CHAPTER 10

EXPRESS AND IMPLIED LIMITATIONS CONTAINED IN THE CONSTITUTIONAL INSTRUMENT

A question vigorously debated about the time of World War I concerned the limits-both expressed and implied-imposed by the Constitution itself upon the subject matter of proposed amendments.' It will be observed that, by article V, certain amendments to the Constitution were expressly prohibited, namely, (1) those relating to the slave trade, and (2) those which would deprive a State, without its consent, of equal suffrage in the Senate. Article V provides:

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.

Article V thus contains two express restrictions upon things which might be accomplished by amendment. One of these restrictions expired in 1808, and the other is still in force.

In addition to the express restrictions, it has been argued by reputable writers that there are further limitations implied by the very nature of the instrument itself which are intended to preserve and perpetuate our union and its republican form of political government. These implied limitations are to be found in the instrument when read as a whole and in particular in the 9th and 10th amendments which reserve to the sovereign States those powers which were not expressly delegated to the Federal Government. Police powers and the right. of local self-government are cited as examples of powers forever reserved to the States.

It had been argued that the 15th amendment was unconstitutional because it attempted, against the will of the States which did not ratify it, to invade the field of local self-government and fix the composition of the several electorates. Similarly it had been urged that the adoption of the 18th amendment was an unconstitutional exercise of the amending power since it sought to bring within Federal control a matter, which, under the Constitution as originally adopted, was intended never to be withdrawn from State control. The amendment, it was contended, constituted an addition to the Constitution rather than a revision of a subject already incorporated in that instrument, and such a graft upon the Constitution destroyed its essential character as it was originally agreed to. The 19th amendment, on woman suffrage, was objected to upon the grounds that it expanded the proportions of the electorate of the sovereign several States, destroying their autonomy."

All of these problems, of course, have long since been decided by various decisions of the United States Supreme Court. It has always upheld the validity of the present amendments to the Constitution. In fact, by the time Leser v. Garnett' was decided (1922), the Court dismissed the argument that the character or subject matter of amend

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ments is intrinsically limited by the Constitution itself with only summary comment. It stated:

The first contention is that the power of amendment conferred by the Federal Constitution and sought to be exercised does not extent to this amendment, because of its character. The argument is that so great an addition to the electorate, if made without the State's consent, destroys its autonomy as a political body. This amendment is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid, although rejected by 6 States including Maryland, has been recognized and acted on for half a century. See United States v. Reese (92 U. S. 214), Neal v. Delaware (103 U. 8. 370), Guinn v. United States (238 U. S. 374), Myers v. Anderson (288 U. 8. 368) (p. 136).

When the United States Constitution was promulgated it was necessary, in order to create an effective central Government, that some of the powers exercised by the State governments be transferred to the central government. From the very nature of things, the central government was better suited, in certain situations, to exercise powers for all the States which the States, acting individually, could not properly do for themselves. This end could not be accomplished except by the surrender, on the part of the States, of some of their powers. The whole scheme of Government became then a distribution of powers between the central government and the Statesdeterminations were made as to what powers were to be delegated to the Federal Government and what powers were to be reserved to the States.

It is reasonable to assume that the framers of the Constitution divided the powers of government between the States and the Federal Government in a manner they then believed to be necessary. They recognized, however, that as time went on, experience might show that the Constitution could be improved by changing the distribution of powers as then made. If it had been intended that none of the powers then reserved should ever be taken from the States, language undoubtedly would have been used to express such an intent. However, just the opposite took place. At the time article V was under consideration at the Constitutional Convention, a provision was twice proposed that no State, without its consent, should "be affected in its internal police" and it was twice rejected by the Convention. Judged by both the language rejected and the language finally employed in article V, the true intent would seem to have been that there could and would be changes in the distribution of powers and therefore that consideration could be given to matters or subjects not then enumerated in the Constitution.

This conclusion is in accord with actual practice. Amendments since the adoption of the. Constitution have been on many subjects. Some have taken from the States power theretofore reserved to them, while others have curtailed the power of the Federal Government. Slavery, for example, was originally a matter solely of State concern subject to the police powers of the States. The intent to continue State control was, in fact, expressly provided for in article V preserving the safeguards of this control to the States until 1808 as against any amendment which could have been made. Even after 1808, slavery continued a matter of State concern. However, when the time came that the sentiment of the people demanded that slavery should no longer exist, the desired end was accomplished through the 13th amendment.

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FEDERAL CONSTITUTIONAL CONVENTION

The 14th amendment invaded previously reserved rights by divesting the States of their power to legislate with respect to the individual rights of their citizens where before they had such power. The 15th amendment infringed on State power with relation to voting, and restrains the right of States to regulate suffrage not only as to national elections, but also to internal elections. The 19th amendment on women suffrage also invaded the political autonomy of the States by increasing the number of voters by roughly 100 percent.

The process of amendment has not been a one-way street, however. Amendments have also been adopted limiting the power of the Federal Government, the most notable examples being the first 10 amend

ments.

