one way to find out: Congress has to try for backsies, somebody has to sue up to SCOTUS, which will have to make a definitive ruling.

  • This answer refers to "the Corwin Amendment, which might have made it impossible to abolish slavery". It seems to me this would have made it impossible for a mere act of Congress to abolish slavery, but it would not have made it impossible for a constitutional amendment to abolish slavery. Perhaps such an amendment would have to be proposed by a special convention rather than by Congress, but if that happened, then that abolition would not have violated this amendment. – Michael Hardy Oct 19 '16 at 21:21
  • The "might have" refers to one of the theories of the effect of the amendment. It was self-immunizing: it prohibited any constitutional amendment of the relevant type. – user6726 Oct 19 '16 at 22:13
  • "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." It specifically refers to the power of Congress. Suppose the states call a constitutional convention and the convention proposes and amendment abolishing slavery, and the states ratify it. Congress has no role in that. – Michael Hardy Oct 19 '16 at 23:49

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