[Deschler-Brown Precedents, Volume 17, Chapters 34 - 40]
[Ch. 34. Constitutional Amendments]
[D. Ratification]
[Â§ 10. Submission to the States; Records of Ratification]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 50-55]
 
                               CHAPTER 34
 
                       Constitutional Amendments
 
                            D. Ratification
 
Sec. 10. Submission to the States; Records of Ratification

    The process by which a proposed amendment to the Constitution 
leaves Congress as officially proposed and eventually becomes effective 
as part of the Constitution has changed over the years

[[Page 51]]

and occasionally has included actions by the President not necessary to 
the effectiveness of the amendment. For example, the two Houses by 
concurrent resolution asked the President to transmit copies of the 
proposed 15th Amendment to the executives of the States,(1) 
and the President informed Congress of the promulgation of the 
ratification of the 15th Amendment.(2) The President was 
officially involved only in the first 11 amendments(3) and 
the 15th.(4)
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 1. 5 Hinds' Precedents Sec. 7043. Such a concurrent resolution is not 
        privileged in the House. 8 Cannon's Precedents Sec. 3508.
 2. 5 Hinds' Precedents Sec. 7044.
 3. See Sec. Sec. 10.1, 10.2, infra.
 4. 5 Hinds' Precedents Sec. 7044.
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    The ministerial functions of transmitting proposed amendments to 
the States, receiving the notices of ratification by States, and, in 
some instances, declaring an amendment effective have been carried out 
successively by the Secretary of State,(5) the Administrator 
of General Services,(6) and the Archivist of the United 
States.(7)
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 5. See Sec. 10.2, infra.
 6. See Sec. 10.3, infra.
 7. See Sec. 10.4, infra.                          -------------------
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Early Practice

Sec. 10.1 President communicated ratification of Bill of Rights to 
    Congress.

    The President notified the Congress of the ratification of the 
first 10 amendments (the Bill of Rights) by message as 
follows:(1)
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 1. 1 Annals of Cong. 54, 2d Cong. 1st Sess., Dec. 30, 1791.
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        The following Message from the President of the United States 
    was received:

                                        Gentlemen of the Senate, and
                                    of the House of Representatives:

        I lay before you a copy of the ratification, by the 
    Commonwealth of Virginia, of the articles of amendment proposed by 
    Congress to the Constitution of the United States; and a copy of a 
    letter which accompanied said ratification, from the Governor of 
    Virginia.

                                                     G. WASHINGTON

                                 United States, December 30, 1791.

        The papers referred to in the Message are as follows:

                                                  Council Chamber,

                                          Richmond, Dec. 22, 1791.

        Sir: The General Assembly, during their late session, have 
    adopted, on the part of this Commonwealth, all the amendments 
    proposed by Congress to the Constitution of the United States; 
    their ratification whereof I do myself the honor herewith to 
    transmit.
                I have the honor to be, &c.

                                                        HENRY LEE.

                               The President of the United States.



                                                           Virginia:

    General Assembly, begun and held at the Capitol, in the city of 
    Richmond, on Monday, the 17th day of October, in the year of our 
    Lord 1791.

                                         Monday, December 5, 1791.


[[Page 52]]



        Resolved, That the second, third, fourth, fifth, sixth, 
    seventh, eighth, ninth, tenth, eleventh, and twelfth articles of 
    the amendments proposed by Congress to the Constitution of the 
    United States, be ratified by this Commonwealth.

                     December 15th, 1791: Agreed to by the Senate.

                                                       JOHN PRIDE,

                                   S[ecretary]. [of the] S[enate].

                                                   THOS. MATTHEWS,

                     S[ecretary]. [of the] H[ouse of] D[elegates].

        Examined.

    The House received the same message:(2)
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 2. H. Jour., Vol. 1, p. 483, 2d Cong. 1st Sess, Dec. 30, 1791.
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            A message, in writing, was received from the President of 
        the United States, by Mr. Lear, his Secretary, as followeth:

                                                    United States,

                                               December 30th 1791.