In summary it may be said that because of the very nature of things, almost any amendment that could be adopted would take either from the States or from the Federal Government some of the powers belonging to them respectively under the original Constitution. In addition, there is nothing to indicate an intention that amendments should be confined to one subject matter or another. The history of the amendments already adopted and even those which were not adopted but were considered, show that all manner of subjects have been entertained.

Going from implied limitations to express limitations, it will be recalled that article V contained 2 exceptions to the amending powers; 1 was temporary (on slavery and expired in 1808), and 1 permanent (equal suffrage in the Senate). The enumeration of these exceptions in our fundamental law clearly shows that our Founding Fathers intended that the subject matter of these provisions was not to be changed.

It is, of course, a well-recognized rule of construction that an earlier legislative body cannot bind a later legislative body and, therefore, the framers of the Constitution at the Convention of 1787 could not bind the hands of the States and Congress if they called a constitutional convention today. In the light of this rule, it would seem at first blush that the Founding Fathers either wrote into article V a provision that could not be binding, or, if binding, one that could never be changed-even by the people where ultimate power lies. The answer, however, can be found in the clause itself. It does not prohibit change in the representation of a State in the Senate absolutely. It only prohibits change where the State or States concerned have not consented. It reads:

44 * and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

It will be recalled that amendments to the Constitution generally need only be ratified by the legislatures of three-fourths of the States. In other words, amendments, when three-fourths of the States have approved them, become part of the Constitution and bind all of the States even those which rejected ratification. However, in connection with the subject of equal State suffrage in the Senate, the provision quoted above goes further and requires not only ratification by threefourths of the State legislatures, but also the consent of the States concerned. It is inconceivable that any State, especially the smaller States, would ever consent to the abolition of equal suffrage in the Senate of the United States. but even if such a circumstance did come

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about, the present restrictive clause would not bar such a change in the Constitution once consented to by the State or States concerned. Once consented to, the prohibition would no longer exist.

CITATIONS

National Prohibition Cases, 253 U. S. 350 (1920), concerning the validity of the Eighteenth Amendment to the United States Constitution.

See Willoughby, The Constitutional Law of the United States (2d ed.; 1929), I, 958.

Machen, Is the Fifteenth Article Void? (1910), 23 Harvard Law Review 100; Neal v. Delaware, 103 U. 8. 370 (1880).

Marbury, The limitations Upon the Amending Power (Dec. 1919), 33 Harvard Law Review, p. 223. See also, for contention that state autonomy and reserved powers may not be altered, Curtis, Constitutional History of the United States (1897), II, 100; McCulloch v. Maryland, 4 Wheat. 316, 403 (1819); Collector v. Day, 11 Wall. 113, 124 (1870); Gordon v. United States, 117 U. 8. 607, 706 (1884).

Fifteenth Amendment, by Neal v. Delaware, 103 U.8.370 (1880); Eighteenth Amendment by National Prohibition Cases, 253 U. 8. 350 (1920); Nineteenth Amendment by Leser v. Garnett, 258 U. 8. 130 (1823). 258 U. 8. 180 (1922).

•Elliott's Debates (2d ed.; 1987), L, 316–317; Madison's Papers 581–593 and 551–582.

PART IV

TIME LIMITATIONS WITH RESPECT TO STATE APPLICATIONS

CHAPTER 11

LAPSE OF TIME AFFECTING APPLICATIONS

When two-thirds of the States have applied for a convention, the applications, supposedly, attain binding force. Such action, ordinarily, would preclude discretionary power or decision on the part of Congress, since article V directs that body to convene a convention. As noted in preceding chapters, however, article V provides no legal sanction for its own enforcement, and there seems to be no judicial process for enforcing its provisions.

A convention, under article V, after the requisite number of States have made application, does not automatically come into being. It must be called by the Congress. Whether Congress can be made to act has already been discussed. Whether Congress should act and when, assuming it is willing, raises still further problems. Does an application, for example, once made, remain always alive and valid, or can it become legally ineffective because of a lapse of time that may have occurred after its adoption by the State legislature and during its pendency before the Congress? Does an application lapse into a state of invalidity because, possibly, some factor intervened to shorten its life? '

The amending article is silent on the subject of what force or effect the lapse of time will have on an application. The Supreme Court dealt with an analogous situation concerning the length of pendency of an amendment proposed by the Congress to the States for ratification in the case of Dillon v. Gloss and thought that amendments ought not be left open for all time:

2

We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the States may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary.

In the Dillon case, Congress proposed to the States for ratification a resolution which resulted in the 18th amendment. In the resolution, Congress fixed a period of 7 years within which three-fourths of the States had to ratify or else the resolution would have been lost. In upholding this action on the part of Congress, the Court announced (1) that Congress could fix a reasonable time within which proposed amendments had to be ratified, and (2) that 7 years was without question a reasonable time. The Court also noted that the proposal of an amendment and its ratification were not unrelated

events: