ARTICLE
V:
AMENDING THE FEDERAL
STEVEN
CONSTITUTION
HALE
ARTICLE V:
AMENDING THE FEDERAL CONSTITUTION
STEVEN HALE
FALL 1979
TEXAS TECH UNIVERSITY SCHOOL OF LAW
I.
INTRODUCTION
Although the amending process as set forth in Article V may seem simple
and straightforward, it Is in practice, a very detailed procedure involving complex issues.
I.
II.
An outline of the basic amending course is as follows:
Proposal
A.
by Congress; or
B.
by a convention called by two-thirds of the states
Ratification
A.
by three-fourths of the state legislatures; or
B.
by three-fourths of the state conventions
Relatively few cases (about seven) interpreting Article V have been decided
by the Supreme Court, and no legislation governing the process of amendment has
yet to pass the Congress.
Therefore, at this point the American people are pro-
vided with a handful of Court decisions which deal with only a few aspects of the
amendment process and numerous conflicting interpretations of Article V by constitutional scholars.
The purpose of this paper is to present the various posi-
tions taken on the interpretation of Article V in an attempt to shed some light
on this important, yet relatively obscure, area of constitutional law.
II.
JUSTICIABILITY
Before examining the procedures and issues involved in the amending process,
there is a preliminary, basic issue which must be addressed —
whether the valid-
ity of an amendment, attacked either for improper procedures used in proposing
or ratifying the amendment or for improper substance, is subject to judicial review, i.e., whether it is justiciable.''"
The first Supreme Court case to pass on the validity of an amendment to the
Constitution was Hollingsworth v. Virginia.2
In that 1798 challenge to the Eleventh
Amendment, the Court, held that the President "has nothing to do with the proposition or adoption of amendments to the constitution," because his approval applies
\h
1 '
Jt. ••
only to cases of ordinary legislation.3
I" passing on the legality of the pro-
cedure involved, the Court never mentioned the issue of justiciability:
evi-
dently it was assumed to be a legal question.
From 1798-1920, the Court did not pass on the validity of a federal amendment.
In two cases concerning the validity of state constitutions, the Court, in
dicta, did suggest that questions concerning the amending process were political
in n a t u r e . H o w e v e r , the dominant view of state courts during this period was
that all steps of the state constitutional amendment process were justiciable.^
In 1920 came several challenges to the eighteenth amendment, mostly by parties that had been convicted under federal prohibition laws.
to reach the Court was Hawke v. Smith, Ho. 1.'
The first such case
In that case, the Court found
that the use of a popular referendum in ratifying a constitutional amendment, as
allowed by the Ohio Constitution, was in violation of the Article V method of
ratification by state legislatures as was used In this instance.
The Court de-
fined the term "legislatures" as "a representative body which made the laws of
the people." g
Q
In the same year the National Prohibition Cases
were decided.
In that case
the Court summarily found that the substance of the eighteenth amendment was proper^® and that a two-thirds vote in each house required to propose an amendment
meant two-thirds of those members present, assuming a quorum was present."
The
12
issue of justiciability was raised by the Solicitor General
but was not addressed
in either the majority of concurring opinions.
The third eighteenth amendment case to come before the Court was Dillon v.
Gloss."''3
The challenge here was to the placing of a limit on the time allowed for
ratification.
The Court found a need for the placing of a reasonable time limit
on the ratification period and stated that it was up to Congress to determine how
many years was reasonable.^
a it;«i
The Court did not address the issue of justiciability in these three cases,
and seemed to have no qualms in deciding the validity of both the substance of
the eighteenth amendment and the procedures involved in its proposal and ratification.
Soon thereafter, though, the Court in Leser v. Garnett^ acknowledged the
finality of ratification upon the Court without directly addressing the justiciability issue.
amendment.
The case involved a challenge to the validity of the nineteenth
After its substance was upheld, the amendment's final, ratification
was challenged on the ground that two states which had ratified had not done so
in accordance with their respective state rules of procedure.
The Court found
that the notifications to the Secretary of State by the states were binding on
the Secretary, and that the Secretary's certification of those acts by his proclamation of ratification "was conclusive upon the courts,"'"' therefore giving
the "political branch" final determination on whether the amendment had been
properly ratified.
In 1931, the Court upheld Congress* sole discretion in selecting the proper
mode of ratification in United States v. Sprague,17 another challenge to the
eighteenth amendment.
Although, again, the Court did not question whether it
should even be deciding such issues, Professor Orfield has suggested that "ft]he
language of the court is such as to induce the belief that the court regarded the
amending process as generally justiciable." 18
The leading and most current case on the issue of justiciability in this area
19
is Coleman v. Miller,"
a challenge to Kansas' ratification of the proposed Child
Labor Amendment after the state had previously rejected it.
The Court reviewed
the history of the adoption of the fourteenth amendment in which Congress declared
the amendment ratified, knowing that the list of ratifying states included two which
had withdrawn their ratifications, causing a lack of one state necessary to consti-
tute Che required three-fourths.
The Court declared:
We think that in accordance with this historical precedent
the question of the efficacy of ratifications by state
legislatures, in the light of previous rejection or attempted
withdrawal should be regarded as a political question pertaining to the political departments, with the ultimate
authority in the Congress in the exercise of its control^
over the promulgation of the adoption of the amendment."
