In scope the amending power is now limited as to but one subject, -namely, the equal representation of the States in the Senate.0 It has by some been argued that even this limitation may be evaded by adopting a constitutional amendment eliminating this limitation upon the amending power, and thus opening the way to subsequent amendments providing for an unequal senatorial representation of the States.7

It would seem that a state legislature having rejected an amendment proposed by Congress, may later reconsider its action and give its approval.8 In 1865 the legislature of Kentucky having rejected a proposed amendment the governor of the State, in a recommendation to the legislature, said: "When ratified by the legislatures of the several States the question will be finally withdrawn, and not before. Until ratified it will remain an open question for the ratification of the legislatures of the several States. When ratified by the legislature of a State, it will be final as to such State; and, when ratified by the legislatures of three-fourths of the several States, will be final as to all. Nothing but ratification forecloses the right of action. When ratified, all power is expended. Until ratified, the right to ratify remains."

5 For similar decisions in the House of Representatives, see Hinds, Precedents of the House of representatives, V, V. § 7040.

6 It has at times been alleged that no amendments in violation of the "spirit" of the Constitution or providing for a change in the essential nature of the American State would be valid. The argument in support of this view rests, however, upon a conception of the Constitution as a contract between the States.

7 Cf. von Hoist, Constitutional Law, p. 31, note.

8 Jameson, Constitutional Convent ions. § 576.

In the foregoing quotation it is said that a state legislature having once ratified its action is final. Until three-fourths of the States have ratified, any State may withdraw a rejection previously given. This in fact was done by several States with reference to the Fourteenth Amendment, and the ratifications thus given accepted as valid. That a ratification once given may not be withdrawn would also seem to be settled by the action taken by the federal authorities in counting among those ratifying the Fourteenth Amendment certain States which, having ratified, later attempted to reverse this action.9

The submission in 1866 of the Fourteenth Amendment to the legislatures of the States at a time when a number of the Southern States had not yet been "reconstructed" and admitted to the full enjoyment of privileges belonging to member States of the Union, gave rise to the question whether the legislatures of the reconstruction governments in those States were constitutionally qualified to act in the premises. Seward, Secretary of State, seemed at first doubtful of this. In his proclamation of July 20, 1368, announcing the adoption of the Amendment, after saying that in six States ratification had been had "by newly constituted and established bodies avowing themselves to be and acting as the legislatures respectively" of those States, and after calling attention to the fact that Ohio and New Jersey had withdrawn their ratifications, he said, hypothetically: "If the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid Amendment are to be deemed as remaining in full force and effect, notwithstanding the subsequent resolutions of those States which purport to withdraw the consent of those States from such ratification, then the aforesaid Amendment has been ratified in the manner heretofore mentioned, and so has become valid to all intents and purposes as part of the Constitution of the United States."

9 Jameson, §§ 577-584.

Later, however, in a second proclamation Seward declared in a positive manner the Amendment to have been adopted.

The requirement of ratification by the States lately in rebellion of the Fourteenth Amendment as a condition precedent to their readmission to full constitutional rights as member States of the Union, was a requirement the imposition of which by Congress it is difficult constitutionally to justify. But, a State having yielded and ratified, the Supreme Court expressed the view in White v. Hart10 that a claim could not be made that the ratification was void because given under coercion.11

10 13 Wall. 646; 20 L. ed. 085.

11 The court say: "The third of these propositions is clearly unsound, and requires only a few remarks. Congress authorized the State to form a new-constitution and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received and so recognized in the subsequent action of that body. Upon the same grounds she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department of the government and is concluded by it."