CHAPTER 13 "REASONABLE TIME" AFFECTING APPLICATIONS The conclusion reached in chapter 11 that an application remains in force for a reasonable time raises the further question of what constitutes a "reasonable time." Orfield suggests that the maximuni life of an application should not continue for more than a generation. Quite possibly a reasonable time may be measured by changes or improvements of the social or economic conditions out of which an amendatory move arises. The purpose underlying each application no doubt should also be taken into consideration.' 4 The cases of Coleman v. Miller 2 and Wise v. Chandler before the State courts of Kansas and Kentucky presented for judicial determination, among other things, the question of what is a reasonable time under article V. Both cases involved the question of the validity of a State's purported ratification of the proposed child-labor amendment more than 12 years after it was proposed by Congress. The United States Supreme Court, in Dillon v. Glass, had earlier held that Congress, in proposing an amendment, could fix a reasonable time for ratification and that the 7 years which it had prescribed for the adoption of the 18th amendment. was, without question, a reasonable time. The Kansas and Kentucky cases offered an opportunity for a further judicial decision on whether a reasonable time had been exceeded in those instances." The State courts reached opposite results, the Kansas court holding that despite the lapse of 12 years the proposed amendment still reflected the "felt needs of the day" and was, therefore, still open to ratification; the Kentucky court, on the other hand, holding that a reasonable period during which the State might have acted had expired, and that a resubmission of the proposed amendment by Congress was necessary if further action was to be taken on it.' However, the Supreme Court, in Coleman v. Miller, 10 decided the question by concluding that it was essentially political and not subject to judicial determination. In so deciding, the Court reasoned that, inasmuch as the Constitution set forth no satisfactory criteria for judicial determination of the question, and since a decision would involve an appraisal of a great variety of political, social, and economic conditions, the question was more appropriately one for congressional than for judicial determination. The Court distinguished Dillon v. Gloss" on the ground that Congress had set a definite time within which the proposed amendment had to be ratified. It did not follow, as the Court pointed out, that when Congress has not set a time limitation, the courts had to take on the responsibility of deciding what constitutes a reasonable time. 12 When a proposed amendment is based upon the needs, economic ur otherwise, of the Nation, it is necessary to consider, in determining FEDERAL CONSTITUTIONAL CONVENTION 45 what is a reasonable time, the conditions then prevailing throughout the country, and whether they had so far changed since the submission of the proposed amendment as to make the proposal no longer responsive to the conception which inspired it. As the Supreme Court stated (p. 453): In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of Government. The questions they_involve are essentially political and not justiciable. They can be decided by the Congress with the full knowledge and appreciation ascribed to the National Legislature of the political, social, and economic conditions which have prevailed during the period since the submission of the amendment. It must certainly be conceded that what is a reasonable time in one situation will not necessarily be reasonable in another. To illustrate: A comparatively short time could probably be held reasonable in the case of an amendment necessitated by the exigencies of a national emergency such as a war or an economic crisis, whereas a much longer period would conceivably be reasonable in the case of an amendment changing the term of office of the President. The suggested test laid down by Jameson 13 which seems to be a workable one is that a proposed amendment has relation to the sentiment and felt needs of today, and that, if not ratified early while the sentiment may fairly be supposed to exist it ought to be regarded as waived *** Such a test certainly sets up no rigid rule which will result in a similar time limitation being applied to every case. It only prescribes that an independent judgment should be used in each particular case in deciding whether sufficient time has elapsed to render the passage of an amendment unnecessary from a practical standpoint and unsupported by general public sentiment. CITATIONS Orfield, Lester B., The amending of the Federal Constitution (Chicago Callaghan & Co., 1942), p. 42. 146 Kan. 390 (1937), aff'd, 307 U. S. 433 (1939). 2270 Ky. 1 (1837), aff'd. 271 Ky. 252 (1937), dis'd 307 U. S. 474 (1939). 443 Stat. 670 (1224). ! 256 U. S. 368 (1921). Ibid., 376. Congress adopted the seven year limitation provision because, at that time, several proposals which had long lau dormant were nevertheless subject to being resurrected and acted upon by several states. Between the adoption of the Constitution and 1920, twenty-one amendments had been proposed by Congress and seventeen had been ratified by the requisite three-fourths of the states-some within a single year after their proposal and all within four years (256 U. S. 372). Each of the remaining four, however, while ratified by soine of the states, was not ratified by a sufficient number. Two, in fact, were missing only one state for the required ratification (U. S. Congress, House, 54th Cong., 2l sess., 1897, H. Dor. 353, pp. 300, 373). Ohio tried to ratify a long-dormant amendment, in order to defeat the slavery issue. In the light of these circumstances, Congress, in proposing the Eighteenth Amendment, fixed seven years for the period of ratification (U. S. Congress, Congressional Record, 65th Cong., 1st sess., 1918, ibid., 2d sess., 1919, pp. 423-478). As of 1949, the average time for ratification of the first twenty-one amendments has been computed to be 1year, 6 months. 21 days; 3 years, 6 months, 25 days has been the longest time used in ratifying (Coleman v. Miller, 307 U. S. 433, 453 (1939)). 146 Kan. 390 (1937). ♦ 270 y. 1 (1937) aff'd, 271 Ky. 252 (1937), dis'd 307 U. S. 474 (1939). **307 U. 8. 433 (1939): on the same day the court diemussed Chandler v. Wise, 307 U. S. 474 (1939) on the ground that the Governor's action had rendered the question moot. "256 U. S. 348 (1921). 1. The view might be taken that as a result of the Coleman case, the issue of "reasonable time" is no longer pertinent, or necessary, that Congress, with sole guthority over the amending process, can recognize state action regardless of whether the states are within a reason to time. As a pretical matter, with Jeral question put aside, it would seem that Cowar schould use, is 2nd procedure, the reasonable time metnol CHAPTER 14 WITHDRAWAL OF STATE APPLICATIONS May a State, once having made application for the call of a constitutional convention, withdraw or rescind its application? Some writers on the subject believe that the legislatures may do so; at least one does not.' 1 The Supreme Court in Coleman v. Miller, on the question of whether a State could withdraw or rescind its prior rejection of a proposed amendment to the Constitution, stated that the matter concerned a political question over which Congress had the ultimate power of decision. Congress, with respect to the 14th amendment, did not permit the States of Ohio and New Jersey to rescind their ratifications of that amendment. It has taken no position with respect to the withdrawal of State applications. If precedent of the ratification process is followed, then it would seem that legislatures could not withdraw their applications." However, the wisdom of applying such similar reasoning may well be questioned. The rescinding resolutions of Iowa in 1945 and of North Carolina in 1951 both point out that their applications were being withdrawn because of the change in world conditions following World War II. It would not seem politically wise for the Congress to refuse to permit withdrawal of a State application where there was good reason to believe that a proposed amendment would be undesirable and would run counter to the public interest. The requirement, discussed in other chapters, that applications be “contemporaneous" and related, generally, in subject matter would have reduced meaning if States were not permitted to rescind their applications. Such a requirement would not, in truth and in fact be met, since the general sentiment for a convention could not be said to exist in the necessary two-thirds of the States when one or more of those States are attempting to withdraw their applications. The present attitude among legislators seems to be that withdrawal is a permissible procedure since 12 States in the last 12 years alone have adopted resolutions rescinding their applications. The appli cation process is, of course, distinguishable from the ratifying of proposed amendments. In the one instance, in a State application only an initiating action is sought with no one finally committed to the substantive proposition contained in the application, not even the State which submits it. In the other instance, Congress has completed its work and is committed to the position outlined in the proposed amendment. Further, many States submit applications for the sole purpose of prodding Congress into taking action on a proposed amendment pending in the Congress, without ever having the slightest hope that Congress will call a convention. To hold them bound to their petitions would not be a politic or realistic approach. Since this question, like others, is a political one, Congress notwithstanding its FEDERAL CONSTITUTIONAL CONVENTION earlier decision on the 14th amendment could very well permit the States, when it so finds it to be in the public interest, to withdraw their applications. CITATIONS 'Cuvillier, Shall we Revise the Constitution (1927), 77, Forum, pp. 321, #2". Tüller. A Convention to Amend the Constitution-Why needed--How may it be obtained (1911), 183. North American Review, 1. 383-384. See Fackard, F. E., Rescinding Memorialization Resolutions. 30 Chi-Kent Law Rev. 339 (1952). 3307 U. 8. 433, 448-449 (1939). 3 it should be pointed out that the 14th amendment was adopted during the reconstruction lays after the Civil War. What was then the politically wise thing for Congress to do, would not necessarily be the best move today. U. 8., Congress, Congressional Record, 1945, Vol. 91, p. 2383. U. S., Congress, Congressional Record, 1951, Vol. 98, p. 4641. Alabama, Arkansas, Illinois, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Nebraska, New Jersey, Rhode Island, Wisconsin; see Table 6, appendix. 59-609 0 - 80 - 83 PART V RATIFICATION CHAPTER 15 REJECTION OR RATIFICATION The question of whether a State, having once rejected, may later ratify a proposed amendment had, until Coleman v. Miller,' long been the subject of controversy. Several writers had taken the position that since article V in terms provides for only affirmative acts, only such acts can have any effect; rejection would be of no more consequence than complete inaction. Thus it had been argued that ratification by a State which had previously rejected a proposed amendment is valid and is as complete and as binding as though there never had been any negative expression. This analysis has found support in actual practice and is evidenced by the fact that several States have effectively assented to constitutional amendments after prior rejections. In the case of the 13th amendment, New Jersey first rejected the amendment in 1865, and then adopted it the following year. In respect to the 14th amendment, four States (Georgia, North Carolina, Virginia, and South Carolina) rejccted it when first presented but subsequently ratified. The ratification was treated as valid in each case.* So far as can be determined, in every instance where ratification was made prior to the issuance of the Federal proclamation that the amendment had been adopted, the States which first rejected and later ratified were included in the list of States designated by the Secretary of State as ratifying. It seems clear that on the basis of actual practice, a rejection may be subsequently ratified. In addition, the proposition is sound in principle. Certainly a legislature's action of rejection ought not act with the finality of an executioner's ax. Changing social conditions, or a better educated point of view, may make it more desirable for the States to reverse their vote. Frank W. Grinnell, writing in the American Bar Association Journal, stated: " As No one knows what amendments may be submitted in the future as the result of political excitement; and, if the entire national structure is to be submitted to the hasty political action of State legislatures without an opportunity for reconsideration the country may wake up and find itself in a most serious situation some day. This important question was finally presented to the Supreme Court in the cases of Coleman v. Miller and Wise v. Chandler' The State courts had reached opposite conclusions. The Kansas court in Coleman v. Miller adopted the position that a legislature could validly ratify a proposed amendment even though there had been a prior rejection. The Kentucky court, on the other hand, reasoning by analogy to "offer and acceptance" in contract law, refused such a view and held that a rejection of the congressional |