[emphasis added]
The challengers In Coleman also claimed that too. much time had elapsed
(13 years) between the amendment's proposal and Kansas' ratification, causing
the amendment to lose its vitality.
The Court distinguished its holding in
Dillon v. Gloss that Congress may fix a reasonable time for ratification and
setting out the criteria for determining how long was reasonable with the present
case in that Congress in Dillon had specified a definite period for ratification
in the amendment itself; whereas, in the present case there was no time limit
set by the. proposed amendment.
The Court declined to determine if a reasonable
time had expired, suggesting that if a time limit is not set at the outset,
Congress should decide whether the period of ratification has been reasonable
at the time it debated the promulgation of the adoption of the amendment, and
22
that this decision not be subject to judicial review.
The concurring opinion by Justice Black and joined by Justices Roberts,
Frankfurter, and Douglas argued that Congress has exclusive control over the amending process, and insofar as Dillon may attempt to place any restrictions on Con23
gress, it should be overruled.
Professor Orfield narrowly construed the holding in Coleman to open the door
to the political question doctrine In the amendment area only to those issues expressly addressed in the case, I.e., the effect of a rejection on a subsequent
ratification and withdrawal of a ratification and the time limit on ratification.
Therefore, the Court would retain its reviewing power over matters of quorum,
1
Ji.' • <J
presidential role, referenduras, substance, etc.'"
The Court has addressed the political question/justiciability issue since
Coleman in two major cases, Baker v. Carr and Powell v. McCormack.
In these
cases, the Court has appeared to reassert the courts' review powers in areas
of political decision, thereby posing the possibility that future questions
concerning the interpretation of Article V may be greeted by the Court.
95
Baker v. Carr,"
a landmark apportionment case, involved a fourteenth amend-
ment equal protection challenge to the districting of a state legislature.
The
Court, In rejecting the notion that this area of the lav; was excluded from judicial review, stated:
The doctrine of which we treat is one of "political questions,"
not one of "political cases." The courts cannot reject as "no
lawsuit" a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority."^
The Court established the following guidelines for finding a political question:
[A] textually demonstrable constitutional commitment of the
issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it: or the impossibility for deciding without an
initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or the
unusual need for unquestioning adherence, to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on
one question.
Unless one of these formulations is inextricable from
the case at bar, there should be no dismissal for nonjusticia0 7
bility on the ground of a political question's presence.
00
Powell v. McCormack"-0 involved expulsion proceedings in the House of Representatives against one of its members.
The Court was faced with the argument
that Article I, section 5 of the Constitution gave the House judicially unreviewable power to set qualifications for membership and to judge whether prospective
members met those qualifications.
The Court, however, concluded from a lengthy
140
examination of the history behind the section that Article I, section 5 was
"at most a 'textually demonstrable commitment' to Congress to judge only the
29
qualifications expressly set forth in the Constitution,""
therefore allowing
the courts to determine whether the House had based its actions on those criteria alone.
It was also claimed that "judicial resolution of petitioner's claim would
produce a "potentially embarassing confrontation between coordinate branches of
the Federal Government."
But the Court stated that all that was required in
determining the congressman's rights was an "interpretation of the Constitution."
The issue of justiciability in the Article V area was recently addressed
30
in an Illinois federal district court opinion, Dyer v. Blair,
Supreme Court Justice Stevens.
written by now
The case involved a provision of the Illinois
Constitution which required a three-fifths majority in each house of the. legislature in ratifying an amendment to the federal constitution.
The ERA had
passed both houses by a simple majority, but not by the required three-fifths.
One of the arguments adopted by the state was the Baker v. Carr criterion
that there was a "lack of judicially discoverable and manageable standards for
resolving it."
The court acknowledged the resemblance of the issue involved in
this case to the lapse of time issue in Coleman in that the criteria for judicial
determination was hard to find, but distinguished the two cases in that here
the answer does not depend on economic, social or political
factors that vary from time to time and might well change
during the interval between the proposal and ratification.
A question that might be answered in different ways for different amendments must surely be controlled by political standards rather than standards easily characterized as judicially
manageable.31
Therefore, the issue before the court was found justiciable.
Following the Powell and Dyer cases, it may be a reasonable assumption that
a future Court decision on Article V justiciability will utilize the Baker v. Carr
criteria and that the Court will determine the applicability of the political
question doctrine on an issue-by-Issue basis, rather than deciding whether
Article V interpretations are or are not altogether justiciable.
III.
THE AMENDING PROCESS
A.
PROPOSAL OF AN AMENDMENT
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or,
on the Application of the Legislatures of two thirds of the
several States shall call a Convention for proposing Amendments . . .
1.
BY NATIONAL CONVENTION
The method of proposing amendments by a national convention is probably
more misunderstood and controversial than thi1 alternative method, by Congress,
because the last time this method was used was in 1789 when a group of statesmen gathered to propose amendments to the Articles of Confederation, but ended
37
up in proposing an entirely new document, the U.S. Constitution. ~
However,
numerous applications have been made by states for a convention, but have fallen
short of the requisite two-thirds.
