150 should be treated as null and void. The House approved such a measure,72 which, however, died on the Senate Calendar after being reported adversely by the Judiciary Committee. 73 Earlier in the session the upper House had voted to postpone indefinitely a joint resolution of similar tenor.74 Looking to the merits of the issue, there appears to be nothing in the language or policy of Article V to preclude ratification at any time, irrespective of prior disapproval. The Constitution speaks only of ratification by the states: there is no reason why an unfavorable vote by one legislature should bar con. trary action by its successors. The teaching of Dillon v. Gloss that ratification should "reflect the will of the people in all sections at relatively the same period..." lends support to the view that later retraction should also be taken into account. Likewise, if change of public sentiment is relevant, the formal action of a state withdrawing its prior consent is pertinent. What weight should be given this relevant fact would, however, be for Congress to determine. A long-mooted question concerning the right of a state to require that action on a proposed amendment be delayed until a new legislature has been elected was answered in Leser v. Garnett.75 The fact that the Constitution of Tennessee required such postponement was cited in support of the argument that the purported ratification of the Nineteenth Amendment by the Legislature of that State was a nullity. Instead, the Supreme Court held that this constitutional provision was of no effect, since the power to act on a proposed amendment to the Federal Constitution is derived from the latter document. Procedure for Ratification 76 When a constitutional amendment is before a state for consideration, who. constitutes the "legislature" by which its will is to be expressed, and what rules govern the proceedings? It was decided in Hawke v. Smith that the term "legislatures" as used in Article V still means, as it did in 1789, "the representative bod[ies] which... [make] the laws of the people."" It therefore does not include the electorate in states where the popular referendum has become a part of the legislative process, and approval by the people on a referendum vote cannot be made a condition of ratification. Similarly, it has been established by practice, with the implied approval of the Supreme Court, that legislative resolutions ratifying proposed amendments to the Federal Constitution are not subject to gubernatorial veto. In Lesser v. Garnet, it appeared that the Governor of Tennessee had not certified the ratification of the Nineteenth Amendment to the Secretary of State. The Supreme Court held, nevertheless, that the Amendment had been validly ratified, saying "As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him. . . .' 1 78 The Constitution is silent concerning the procedures to be followed by state legislatures in acting on proposed constitutional amendments, and Congress has never undertaken to supply the omission. In 1869, to be sure, joint resolutions for this purpose were presented in both Houses of Congress but did not pass in either." The resolution introduced into the House of Representatives would have required each branch of a state legislature to proceed to a consideration of a 12 Id. at 5356. 78 CONG. GLOBE, 41st Cong., 3d Sess. 1381 (1871). 74 CONG. GLOBE. 41st Cong., 2d Sess. (1869) id. at 3971 (1870). 75 258 U.S. 130, 137, 42 S. Ct. 217, 66 L. Ed. 505 (1922). Massachusetts passed a law in 1920 which declared it "to be the policy of the commonwealth that the general court, when called upon to act upon a proposed amendinent to the federal constitution, should defer nction until the opinion of the voters of the commonwealth has been taken ." It provided further that if an amendment is not ratified by the session of the general court to which it is first submitted, it shall be submitted to the people at the following state election. Mass. ANN. LAWs c. 53. § 18 (1946). 7253 U.S. 221, 40 S. Ct. 495, 64 L. Ed. 871 (1920). " Id., 253 U.S. at 227. 7258 U.S. 130, 137, 42 S. St. 217, 68 L. Ed. 505 (1922). The effect of a gubernatorial reto was called into question in connection with the adoption of the Twelfth Amendment. The Governor of New Hampshire vetoed the resolution of that State's Legislature to ratify the proposal. If effective, ratification by New Hampshire would have brought the total of consenting states to the necessary three-fourths. The amendment was not proclaimed, however, until another state had ratified, and the proclamation did not include New Hampshire as one of the ratifying states. Myers, op. cit. aupra note 46. nt 34. TCONG GLOBE, 41st Cong., 1st Sess. 75, 102, 334 (1869). The House resolution bore a strong resemblance to the act passed in 1866 (14 STAT. 243) requiring state legislatures to meet at an appointed day and to proceed as therein directed to elect a United States Senator. 