This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
The President's approval of a proposed amendment is not required. In Hollingsworth v. Virginia4 the court without argument say: "The negative of the President applies only to the ordinary cases of legislation; he has nothing to do with the propo-sition or adoption of amendments to the constitution."
In 1865 a proposed amendment having been inadvertently sent to the President for his approval, the Senate adopted the following resolution:
2 The question having been raised by a member, Speaker Reed of the House said:
"The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says " two-thircls of the House." What constitutes a House? A quorum of the membership, a majority, one-half and more. That is all that is necessary to constitute a House to do all the business that comes before the House. Among the business that comes before the House is the reconsideration of a bill that has been vetoed by thie President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the House is present the House is constituted and two-thirds of those voting are sufficient in order to accomplish the object. It has nothing to do with the question of what States are present and represented, or what States are present and vote for it. It is the House of Representatives in this instance that votes and performs its part of the function. If the Senate does the same thing, then the matter is submitted to the States directly, and they pass upon it.
The first Congress, I think, had about sixty-five members, and the first amendment that was proposed to the Constitution was voted for by thirty-seven members, obviously not two-thirds of the entire House. (First session First Congress, Journal, p. 121, Gales and Seaton ed.) So the question seems to have been met right on the very threshold of our Government and disposed of in that way."
3 Hinds, Precedents of the Bouse of Representatives, V, §§ 7029-7039. 4 3 Dall. 378; 1 L. ed. 644.
AMENDMENT OF THE FEDERAL Constitution.
"Resolved, That the article of amendment proposed by Congress to be added to the Constitution of the United States respecting the extinction of slavery therein having been inadvertently presented to the President for his approval, it is hereby declared that such approval was unnecessary to give effect to the action of Congress in proposing said amendment, inconsistent with former practice in reference to all amendments to the Constitution heretofore adopted, and being inadvertently done, should not con-Mi tute a precedent for the future; and the Secretary is hereby instructed not to communicate the notice of the approval of said proposed amendment by the President to the House of Representatives."5