The history behind the inclusion of Article V in the Constitution shows
that a vehicle of initiating amendments other than by Congress was established
in case the national government might abuse its powers, becoming oppressive and
refusing to initiate amendments desired by the states.
Regardless of this his-
torical intent, Congress plays an important, though indirect, role in almost
every phase of this procedure.
It has been suggested that, as a necessary incident to its power to call a
proposing convention, Congress is empowered "initially to determine whether the
35
conditions which give rise to its duty have been satis
fied.
This can be
found by analogy to the Coleman holding in which the Court, found Congress to have
1 LI/
the discretion in determining when ratification has been completed, therefore,
Congress would also decide when two-thirds of the states had made proper appli36
cation.
These conditions precedent fall into three major categories:
(1) content
of the application; (2) time limit on application; and (3) withdrawal of application .
(1) content of the application
In determining whether the requisite agreement exists among two-thirds of
the states, what standards should Congress use in comparing the subject matter
of the applications?
Must the wording be identical, similar, or need the appli-
cations concern the same subject at all?
Professor Orfield found "[t]he better view would seem to be that the ground
of the applications would be immaterial, and that a demand by two-thirds of the
37
states would conclusively 3how a widespread desire for constitutional change,"
therefore opening the convention to any subject.
On the other hand, in a recent study conducted by the American Bar Association, the Committee concluded that there must be a consensus among the state
legislatures as to the
o osubject matter of a convention before Congress would be
required to call one.
The Committee found the "same subject" test proposed
in a current bill before the Congress
39
to be proper, and that an identical
40
wording test would make resort to the convention process exceedingly difficult.
The Committee suggested to Congress that it should require a state legislature
to list in its application all state applications in effect on the date of its
adoption whose subject or subjects it considers to be substantially the same.
Which view Congress will accept will probably depend on the position it
takes concerning the scope of a convention's authority.
(2) time limit on application
j/.t.o
41
Professor Orfield suggested that the determination of timeliness of an
application is analogous to the situation in which Congress decides if a state
has made timely ratification of an amendment,
A^
" The ABA Committee also found
a limit on the time period for application desirable.
The Committee further
expressed that the period should be short enough to accurately reflect the will
of the people at a given point in time, yet long enough to give a subsequent
A3
legislature the opportunity to reconsider.
(3) withdrawal of application
The ABA Committee addressed this issue, finding that a state should be
able to withdraw a prior application and also make application after a previous
44
refusal, since a convention should reflect a ''contemporaneously-felt need."
This Issue is analogous to the subsequent action issue in ratifications by
state legislatures, and any position Congress may take with the former should
be consistent with the latter.
Once Congress has passed on the applications and issued a call to the states
for a convention, what role does the Congress play in the convention itself?
1. mechanics of the convention
Professor Orfield concluded that matters such as location, election of delegates, and state versus national at-large representation were tiithin Congress'
45
regulation.
The ABA Committee also found that Congress had the power to set
the time, place, composition financing, and manner of selecting delegates.
How-
ever, the Committee went on to distinguish this area of control from those internal
rules and procedures which should be within the exclusive domain of the convention,
since the history of Article V "reflects a purpose 46
that the convention method be
as free as possible from congressional domination."
2. scope of the convention
Professor Orfield was an advocate of the unlimited convention:
iS Ar.rUjL.
Jt..
JL
In reality, the right of the legislature is confined to
applying for a convention, and any statement of purposes in
the states' petitions would be irrelevant as to the scope of
powers of the convention. Inasmuch as Congress issues the
call simply on the basis of the application of the state
legislatures, there would seem to be no warrant for an
attempt by Congress to limit the changes proposed. The primary and in fact the sole business of the convention would
be to propose changes in the constitution. In this sphere
the only limitation would seem to be Article Five/1''
Indeed, Orfield's only limitation was that a convention could not propose
an entirely new constitution, because Article V limits Congress to calling a
convention for "proposing amendments"; however, a convention could achieve the
same effect by amending the entire document.
48
Professor Black of Yale Law School is another supporter of the unlimited
constitutional convention concept, contending that "Article V, properly construed, refers, in the phrase "a convention for proposing Amendments," to a
convention for proposing such amendments as to that convention seem suitable
49
for being proposed."
In response to the standard argument that such a conven-
tion could then be called upon the mere receiving of applications from twothirds of the states, although some may deal with school busing, some, apportionment, and yet others concerned with abortion, Professor
Black contends that
50
a proper application must request a general convention.
He found that this
theory that conventions can be limited is a child of the twentieth century, and
these petitions are nothing but "self-serving declarations, assertions of their
5]
own power by the state legislatures.""
The ABA Committee, on the other hand, decided that if the states desired a
convention limited to a particular subject, Congress was empowered to so restrict
52
it.
After reviewing the history of the origins of the amending provision, the
Committee concluded:
[T]here is no justification for the view that Article V sanctions
only general conventions. Such an infcrpretation would relegate
145
the alternative method, the state-called convention as
opposed to the congressional method of proposing to an
"unequal" method of initiating amendments. Even if the
state legislatures overwhelmingly felt that there was a
necessity for limited change in the Constitution, they
would be discouraged from calling for a convention if
that convention would automatically have the powg^ to
propose a complete revision of the Constitution. "
Professor Van Alstyne of Duke Law School also found the notion of a mandatory general convention to be unfounded:
The notion that nothing may be considered unless everything may be considered in that same convention seems to
me a non sequitur having no basis whatever in article V.
