Constitutional Law Article 132 Harv. L. Rev. 1220

Of Synchronicity and Supreme Law


The Constitution identifies three forms of supreme law — the Constitution, laws, and treaties — and specifies procedures for their adoption. Yet it says little about timing. It does not seem to address whether the chambers of Congress must act on bills in close proximity to each other, whether amendments may be proposed across eras or ratified across centuries, or whether a President may make a treaty decades after the Senate consents to its ratification. This Article is the first to offer a comprehensive account of existing federal lawmaking practices as they relate to time. It also considers how those timing practices have evolved over our nation’s history. The Article argues that the Constitution requires some measure of synchronicity within each form of lawmaking. For statutes, all the steps requisite for a bill to become law must occur within a single congressional session, a rule immanent in the Constitution’s concept of a “session.” If all steps do not occur within one session, the slate is wiped clean. For constitutional amendments, the constraints are more complicated and less definite. Both chambers of Congress must pass a proposed amendment within one session. Moreover, once Congress sends an amendment to the states, it lapses if the requisite number of states does not ratify it within a reasonable period. If the proposal is to become an amendment, it must go back to square one and recommence its journey. Treaties are similarly constrained by a synchronicity requirement. In particular, Presidents must make treaties within a reasonable time after the Senate consents to their ratification. If widely accepted, these assertions would have far-reaching implications for how institutions currently make supreme law. The Article further contends that while the Constitution itself adopts a synchronicity constraint on the three forms of supreme law, the participants in each process also can impose their own more stringent limits on each. Finally, the Article uses this framework to comment on the Equal Rights Amendment and the vexing issues posed by attempts to revive that proposal.

* James Monroe Distinguished Professor, Paul G. Mahoney Research Professor, Miller Center Senior Fellow, University of Virginia. Thanks to participants in workshops at University of Virginia, University of San Diego, University of Georgia, and Emory University. Thanks to Nathan Chapman, Laurie Claus, Anne Coughlin, John Duffy, John Harrison, Deborah Hellman, Kathryn Judge, Alison LaCroix, Jonathan Nash, Michael Rappaport, Adam Samaha, and Steve D. Smith for comments and criticisms. Special thanks to Joseph Barakat, Joseph Calder, Hannah Fraher, Russel Henderson, Woojae Kim, and Christian Talley for research assistance. Gratitude to UVA’s Refdesk.