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Published online by Cambridge University Press: 01 August 2014
All proposals of amendments to the Constitution of the United States under Article V have been made only by Congress and, with the exception of the Twentyfirst Amendment, the mode of ratification has been “by the legislatures of three-fourths of the several states.” The Twenty-first Amendment alone was ratified by conventions in three-fourths of the states.
The enrolled joint resolution proposing the Twenty-first Amendment was delivered on February 20, 1933, to Secretary of State Henry L. Stimson. On February 21, he sent identic letters to the governors of the forty-eight states, enclosing with each letter a certified copy of the joint resolution, and requesting that the resolution be submitted to a state convention and that a certified copy of the action taken be communicated to the secretary of state.
1 The general statements and statistics in the first part of this paper are based on Ratification of the Twenty-first Amendment to the Constitution of the United States, Publication No. 573, Department of State (1934). For assistance in the collection and analysis of state statutes, I wish to thank two students, S. Beach Conger, Jr., and Robert S. Johnson.
2 Michigan, April 10; Wisconsin, April 25; Rhode Island, May 8; Wyoming, May 25; New Jersey, June 1; Delaware, June 24; Massachusetts, June 26; Indiana, June 26; New York, June 27; Illinois, July 10; Iowa, July 10; Connecticut, July 11; New Hampshire, July 11; California, July 24; West Virginia, July 25; Arkansas, August 1; Oregon, August 7; Alabama, August 8; Tennessee, August 11; Missouri, August 29; Arizona, September 5; Nevada, September 5; Vermont, September 26; Colorado, September 26; Washington, October 3; Minnesota, October 10; Idaho, October 17; Maryland, October 18; Virginia, October 25; New Mexico, November 2; Florida, November 14; Texas, November 24; Kentucky, November 27; Ohio, December 5; Pennsylvania, December 5; Utah, December 5; Maine, December 6. In several instances, delays in receipt of ratification by the Department of State changed the order of states as published by the Department.
3 New York Times, December 11, 1932 (signed article by A. Mitchell Palmer). See also Ibid., June 19, 1935; Congressional Record, 72d Congress, 2d Session, 130–134 (December 7, 1932).
4 New York Times, December 11, 1932 (signed article by Howard Lee McBain).
5 Ibid., January 22, 1933 (signed article by James M. Beck). See also Congressional Record, 72d Congress, 2d Session, 124–130 (Dec. 7, 1932), 2419–2421 (Jan. 24, 1933). For an interesting state interpretation of the term “federal function,” see Acts of Arkansas, 1933, Act 151, Sec. 4 (pp. 469–470).
6 New York Times, February 21, 1933. On this controversy, see also Mitchell, William D., “Methods of Amending the Constitution,” 25 Lawyer and Banker, 265–270Google Scholar; Dowling, N. T., “A New Experiment in Ratification,” 19 A.B.A. Journal, 383–387Google Scholar; Platz, William A., “Article Five of the Federal Constitution,” 3 George Washington Law Review, 17–49Google Scholar; Norman T. Ball, “Ratification of Constitutional Amendment by State Conventions,” 2 ibid., 216–221; Lincoln, Alexander, “Ratification by Conventions,” 18 Massachusetts Law Quarterly, 287–298Google Scholar; Smith, Dumont, “Has Congress Power to Call Conventions in the States to Consider Constitutional Amendments?,” 2 Journal of the Bar Association of Kansas, 1–7Google Scholar; Phillips, H. S., “Has Congress Power to Call and Regulate Ratifying Conventions?,” 6 Florida S. B. A. Law Journal, 573–578Google Scholar; Schaefer, George J., “Amendments to Constitution: Ratification by State Convention,” 7 St. John's Law Review, 375–378Google Scholar.
7 The states so providing were Arizona, California, Connecticut, Delaware, Florida, Idaho, Indiana, Iowa, Maryland, Montana, Nevada, Ohio, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, and Wyoming.
In order to obviate frequent footnote citations, references to state statutes providing for the calling of the conventions are here listed in alphabetical order: Alabama General and Local Acts, Extra Session, 19SS, pp. 77–80; Arizona Supplement to the Revised Code, 1934, pp. 141–143; Arkansas Acts of the 49th General Assembly, 1933, pp. 467–470; California Codes, Laws, and Constitutional Amendments of California, 1933 Supplement, pp. 1759–1763; Colorado Session Laws, Extraordinary Session, 1933, pp. 51–59; Connecticut Special Laws, 1933, vol. xxi, part 2, pp. 835–838, 913, 984; Delaware Laws, 1933, pp. 33–43; Florida Compiled General Laws, 1927, Annotated Cumulative Supplement, 1934, pp. 31-32; Idaho General Laws of the 22nd Session, 1933, pp. 328–334; Illinois Revised Statutes, 1933 (ed. Cahill), pp. 96–98; Indiana Acts of the 78th Session, 1933, pp. 851–858; Iowa Acts Regular Session, 45th General Assembly, 1933, pp. 1–5; Kentucky Acts of General Assembly, Extra Session, 1933, pp. 22–29; Maine Acts and Resolves of 1933, pp. 640–643; Maryland Laws, 1933, pp. 447–454; Massachusetts Acts and Resolves, 1933, pp. 161–163; Michigan Public Acts, 1933, pp. 24–26; Minnesota Laws, 1933, pp. 272–276; Missouri Laws, 1933, pp. 233–237; Montana Laws, 1933, pp. 458–461; Nebraska Cumulative Supplement to Compiled Statutes, 1933, pp. 318–319; Nevada Statutes, 1933, pp. 252–258; New Hampshire Laws, 1933, pp. 153–157; New Jersey Laws, 1933 pp. 143–148, 226, 371, 1453; New Mexico Laws, 1933, pp. 400–405; New York Laws of the 156th Session, 1933, pp. 525–533; North Carolina Public Laws, 1933, pp. 600–607; Ohio Laws, 1933, pp. 74–77; Oklahoma Session Laws, 1933, pp. 499–503; Oregon Laws, 1933, pp. 845–848; Pennsylvania Laws, 1933, pp. 233–237; Rhode Island Acts and Resolves, 1933, pp. 74–87; South Carolina Acts, 1933, pp. 1180–1184; South Dakota Session Laws of 1933, pp. 100–103; Tennessee Public Acts, 1933, pp. 53–64; Texas General Laws, 43rd Legislature, Regular Session, 1933, pp. 358–364; Utah Laws, 1933, pp. 36–38; Vermont Public Laws, 1933, pp. 118–120; Virginia Acts, Extra Session, 1933, pp. 3–8; Washington Laws, 1933, pp. 697–702; West Virginia Acts, 1933, pp. 78–84; Wisconsin Laws, 1933, pp. 180–184; Wyoming Session Laws, 1933, pp. 111–113.
8 Laws of New Mexico, 1933, Chapter 163, section 16 (p. 404).
9 Arizona, Delaware, Florida, Idaho, Indiana, Iowa, Missouri, Montana, New Mexico, Ohio, South Dakota, Texas, Utah, Vermont, Washington, and Wyoming.
10 Alabama, Arkansas, California, Colorado, Connecticut, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New, Hampshire, New Jersey, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia, and Wisconsin.
11 These states were Alabama, Arkansas, Maine, Michigan, and Oklahoma.
12 Colorado, Illinois, Minnesota, and New Hampshire.
13 Maine Legislative Record, 1933 (Senate, March 27), 804.
14 Arizona, California, Colorado, Delaware, Florida, Idaho, Illinois, Iowa, Kentucky, Minnesota, Missouri, New Hampshire, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, West Virginia, and Wisconsin.
15 Arkansas, Indiana, Maine, Massachusetts, Michigan, Montana, Nebraska, Nevada, North Carolina, Oregon, South Dakota, Texas, Washington, and Wyoming.
16 Alabama, Connecticut, Maryland, and New Jersey.
17 Alabama, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Kentucky, Maine, Minnesota, Montana, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, and Wisconsin.
18 As in Colorado.
19 As in Iowa, Missouri, Nevada, Texas, and Wyoming.
20 As in Maryland, Massachusetts, Michigan, New Hampshire, South Carolina, Vermont, Virginia, and West Virginia.
21 As in Nebraska.
22 As in Oregon and Washington.
23 As in West Virginia.
24 New Mexico Statutes Annotated, 1929, Section 41–702 (p. 777).
25 Delaware, Florida, Illinois, Maryland, New York, Ohio, Tennessee, and West Virginia.
26 Maine Legislative Record, 1933, pp. 598, 804; 167 Atlantic Reporter, 178, 180.
27 148 Southern Reporter, 107–111. See comments on these cases in 47 Harvard Law Rev., 130; 18 Minnesota Law Rev., 70–71; 37 Law Notes, 121–122. The comments in the latter two articles differ as widely as the opinions of the justices in the two cases cited.
28 Through the courtesy and cooperation of the staff of the law library of the University of Michigan, it was made possible to examine the official records of the conventions in Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Virginia, Washington, and Wyoming.
29 Journal of the Convention of the People of the State of Indiana, pp. 23–24.
30 Ibid., pp. 26–34.
31 Ibid., pp. 44–53.
32 Connecticut Constitutional Convention, p. 14.
33 Iowa Journal of the State Convention, p. 17.
34 New York Convention to Consider and Act upon the Ratification of the Amendment … Providing for the Repeal of the 18th Amendment, p. 15.
35 Texas Constitutional Convention, p. 9.
36 Vermont Constitutional Convention, p. 13.
37 Ibid., p. 15.
38 Virginia Journal of the Convention, pp. 13–14.
39 Wyoming Constitutional Convention, p. 17.
40 Massachusetts, Proceedings of the Constitutional Convention, pp. 15–18.