The typical convention called under article V would surely
least be like — rather than most be like — the Convention
of 1787. The most proper use, rather than the least proper
use, of such a convention would be in contemplation of a
fairly modest change rather than a wholesale change. That
thirty-four states could be instructed by Congress that they
may not resolve a common call for a convention for the sole
purpose of considering a repeal of the sixteenth amendment
unless they mean also to consider a repeal of the other twentyfive and of all six articles as well (and to manifest that
willingness in the resolutions they submit to Congress) seems
to me the ultimate in congressional cynicism.^
The issue appears to be whether Congress may restrict proposing conventions
to a particular subject matter.
Taking into consideration the historical aspect
that this method was intended as an alternative to congressional proposal, it
seems that a convention, as a proposing body, should be no more restricted as the
Congress which may propose any amendment on any subject at any time.
As disas-
trous as the outcome of such a convention might be, to limit the convention to a
particular topic as specified in the applications would improperly be comparing
the applying states, not the proposing convention, to a proposing Congress.
I.
would also therefore agree with Professor Black that applications must request a
general convention.
A.
PROPOSAL (CONT.)
2,
BY CONGRESS
146
This method of amendment proposal has been used in proposing every successful amendment.
Only a few issues have arisen under this aspect of Article V,
the first of which was whether the President's approval was necessary once the
proposing resolution had passed in Congress.
In Hollingsworth v. Virginia,
it was urged that the eleventh amendment was void because its proposal by Congress was not approved by the President according to Article I, section 7.
Al-
though the two-thirds necessary in each house was sufficient to override any
presidential veto, it was argued that the reasons given by the President might
be sufficient to reduce the majority.
Justice Chase found no necessity in ans-
wering the argument, because, the president's approval applies only to cases of
legislation, and stated flatly that the President "has nothing to do with the
proposition or adoption of amendments to the Constitution."
56
However, there were still a few doubts and misunderstandings after liollings57
worth,
but such has not been the case in recent years.
co
In the National Prohibition Cases,
two attacks were made on the validity
of the eighteenth amendment, claiming the procedures involved in Its proposal by
Congress were improper.
The first challenge was that the proposing resolution had
not passed two-thirds of both houses.
The Court responded that "[t]he two-thirds
vote in each house required in proposing an amendment is a vote of two thirds of
the members present —
assuming the presence of a quorum -- and not two-thirds of
the entire membership, present and absent."59
The second challenge was that Con-
gress had not explicitly "deemed it necessary," as stated In Article V, to propose
the amendment.
The Court stated that this was not required, and that this necessi-
ty had not been shown in earlier amendments.
The last major issue in this area is whether Congress may withdraw an amendment once it has proposed.
Although such a situation has never arisen, Professor
Orfield has concluded that the general view is that Congress could not withdraw a
P
. 4 . f7
a proposal, because such an action would result in confusion, and Article V
limits Congress to proposing, and once done, it is through.
III.
THE AMENDING PROCESS (CONT.)
B.
RATIFICATION OF AN AMENDMENT
[The proposed amendments shall become valid] when ratified
by the Legislatures of three fourths of the several States,
or by Conventions in three fourths thereof, as the one or
the other Mode of Ratification may be proposed by the
Congress . . .
1.
BY STATE CONVENTIONS
The primary issue involved in interpreting the ratification clause is
whether it is left to the sole discretion of Congress to determine which mode
of ratification is to be used.
This question was answered in United States v.
60
Sprague,
ment.
in which the Court addressed the validity of the eighteenth amend-
It was argued that the amendment was invalid because the Congress should
have assigned the ratification to state conventions, rather than the stafe legislatures, because the amendment involved "matters affecting the l?lberty of the
citizens."
The Court found this line of thinking unpersuasive and held that
61
Congress possessed sole discretion in selecting the proper mode, of ratification.
The only time the state convention method of ratification has been used
since the ratification of the Constitution itself has been in the adoption of the
twenty-first amendment, which repealed the prohibition (eighteenth) amendment.
The number of delegates at the conventions ranged from three in New Mexico to
329 in Indiana, with only six conventions having more than 100 delegates.
All the
conventions, however, except New Mexico,
recognized Congress' superior role in
62
regulation of the convention call.
Professor Orfield has suggested some reasons for not leaving regulation of
the conventions to the state legislatures.
First, to do so would have almost the
same result as having ratification by the state legislatures which act under their
but rather to the designated ratifying bodies."
68
This case involved an
Illinois constitutional provision which required a three-fifths majority in
the legislature to pass an amendment to the federal constitution.
The ERA
passed both houses by a simple majority, but not by the required three-fifths.
The reasoning behind the referendum attempts would seem to be the desire
that the legislature reflect as accurately as possible the wishes of the
citizenry.
Another means of providing for this need for actual representation
of the electorate's view has been attempts to postpone consideration of a proposed amendment until a subsequent legislature has been elected.
Yet, as a
general proposition, the legislature existing at the time of a proposal or any
later legislature may pass on the amendment.^
On the matter of conditioning ratification to certain events or conditions,
it has been concluded that the legislature must either accept or reject unconditionally . ^
In light, of the recent experience with the proposed Equal Rights Amendment,
a major issue being discussed is whether a state legislature may change an earlier
action with respect to an amendment.
On this issue, Professor Orfield found three, schools of thought::
72
The first view is that a legislature's first action is conclusive, whether
it ratified or rejected.
This is based on the rationale that a state legislature
should be restricted to the same limits as a state convention which must disband
after it has taken action.
The second school reflects what appears to be the latest word from the Court
on the matter —
an original vote of ratification is conclusive, but one of rejec-
tion is not, unless Congress so chooses to give the rejection effect.
Miller,
73
In Coleman v.
the Court, in passing on a state legislature's ratification of the pro-
150
is.
own rules; second, If an amendment were to be unpopular, legislation creating
the conventions might be delayed; and third, the process of ratification is a
63
federal, not state, function.
In view of this criticism, it would seem that some guidelines should be
established so as to provide some uniformity and definiteness among the states'
procedures.
Perhaps we will have to wait, though, until
Congress selects
this unpopular forum of ratification for some future amendment until such
guidelines will be enacted.
B.
RATIFICATION (CONT.)
2.
BY STATE LEGISLATURES
Professor Orfield, In describing the nature of this unique, role of the
state legislatures, concluded:
The provisions of the state constitution and rules of the legislature as to the passage of statutes, bills, and other forms of
legislation are not controlling in the adoption of an amendment.
The legislature in ratifying is exercising a ministerial or constituent function; the ratifying process is equivalent to a role
call of the states. The courts have asserted that the legislature acts as a,federal agent and exclusively under the federal
Constitution.
An example of the Court's emphasis on the fact that the state legislatures
serve in a federal, rather than state, capacity in ratifying is found in Hawke v.
65
Smith, No. 1.
That case dealt with an Ohio Constitution provision which ex-
tended the right to a binding popular referendum in proposing and adopting legislation to the ratification of proposed amendments to the federal constitution.
The Court found that "ratification by a state of a constitutional amendment is
not an act of legislation within the proper sense of the word. 66
It is but the
expression of the assent, of the state to a proposed amendment."
67
A federal district court opinion, Dyer v. Blair,
Is a recent reiteration
of this concept that the ratifying responsibility is delegated "not to the states
M
JM'J
posed Child Labor Amendment, although a previous legislature had rejected it,
found the issue to be a political question, answerable only by Congress when
and if it decides whether the requisite number of states have ratified.
The
Court took this position in "accordance with the historical precedent" in which
the fourteenth amendment had been ratified, although three states which had
originally rejected later ratified after their state governments were reorganized under federal order.
The list of ratifying states also included two which
had withdrawn their earlier ratifications.
This viewpoint is also shared by Professor Emerson, Lines Professor Emeritus at Yale Law School, who made the following statement before a committee of
the Connecticut General Assembly which was considering a proposed resolution to
rescind the state's earlier ratification of the ERA.
While recognizing that
this is an issue for congressional determination, the Professor analogized the
situation to contract law:
[U]nder the amending process as set forth in the Constitution,
a state has only one function, namely to vote ratification or
to refrain from ratification. If it does vote to ratify its
powers are at an end, and there is no further action the state
can take. Such a cut-off of legal power is not unknown in
the law. If a salesman for the Encyclopedia Britannica comes
to your door you may turn him down three times; but if you
accept the fourth time you are bound by that action and you
cannot rescind.
The third school of thought on the topic is that either a prior rejection
or ratification is reversible before the requisite number of states have acted.
Orfield finds it to be "more democratic to allow the reversal of prior action.
A truer picture of public opinion at the final date of ratification is obtained."
This point of view is reflected in S.1272,''0 a bill sponsored by the former
Senator Sam Ervin of North Carolina:
Sec. 13. (a) Any State may rescind its ratification of a proposed
loi
amendment by the same processes by which it ratified the
proposed amendment, except that no State may rescind
when there are existing valid ratifications of such amendment by three-fourths of the States,
(b) Any State may ratify a proposed amendment even
though it previously may have rejected the same proposal.
Senator Ervin has justified this approach on the basis of a "universally
recognized rule of law":
[0]ne Legislature cannot tie either its own hands or
those of its seccessors with respect to subjects on
which they have the power to act. What they do today,
they can undo tomorrow, and what they refuse to do
today, they can do tomorrow.77
The third viewpoint, though "democratic" In nature, would impose such an
element of uncertainty as to keep both opponents and proponents of an amendment
constantly guessing as to the status of an amendment.
Also, such a procedure
would result in rash last-minute reversals by state legislatures of their previously well-considered actions.
Senator Ervin's reasoning that a legislature
cannot bind a successive one may not be accurate as to his own proposal, under
which a state's last legislature to act on ratification of an amendment before
the requisite three-fourths had done so would in fact bind all future legislatures to that action, being irreversible.