151 pending amendment on the sixth day of any regular or special session, and to continue to meet until final action was taken on the amendment. A proposed change was to be deemed ratified if it received the vote of a majority of the members elected to each house. Whether such a measure is within the power of Congress incident to the submission of amendments is doubtful. A still unsettled question which has arisen from time to time is whether provisions of state constitutions defining a quorum, prescribing the majority necessary for the enactment of legislation, or regulating the conduct of legislative business are applicable to ratification of amendments to the Federal Constitution. In 1871, the Indiana Senate voted to rescind that State's "pretended ratification" of the Fifteenth Amendment, on the ground, among others that this action had been taken by less than a quorum of each house of the state legislature as defined by the state constitution. More recently, the purported ratification of the Child Labor Amendment by at least two states was clouded by uncertainty as to the effect of state constitutional provisions governing the passage of a local law. The Governor of Illinois certified to the Secretary of State that this Amendment had been ratified by the Illinois Legislature, although the resolution to that effect had been adopted in the Senate by less than a majority of all members elected thereto, as required for the enactment of legislation." On the other hand, the ratification of this proposal by Kansas was valid only if the provision of the state constitution authorizing the Lieutenant Governor to cast a deciding vote applied to the ratification of an amendment." Since proposed amendments are submitted to the state legislatures and not to the people it would seem, on principle, that restrictions imposed by the people, in the state constitution, on the adoption of legislation, should not be binding with respect to the performance of this federal function if the legislature chooses to adopt other rules. But in the absence of special rules sanctioning a different procedure, by what authority can it be said that proceedings which do not conform to the requirements for ordinary legislation constitute the action of the state legislature within the sense of Article V? 83 As long as the Supreme Court adhered to the position taken in Leser v. Garnett that official notice to the Secretary of State that a State had ratified an amendment "was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts," questions as to the regularity of state action were of little more than academic interest. But in Coleman v. Miller and Chandler v. Wise the Court, in effect, closed the door to judicial determination of these issues. In the former it held that the legal consequences of a previous rejection of an amendment by a state legislature, and of the lapse of time since the submission of the proposal, were political questions which should be resolved by Congress rather than by the courts. Being equally divided on the point, it did not decide whether the right of a Lieutenant Governor to cast a deciding vote was a justiciable issue. Although this case left open the possibility that some questions might still be found to be justiciable at some stage, the opinion in Chandler v. Wise indicates that even those questions might cense to be cognizable by a court before it had an opportunity to pass upon them. There citizens and taxpayers sued to restrain the Governor of Kentucky from certifying an allegedly void resolution of the state legislature purporting to ratify the Child Labor Amendment. Before being served with summons in this suit, the Governor forwarded a certified copy of the resolution to the Secretary of State by mail. The Supreme Court dismissed a writ of certiorari on the ground that while the state court had jurisdiction in limine, after the Governor had transmitted the notice of ratification. "there Was no longer a controversy susceptible of judicial determination." In a concurring opinion in the Coleman case, four justices expressed the view that the process of amendment "is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point."" Even without this invitation, the uncertainty as to what, if any, questions the courts would entertain in the future would constitute a strong inducement to Congress to occupy the whole BO CONG. GLOBE, 41st Cong., 3d Sess. 1250 (1871). JOURNAL OF THE ILLINOIS STATE SENATE, 58th General Assembly 1751 (1933). 8 Coleman v. Miller. 307 U.S. 433, 446. 59 S. Ct. 972, 83 L. Ed. 1385 (1939). Leser V. Garnett, 258 U.S. 130, 137. 42 S. Ct. 217. L. Ed. 505 (1922). 84 307 11.8. 474, 59 S. Ct. 992, 83 L. Ed. 1407 (1939). Id.. 307 U.S. at 478. Coleman v. Miller, 807 U.S. 433, 459, 59 S. Ct. 972, 83 L. Ed. 1385 (1939). 152 field. And once it has done so, it is extremely improbable that the Supreme Court would undertake to eject it. Nor is it likely that Congress would exhibit the same reluctance to examine the regularity of state action as has the Court. Moreover, there appears to be no reason why all decisions concerning the ratification of an amendment could not be taken by a simple majority vote. Since such rotes would, on the surface at least, relate merely to questions of fact and of law raised by objections to the validity of purported ratification, rather than to the wisdom of the amendment, it would be straining a point to say that they were governed by he phrase “whenever two thirds of both houses shall deem necessary." No other provision of the Constitution would require more than a simple majority in this situation. The only legislative precedent is the resolution adopted in 1868 declaring the Fourteenth Amendment to be a part of the Constitution. In the House of Representatives, 127 members voted in the affirmative. 