                                     Gentleman of the Senate and the
                                           House of Representatives:

        I lay before you a copy of the ratification, by the 
    Commonwealth of Virginia, of the articles of amendment proposed by 
    Congress to the Constitution of the United States, and a copy of a 
    letter which accompanied said ratification from the Governor of 
    Virginia.

                                                    G. WASHINGTON.

    The papers referred to in the said message were read, and ordered 
to lie on the table.

Sec. 10.2 President declares 11th Amendment; Secretary of State assumes 
    record-keeping responsibility.

    The Senate adopted a resolution setting out the history of 
ratification of the first 13 proposed amendments and requesting the 
President to ascertain whether any States other than those recorded had 
ratified the 11th Amendment: (1)
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 1. S. Jour. Vol. 2, pp. 315, 316, 4th Cong. 2d Sess., Jan. 31, 1797.
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        Mr. [Henry] Tazewell [of Virginia] reported, from the committee 
    on the subject of amendments to the constitution of the United 
    States, which was read, as follows:
        ``That, of the twelve amendments proposed by Congress, at their 
    session begun and held in New York on the 4th of March, 1789, the 
    following States ratified the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 
    10th, 11th, 12th, prior to the first day of March, 1791, viz. New 
    Jersey, Maryland, North Carolina, South Carolina, New Hampshire, 
    Delaware, New York, Pennsylvania, and Rhode Island; which States 
    making three-fourths of the then thirteen United States, the said 
    amendments have become a part of the constitution.
        ``That the first amendment was ratified prior to the first day 
    of March, 1791, by the following States, viz. New Jersey, Maryland, 
    North Carolina, South Carolina, New Hampshire, New York, and Rhode 
    Island, and, subsequent to that period, by Pennsylvania, Virginia, 
    and Vermont; which number

[[Page 53]]

    not making three-fourths of the States at the period of 
    ratification, the said amendment has not as yet become a part of 
    the constitution.
        ``That the second amendment was ratified prior to the 1st day 
    of March, 1791, by the following States: Maryland, North Carolina, 
    South Carolina, Delaware, and, subsequent to that period, by 
    Virginia and Vermont; which number not making three-fourths of the 
    States, the said amendment has not become a part of the 
    constitution.''
        ``That the amendment respecting the suability of States, which 
    has been proposed by Congress since March, 1791, has been ratified 
    by the following States: New York, Massachusetts, Vermont, New 
    Hampshire, Georgia, Delaware, Rhode Island, and North Carolina, as 
    appears by authentic documents returned to Congress. The committee 
    have strong reasons to believe that other States have ratified this 
    latter amendment, and that the evidences of the fact have not been 
    as yet returned to the proper departments of the government; 
    wherefore, as the number returned do not amount to three-fourths of 
    the States, the said amendment cannot, under present circumstances, 
    be reported as forming a part of the constitution.
        Whereupon,
        Resolved, by the Senate and House of Representatives of the 
    United States, That the President be requested to adopt some speedy 
    and effectual means of obtaining information from the States of 
    Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, 
    Kentucky, Tennessee, and South Carolina, whether they have ratified 
    the amendment proposed by Congress to the constitution concerning 
    the suability of States; if they have, to obtain the proper 
    evidences thereof.
        Ordered, That the Secretary desire the concurrence of the House 
    of Representatives in this resolution.

    The House agreed to the resolution on Feb. 24, 1797.(2)
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 2. H. Jour. Vol. 2, p. 718, 4th Cong. 2d Sess.
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    The President transmitted to the Congress a message not only 
indicating that a particular State had ratified an amendment, but also 
declaring that the amendment had become part of the Constitution. The 
Journal recorded receipt of the message as follows:(3)
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 3. H. Jour. Vol. 3, p. 126, 5th Cong. 2d Sess., Jan. 8, 1798.
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        A message, in writing, was received from the President of the 
    United States, by Mr. Taylor, Chief Clerk in the Department of 
    State, as followeth:

        Gentleman of the Senate and Gentleman of the House of 
    Representatives:

        I have now an opportunity to transmit to Congress a report of 
    the Secretary of State, with a copy of an act of the Legislature of 
    the State of Kentucky, consenting to the ratification of the 
    amendment of the Constitution of the United States, proposed by 
    Congress in their resolution of the second day of December, one 
    thousand seven hundred and ninety-three, relative to the suability 
    of States. This amendment having been adopted by three-fourths of 
    the several States, may now be declared to be a part of the 
    Constitution of the United States.