The first viewpoint, making a legislature's initial action final would certainly add a much-needed touch of definiteness to the process.
Also, unlike the
second alternative which would make an original vote of ratification conclusive,
but not one of rejection, the first does not "discriminate" between votes of ratification and rejection.
Indeed, legislatures would be more prone to ensure that
the amendment had been thoroughly considered before voting on its ratification.
The second alternative is not only "discriminatory," but also would result in
the same indefiniteness as to the status of an amendment's ratification as the.
YoZ
third view, only allowing reversal of rejections, not ratifications.
Therefore, for the sake of surety in this "unsure" area of the amendment
process, the first alternative, making initial actions final, would be preferred.
As to the time limitation within which the states must ratify a proposed
7R
amendment, the Court first addressed this issue in Dillon v. Gloss.
Congress
had placed a seven-year limit on the period in which the amendment had to be
ratified.^ The Court found that a reasonable time period was necessary so. as
to have a "sufficiently contemporaneous" reflection of the approval of all the
80
people,u
and that it was up to Congress to determine exactly the number of years
that would be reasonable, since "[a]s a general rule the Constitution speaks in
general terms, leaving Congress to deal with subsidiary matters
of detail as the
81
public interests and changing conditions may require . . . "
QO
In Coleman v. Miller,
the amendment in question did not have a ratifica-
tion deadline, clause, and it was argued that the thirteen years that had passed
since its proposal had caused it to lose its vitality.
After reviewing Dillon v.
Gloss, the Court declined to determine if the amount of time that had passed was
unreasonable, and suggested that such a determination was up to Congress when it
would decide whether to promulgate the amendment's adoption, and that this deci83
sion would not be subject to judicial review.
A new issue has arisen In the area of time limitation on ratification by
state legislatures as a result of the proposed Equal Rights Amendment.
The reso84
lution proposing the amendment provided for a seven-year ratification period.
As the deadline approached it appeared that the amendment would not become ratified for a lack of the requisite number of ratifying legislatures.
However, the
Congress came to the amendment's rescue and, for the first time in the history of
the amendment process, extended the ratification period another 39 months.'
jmO
This
extraordinary act. has been justified in a recent law review article/' which
contended that Congress acted appropriately in establishing a reasonable time
for ratification, applying the standards suggested in Coleman.
In that case
the C6urt cited factors such as extent of publicity given a proposal and the
activities of both the public and the state legislatures to be used in determining "reasonableness."
The article contended:
Despite the passage of nearly seven years without final
ratification, the ERA is far from being a dead issue.
Media coverage of the ERA continues to be extensive.
Vigorous public debate over the amendment testifies to
its vitality. Moreover, state legislative action on
the amendment is anything but stagnant.
The article also pointed out that the conditions which gave rise to the amendment still existed at the time of the extension, another factor suggested in
Coleman.88
However, did not the act of extension undermine a prior determination of
reasonableness by the Congress when it set the original deadline?
The article
pointed out that this was not the situation here, because the Congress In its
debates over the original deadline did not consider any factors of reasonableness as suggested in Co1email; rather its only purpose wa3 to prevent the amendment from "haunting" Congress for years to come.
IV.
89
LIMITATIONS ON THE SCOPE OF THE FEDERAL AMENDING POWER
Article V contains two express restrictions.
The first forbade any "amend-
ment which may be made prior to the year one thousand eight hundred and eight,
[which] shall In any manner affect the first and fourth clauses in the ninth section of the first article."
The first clause prohibited Congress from interfering
with the slave trade, allowing only a maximum tax on each slave; the fourth clause
prohibited the levying of direct taxes which are not apportioned.
By Article V's
own terms, the restriction on amending these clauses has long expired.
The second
restriction, which is still in force, expresses "that no State, without its
Consent, shall be deprived of its equal Suffrage in the Senate."
Is there an implied limitation on the scope of the amending power that
forbids amendments which are legislative in character?
Professor Orfield found
that such a restriction probably does not exist:
The framers of the Constitution seem to have contemplated
amendments of a legislative nature when they wrote in the
twenty-year limitations as to the slave trade and the imposition of direct taxes without apportionment.
In the National Prohibition Cases,
91
the validity of the substance of the
eighteenth amendment was challenged because it was not concerned with the powers
92
or organization of government, but was merely a police regulation.
The Court
did not take the opportunity to challenge this argument, but merely 3tated that
the amendment was "within the power to amend reserved by Article V of the Constitution.
However, the Solicitor General did argue the point, asserting that
94
the propriety of the nature of the amendment was a political question,
and
furthermore, that "[i]t has always been understood that there Is no limitation
upon the character of amendments which may be adopted, except such limitations
as are imposed by Article V itself." 95
Moreover, Professor Orfield pointed out that if the eighteenth amendment
was invalid as being legislative in nature, so would be the thirteenth amendment
which legislated slavery out of existence and the fourteenth amendment which legislated In the areas of "citizenship, the exclusion of rebels from office, and the
96
repudiation of debts of rebelling states."
V.
CONCLUSION
Article V is in great need of definitive interpretation by both the Court and
Congress.
If the ERA is ratified, there will certainly be many challenges to its
validity.