33 in the negative, with 55 not voting. The yeas and nays were not taken in the Senate. The Congressional Globe simply recites: "The resolution was adopted." IV. No amendment to the Constitution has been adopted since Coleman v. Miller was decided. Any estimate of its practical results lies, therefore, entirely in the realm of speculation. Where an amendment is sharply controversial, there is, a strong possibility that the issue will be fought out all over again in the Halls of Congress after three-fourths of the states have given their assent. To this extent the process of changing the Constitution may become still more difficult than it has been in the past. In view of the decision in Dillon v. Gloss that an amendment takes effect on the date of the final ratification required for its adoption, rather than on the date when it is proclaimed," there is a further possibility of a period of serious confusion and uncertainty while the validity of ratification is being determined. To leave the way open for Congress to bury a proposed amendment even after three-fourths of the states have approved it seems to be consonant with the purpose of the framers to permit changes in the fundamental law only when there is a strong preponderance of contemporaneous opinion in favor of it. If a majority of both Houses of Congress felt compelled for any reason to declare that a proposed amendment had not been duly ratified, that action would raise grave doubts as to whether the amendment had the requisite support in public opinion at that time. But if the lawmakers are to exercise this function some way must be found to minimize the confusion until the issue is decided. The ruling that an amendment becomes effective the moment the thirty-second state ratifies it should be repudiated. And provision should be made for determining when Congress has said its final word on the subject. Although it has been suggested that in proclaiming an amendment, the Secretary of State speaks with the authority of Congress, no one can say whether such a proclamation would preclude subsequent inquiry into the validity of ratification, or if not, whether there is any time limit on the power of Congress to reopen the matter. In 1930, eleven years after the Eighteenth Amendment was ratified, Representative La Guardia of New York offered a joint resolution to declare that amendment inoperative on the ground that ratification of the original resolution was ineffective to make the amendment a permanent part of the Constitution." But as this resolution was never acted upon the question remains unanswered. One method of handling the problem might be for Congress to repeal the present statute authorizing the Secretary of State to proclaim the adoption of an amendment immediately upon receipts of official notice of the requisite ratifications. Instead, he might be directed to transmit such evidence to Congress when three-fourths of the states have purported to ratify. To avoid a stalemate, it might be desirable to provide that unless Congress directs otherwise with a designated period, the Secretary should issue, at the end of such period, a → CONG, GLOBE, 40th Cong., 2d Sess. 4206 (1868). Id. at 4266. * 256 U.S. 368, 376. 41 S. Ct. 510. 65 L. Ed. 994 (1921). 72 CONG REC. 1761 (1930). This resolution was referred to the Committee on the Judiciary and was never reported. For a statement of the author's reasoning, see note 50 supra. 153 proclamation, which should be deemed conclusive, declaring that the amendment had been adopted. In any event, having been given virtually complete responsibility in the premises, it is up to Congress to provide some procedure for a prompt definitive decision as to the validity of the ratification of any amendments it proposes. Edward S. Corwin [72 Yale Law Journal 957 (1963)] THE PROPOSED AMENDMENT OF ARTICLE V: A THREATENED DISASTER (By Charles L. Black, Jr.†) THREE proposals for amending the Constitution have recently come from the Council of State Governments, and are being propelled down the never before used alternative route of article V-the route via state applications to Congress for the calling of a convention.' Of the three, one (which would establish a Court of the Union, composed of the state Chief Justices in all their multitude, to meet on extraordinary occasions to review judgments of the Supreme Court)' is so patently absurd that it will probably sink without trace. Another, eradicating' Baker v. Carr' concerns a special subject, and hence does not generally affect the federal power or the whole shape of the Union. The third is of supreme interest to students of constitutional law. Its adoption would effect a constitutional change of a higher order of importance than any since 1787-if one excepts (and that only doubtfully) the de facto change implicit in the result of the Civil War. It is wonderful that this proposal-which has already commended itself to a number of state legislatures-has been so little noticed. This is doubtless because the proposed change is in procedure. But a change in the procedure of constitutional amendment-unless it is purely formal, and this one is not-is a change in the distribution of ultimate power. The proposed article V, if adopted, would make it easily possible for a proportion of the American people no greater than that which supported Landon in 1936 to impose on the rest of the country any alteration whatever in the Constitution. The people who could do this would be, by and large, those inhabitants of the less populous states who reside in the districts that are over-represented in their own state legislatures. "Unto him that hath it shall be given." This component of the population-to which we are all accustomed to conceding a veto power on constitutional amendment, as on many other matters-would under the proposed plan have something very different from a veto power. It would have the affirmative power of forcing its will on the majority, as to anything which may be the subject of constitutional amendment-that is to say, as to everything. Such a proposal ought to be scrutinized with the very greatest care, and the same careful scrutiny should be given to the method by which its proponents hope to coerce its submission to the state legislatures for ratification as an amendment. THE PROPOSED NEW ARTICLE V If this proposal were to win its way through, article V would read as follows: "The Congress, whenever two-thirds of both Houses shall deem it necessary, or, on the application of the Legislatures of two-thirds of the several states, shall propose amendments to this Constitution, which shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of threefourths of the several states. Whenever applications from the Legislatures of Henry R. Luce. Professor of Jurisprudence, Yale Law School. 