[Publius]

The reason that Congress sent the 21st Amendment to state ratifying conventions was because the bootlegging industry had its tentacles into government at all levels. There was a legitimate fear that sending the amendment to state legislatures for ratification would have resulted in the illegal liquor interests sandbagging ratification and running out the 7 year clock.

For the remainder of your query, please read the following. It's pedantic, I know, but I post it at all these threads. It makes everything clear.

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The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.

Proposal:

There are two ways to propose an amendment to the Constitution.

• The Congressional Method requires the House and Senate to pass an amendment by a two-thirds majority.
• The Amendments Convention Method requires the legislatures of two-thirds of the states to petition Congress to call a Convention for Proposing Amendments. The states may request a single-subject convention or a general convention open to all subjects. Once the two-thirds threshold is reached, Congress is required to set a time and place for the convention.

Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.

Disposal:

Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:

• State Legislature Method, or the
• State Ratifying Convention Method.

The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.

Ratification:

Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.

Forbidden Subjects:

Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.

Explicitly forbidden:

• No amendment may be added to the Constitution concerning slavery or capitation taxes until 1808. We’re past that deadline.
• No amendment may be added to the Constitution to change the principle of equal representation in the Senate unless every state deprived of that right approves. If California wants five senators, every state must have five senators. To permit violation of this principle, every state would have to ratify the amendment, not just three-fourths.

Implicitly forbidden:

• The Constitution of 1787 may not be abrogated and replaced with a new document. Article V only authorizes “a convention for proposing amendments to this Constitution”; therefore, the Constitution of 1787 is locked in place forever. Congress and an Amendments Convention have exactly the same Proposal power; therefore, neither Congress nor an Amendments Convention can start over. Both bodies can only propose amendments. To permit the drafting of a new constitution, this provision in Article V would first have to be repealed; it would be a two-step process.

I have two reference works for those interested.

The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers

The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.

Report of the ABA Special Constitutional Convention Study Committee

[elcid1970]

Your post is informative & appreciated. Learned a lot.

I remember in 1978 how the E.R.A. had sailed through 35 state legislatures starting in 1972 when it suddenly ground to a halt & the clock ran out a year later. Liberals blamed Phyllis Schlafly, Total Woman, and a growing majority of American women who decided that a feminism movement dominated by ranting lesbian radicals was simply not for them.

As for bootleggers & state legislatures, Prohibition in some states made for very strange bedfellows indeed. Dry counties in Tennessee & Alabama to this day. Some have distilleries in them.