The Court would therefore have an opportunity to address the justicia-
bility issue, the process of ratification by state legislatures, including the
rescission issue, and the ratification deadline extension.
Several bills were
introduced into Congress concerning the right to rescind and earlier ratlfica97
tion, but they never made it out of the House Committee on the Judiciary.
In light of the recent applications of some states to call a convention for
the purpose of proposing an amendment which would put Congress on a "balancedbudget" operating basis, many questions concerning the convention process, especially as to Its proper scope, will be asked.
Several bills have been recently
introduced into Congress which provide for procedures in regulating a constltu98
tional convention,
Judiciary.
but have remained in the House and Senate Committees on the
If this convention is called and the amendment is proposed and subse-
quently ratified, the Court would likely have the opportunity to address the
issues presented by this aspect of the amendment process.
FOOTNOTES
1.
The terra "justiciable" is defined as "proper to be examined in courts of
justice. Subject to action of court of justice." Black's Law Dictionary
1004 (4th ed. 1968).
=
=
The other counter-issue involved in this section is whether the subject is
a "political question." This term i@ defined as "questions of which the
courts of justice will refuse to tale cognizance, or to decide, on account
of their purely political character, or because their determination would
involve an encroachment upon the executive or legislative powers." Id. at 1319.
2.
3 U.S. (3 Dall.) 378 (1798).
3.
Id_. at 380.
4.
L. B. Orfield, The Amending of the Federal Constitution 7 (1942).
But cf.
Note, Constitutional Amendments - The Justiciability of Ratification and
Retraction, 41 Tenn. L. Rev. 93, 96-97 (1973). Found this assumption to be
the result of a too literal reading of the case, not giving
proper emphasis to the particular circumstances in which the assumption of justiciability was made.
Since the litigation focused on the first amendment to be
adopted individually, the justiciability issue was ripe for adjudication in view of the precedential Implications involved. Perhaps
of greater moment, however, was the contemporaneity of the litigation with members of the adoption of the Federal Constitution.
Various members of the Court had been influential forces in the
political scene that had given life to the new Constitution and
the fact that men of such intimate association with those nascent
constitutional concepts had implicitly assumed the justiciability
of amendment issues would seem to be of significant import in the
instant determination.
5.
See Luther v. Borden, 48 U.S. (7 How.) 1 (1849); White v. Hart, 80 U.S. (13 Wall.)
646 (1871).
6.
See Note, supra note 4, at 99.
7.
253 U.S. 221 (1920).
8.
Id. at 227.
9.
253 U.S. 350 (1919).
a t
10.
3 8 6
-
11.
Id.
12.
Id. at 381. See also Note, supra note 4, at 100, n. 40.
"Reluctance on the part of the Court to face the issue was
seemingly intentional since the Solicitor General, In
;o (
-1 rryM
J
h-
amend the ARticles of Confederation, which lacked reasonable and effective provisions for amendment, whereas the Constitution does not suffer
from such infirmity."
Rhodes, A Limited Federal Constitutional Convention., 26 U. Fla. L. Rev. 1,
11 (.1973).
"
~
~
==-=-—
33.
There have been over 350 applications for a constitutional convention.
Among these, 30 applications were made for a constitutional convention to
deal with polygamy, 54'to remove apportionment cases from federal jurisdiction, 42 to repeal the Sixteenth Amendment, and 75 dealing with direct
election of senators.
ABA Special Constitutional Convention Study Committee, 60-61 (1974)
(hereinafter cited as ABA Study).
34.
Id. at 12.
35.
Id. at 17. Once Congress has been satisfied that these conditions have
been met, must Congress call a convention? The Study goes on to find that
this duty is mandatory; its "duty is clear — it 'shall' call a convention."
Id. Professor Orfield also believed Congress has an affirmative duty to
call, relying on the history of Article V.
L. B. Orfield, supra note 4, at 40 n. 9.
36.
L^ B. Orfield, supra note 4, at 41.
37.
_Id. at 42.
38.
ABA Study, supra note 33, at 11.
39.
S.1272, 93d Cong., 1st Sess. passed the Senate, but not the House.
40.
ABA Study, supra note 33, at 18.
41.
Id. at 31.
42.
L. B. Orfield, supra note 4, at 42.
43.
ABA Study, supra note 33, at 31-32.
44.
Ld. at 33.
45.
L. B. Orfield, supra note 4, at 43, citing Dillon v. Gloss in footnote:
"As
a rule the Constitution speaks in general terms, leaving Congress to deal
with subsidiary matters of detail . . . and Article V is no exception."
A r~,r>
10&
arguing for the appellees, specifically alleged nonjusticiability on the basis of Borden and its progeny."
13.
256 U.S. 368 (1921).
14.
Id_. at 376.
15.
258 U.S. 130 (1922).
16.
Id. at 137.
17.
282 U.S. 716 (1931).
18
L. B. Orfield, supra note 4, at 18.
'
19.
307 U.S. 433 (1939).
20.
It has been suggested that, the precedential value of this congressional
action is undermined by the facts that there were 30 states listed on
the certificate showing official promulgation, two more states having
ratified soon after Congress's action, but before the certificate was
drawn up, and that many of the states were threatened with not being
readmitted to the union if they failed to ratify. See Note, supra
note 4, 102-03.