                                                       JOHN ADAMS.

                                 United States, January 8th, 1798.

[[Page 54]]

        The said message, and papers referred to therein, were read, 
    and ordered to lie on the table.

    The message also indicates that the President directed the 
Secretary of State to keep records on the ratification of amendments by 
the States, beginning an historical pattern that continued until the 
Reorganization Plan No. 20 of 1950 transferred the responsibility from 
the Secretary of State.(4)
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 4. See Sec. 10.3, infra. For an example of a State's certificate of 
        ratification sent to the Secretary of State with a copy laid 
        before the House, see 76 Cong. Rec. 35, 72d Cong. 2d Sess., 
        Dec. 5, 1932.
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Certification, Publication, and Preservation Functions Vested in the 
    Administrator of General Services

Sec. 10.3 A Presidential reorganization plan transferred responsibility 
    for certification, publication, and preservation of constitutional 
    amendments from the Secretary of State to the Administrator of 
    General Services.

    Under the authority of the Reorganization Act of 
1949,(1) President Harry S Truman transmitted Reorganization 
Plan No. 20 of 1950(2) to the Congress on Mar. 13, 1950.
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 1. 63 Stat. 203
 2. 5 USC App. Reorganization Plan No. 20 of 1950.
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    The plan, in pertinent part, read as follows:

                      STATUTES AT LARGE AND OTHER MATTERS

        Section 1. Functions Transferred from Department of State to 
    Administrator of General Services
        There are hereby transferred to the Administrator of General 
    Services the functions of the Secretary of State and the Department 
    of State with respect to: . . .
        (c) The certification and publication of amendments to the 
    Constitution of the United States (. . . [1 U.S.C. 106b]) and the 
    preservation of such amendments;

    The message of the President transmitting the reorganization plan 
included the following:

        Since its establishment in 1789 the Department of State has 
    performed certain routine secretarial and recordkeeping functions 
    for the Federal Government which are entirely extraneous . . . to 
    the conduct of foreign relations. While these activities do not 
    properly belong in the Department, they were assigned to it and 
    continued under its jurisdiction for want of an appropriate agency 
    for their performance. . . .
        Through the National Archives and Records Service the General 
    Services Administration is especially staffed and equipped for the 
    conduct of activities of these types.

Functions Vested in the Archivist of the United States

Sec. 10.4 Archivist charged with printing and certifying adoption of 
    amendments.

[[Page 55]]

    Effective Apr. 1, 1985, section 106b of title 1, United States 
Code, (1) was amended(2) to transfer from the 
Administrator of General Services to the newly established Archivist of 
the United States the responsibility for publishing and certifying the 
adoption of amendments to the Constitution.
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 1. Section 106b of title 1, United States Code, reads as follows:
   Sec. 106b. LAmendments to Constitution
            Whenever official notice is received at the National 
        Archives and Records Administration that any amendment proposed 
        to the Constitution of the United States has been adopted, 
        according to the provisions of the Constitution, the Archivist 
        of the United States shall forthwith cause the amendment to be 
        published, with his certificate, specifying the States by which 
        the same may have been adopted, and that the same has become 
        valid, to all intents and purposes, as a part of the 
        Constitution of the United States.
 2. Section 107(d) of the National Archives and Records Administration 
        Act of 1984 (Pub. L. No. 98-497; Oct. 19, 1984, 98 Stat. 2291).
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    The Archivist of the United States first executed this 
responsibility under Sec.  106b of title 1, United States Code, in 1992 
when the 27th Amendment was published and certified as having been 
adopted.(3)
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 3. House Rules and Manual Sec. 258, footnote 18 (2007).
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