1 All are set out in full, with an account of their espousal by the Council, in Amending the Constitution to Strengthen the States in the Federal System, 36 STATE GOV'T 10 (1963). 2 Id. at 13-14. By abolishing all substantive federal guarantees against malapportionment, thus making netlon by Congress as well as by Court Impossible, and by withdrawing the subject entirely from federal judicial power. 36 STATE Gov'T at 12. 4369 U.S. 186 (1962) (fourteenth amendment claim against state legislative malapportionment held within federal judicial jurisdiction). According to Information informally received, the legislatures of Arkansas, Florida, Missouri, Oklahoma, Kansas, and Wyoming have already passed the Resolution set out in text accompanying note 13 infra. În about an equal number of states, one house has passed it. 154 two-thirds of the total number of states of the United States shall contain identical texts of an amendment to be proposed, the President of the Senate and the Speaker of the House of Representatives shall so certify, and the amendment as contained in the application shall be deemed to have been proposed, without further action by Congress. No State, without its consent, shall be de prived of its equal suffrage in the Senate."" It may be convenient to the reader to have set out the text of the present article V: "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, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of threefourths of the several States, or by Conventions in three-fourths thereof, as the oue or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." The proposed plan,.it will be seen, abolishes the (never used) "convention" way of amendment, and put in its place a method wholly under the control, as to substance and procedure, of the state legislatures. It does this by making it mandatory that Congress submit for ratification any amendment called for by the legislatures of two-thirds of the states, and by simultaneously taking away Congress' power to elect the state convention mode of ratification. At present an amendment may be passed (and all have actually passed in this way) if two-thirds of each national house wants it, and if it is ratified by threefourths of the states in the manner chosen by Congress. One might also pass if (on proper application of two-thirds of the states) a convention, summoned by Congress and having such structure as Congress thought wise to give it, proposed the amendment, and if it were then ratified in the manner chosen by Congress. Along the new route opened by the proposed article V, Congress would control neither substance nor procedure. Three-fourths of the state legislatures, without the consent of any other body, could change the presidency to a committee of three, hobble the treaty power, make the federal judiciary elective, repeal the fourth amendment, make Catholics ineligible for public office, and move the national capital to Topeka. These are (in part at least) cartoon illustrations. But the cartoon accurately renders the de jure picture, and seems exaggerated only because we now conceive that at least some of these actions have no appeal to anybody. Some amendments-e.g., something like the Bricker Amendment would be very likely of early passage. At present the main dangers would be to civil and political rights, to national conduct of foreign relations, and to the federal taxing power. But (particularly since the proposed change would be absolutely irreversible, thirteen states being enough to block it reversal) the cartoon does not exaggerate the possibilities of the long future. A country in which the large majority would have to dread and sometimes submit to constitutional innovations appealing only to a minority could not call itself, even poetically, a democracy, and the possible teusions between consensus and Constitution would be dangerous in the extreme. At present when an amendment passes the House and the Senate by two-thirds there is fair ground for the inference that there is national consensus upon it; at least the means of ascertaining that crucial fact, though rough, are fairly well adapted to the end. If the national convention method, under the present article V, were ever to be used, Congress, in setting up the convention, could ensure that it be so representative as to be likely to express a national consensus. Congress even retains control over the ratification process; if the state legislatures were in its view to come to be dangerously unrepresentative, Congress could provide for ratification by state conventions so chosen as accuratedly to reflect the views of each state's people. Properly used, the present article V can ensure that no constitutional change be effected which is disliked, deplored, or detested by a distinct majority of the American people. What is the situation under the proposed new article V? Here one must talk numbers-even statistics of a rough kind. Let us note first that the thirty-eight least populous states, whose legislatures could under the proposed article V repeal • 36 STATE GOV'T 11-12 (1963); see text accompanying note 13 infra. 7 U.S. CONST. art. V. |