21.
n. 19, supra, at 450.
22.
Id. at 454.
23.
Id. at 459.
L. B. Orfield, supra note 4, at 26.
25.
369 U.S. 186 (1962).
26.
_IcL at 217.
27.
Id.
28.
395 U.S. 486 (1969).
29.
Id. at 548.
30.
390 F. Supp. 1291 (N.D. 111., E.D. 1975).
31.
ld_. at 1302.
32.
"Arguably, since the original 1787 Convention was not limited to the specific
subject areas that were ostensibly the reasons for convocation, precedent for
wide-open article V conventions does exist. However, any possible precedential value is weakened by the fact that the 1787 Convention was called to
A
46.
Id. at 19.
47.
IcL_ at 45.
48.
Id. at 44.
49.
Black, Mending the Constitution: A Letter to a Congressman, 82 Yale L. J.
189, 196 (1972).
=
=r-=
50.
Id. at 198-99.
51.
Id. at 203.
52.
ABA Study, supra note 33, at 11.
53.
Id. at 16.
54.
Van Alstyne, Does Article V Restrict the States to Calling Unlimited Conventions Only? A Letter to a Colleague. 1978 Duke L. J. 1295, 1306 (1978).
55.
3 &.S. (3 Dall.) 378 (1798).
56.
Id. at 380.
57.
"In 1803 a motion in the Senate to submit the Twelfth Amendment to the
President was defeated. In 1861 the President signed the Corwin amendment
without anyone's protesting. President Lincoln inadvertently signed the
Thirteenth Amendment, but immediately notified Congress, and the Senate
adopted a motion that his approval was unnecessary and not a precedent."
L. B. Orfield, supra note 4, at 50 n. 30.
58.
253 U.S. 350 (1919).
59.
Id. at 386.
60.
282 U.S. 716 (1931).
61.
Id. at 730.
62.
L. B. Orfield, supra note 4, at 59.
63.
Id. at 58.
64.
Id. at 63.
65.
253 U.S. 221 (1920).
*
rr
L O 0
is.
66.
Id. at 229.
But cf. L. B';_Orfield, supra note 4, at 69.
A legislature may call for an "advisory vote" before finally acting,
so long as it does not have any binding force.
67.
390 F. Supp. 1291 (N.D. 111., E.D. 1975).
68.
Id. at 1308.
69. _Id.
70.
L. B. Orfield, supra note 4, at 63.
In the cases of the Fourteenth
and'Fifteenth Amendments attempts were made "to provide that ratification
should only be by legislatures elected subsequently to the proposal by
Congress."
Id. at 63-64 n. 83.
71.
"When the Constitution was ratified, serious attempts were made to impose
conditions, but it was objected by such leaders as Hamilton and Madison
that this would be equivalent to rejection, and as a result each state
accepted the Constitution with no reservations, the obligation to adopt
the Bill of Rights being x^holly moral." Id_. at 68.
72.
_Id. at 70.
73.
307 U.S. 433 (1939).
74.
S. S. Freedman & P. J. Naughton, ERA: May a State Change its Vote? 102 (1978).
See, also Note, supra note 4, at 94-96.
(Excerpts from a statement before the Government Administration and Policy
Committee of the Connecticut General Assembly on the proposed resolution to
rescind Connecticut's ratification of ERA (16 March 1977),
75.
L. B. Orfield, supra note 4, at 72.
76.
See note 33, supra.
S. S. Freedman & P. J. Naughton, supra note 74, at 85.
(opinion of Sen. Sam
J. Ervin, Jr. on 26 Feb. 1977).
78.
256 U.S. 368 (1921).
79.
Prior to 1917, none of the 21 amendments proposed by Congress contained a
ratification deadline. 17 were ratified within four years; the remaining
four never received sufficient ratifications.
10 Rutgers-Camden L. J. 91, 97 (1978).
80.
256 U.S. 368, 376 (1921).
3.61
81.
Id.
82.
307 U.S. 433 (1939).
83.
Id. at 454.
84.
Seven-year time limits were incorporated into the texts of the Eighteenth,
Twentieth, Twenty-first, Twenty-second and into the resolving clauses of
the Twenty-third, Twenty-fourth, Twenty-fifth, and Twenty-sixth. Amendments. See note 79, supra, at 104 n. 78.
85.
H.J.R. Res. 638, 95th Cong., 1st Sess.. (1977).
86.
See note 79, supra, at 91.
87.
Id. at 105.
88.
Id. at 105-06.
89.
Id. at 106-08.
90.
L. B. Orfield, supra note 4, at 104.
91.
253 U.S. 350 (1919).
92.
Id. at 361-62.
93.
Id. at 386.
94.
Id. at 381.
95.
Id. at 382.
96.
L. B. Orfield, supra note 4, at 104.
97.
H.R. 9812 and H.R. 10376, 95th Cong., 1st Sess. (1977). H.R. 1664, H.R.
1964, H.R. 2274, and H.R. 2587, 96th Cong., 1st Sess. (1979).
98. S. 3, S 1710, H.R. 84, H.R. 435, 96th Cong., 1st Sess. (1979).
162