subject matter which could be considered by a convention called pursuant to the bill, it should leave the enforcement of these limitations to the convention itself, subject to check only by the ratification process and by the courts. E. Should Amendments Be Proposed by Vote of a Simple to the Convention? Immediately prior to the passage of the Ervin Bill, section 10(a) was amended by a vote on the Senate floor to require a two-thirds vote of the convention delegates to propose amendments.105 Advocates of the two-thirds requirement noted that article V did not specify the convention voting requirement and argued that it should not be easier for a convention to propose amendments than it is for Congress.106 It was further argued that the requirement of applications from two-thirds of the states did not provide an adequate check on the process, because the question of whether a convention is needed to propose amendments is far different from the question of whether a particular amendment should be proposed.107 However, no argument satisfactorily dealt with the fact that article V expressly required a supermajority consensus for convention applications, ratifications, and the proposal of amendments by Congress, but does not require a supermajority vote for the proposal of amendments by a convention.108 Even more significantly, advocates of a two-thirds requirement ignored Congress' narrow role in the alternative amendment process. As noted above," 109 any requirement imposed by Congress which is not necessary for Congress to bring a convention into existence or to choose the mode of ratification is outside Congress' constitutional authority. Since a convention, once underway, could itself decide what vote should be required to propose amendments, the two-thirds requirement predetermined by Congress would appear to be unconstitutional. 105 117 CONG. REC. S16,531 (daily ed. Oct. 19, 1971). 108 See Hearings 37 (remarks of Mr. Sorensen); id. at 239 (memorandum of Professor McCloskey); 117 CONG. REC. S16,526 (daily ed. Oct. 19, 1971) (remarks of Senator Bayh); Bonfield, supra note 8, at 676. Professor Mendelson has stated that if a two-thirds vote is required in Congress, where one house is checking another, "it seems incredible" that Congress could not require a twothirds majority for proposal of amendments by a convention. Hearings 47. 107 See Letter from Professor Freund to Senator Bayh, 117 CONG. REC. S16,526 (daily ed. Oct. 19, 1971). 108 See 117 CONG. REC. S16,524-25 (daily ed. Oct. 19, 1971) (remarks of Senator Hruska). 109 See pp. 1618–19 supra. To be sure, Congress must specify an initial voting requirement by which a convention would decide how it should operate, and it might be contended that a two-thirds voting requirement for this purpose is reasonable. However, if Congress required a two-thirds vote subject to change by a convention, a minority of slightly more than one-third of the delegates could block any change in the two-thirds requirement, thereby compelling its application to the proposal of amendments. Since Congress could easily provide for initial voting by simple majority at the convention subject to modification by a vote requiring a stronger consensus for the proposal of amendments, this congressional obstruction is not necessary as a practical matter and is therefore beyond Congress' constitutional authority to implement the alternative amendment process. F. Will Judicial Review of Congressional Action Be Possible? The Ervin Bill provides that determinations made by Congress regarding the procedural sufficiency of state applications, rescissions, and ratifications shall be "binding on all others, including State and Federal courts." 110 The bill similarly precludes judicial review of congressional determinations of whether amendments proposed by a convention are of the same "nature" as those specified in the resolution calling the convention.111 These provisions seem an attempt to bar judicial review not only of determinations made within the bounds of Congress' constitutional authority-determinations which the Court, of course, would not review anyway- but also of congressional determinations which exceed the limits of this authority. The Senate Judiciary Committee did not articulate its reasons for Congress' authority for barring judicial review. Nor was the question discussed in any detail during hearings on the bill. Participants in the hearings seemed to assume that the courts would refuse to review any questions decided by Congress in the amendment process on the ground that they were nonjusticiable political questions.112 Whether this assumption of nonjusticiability is correct is the first of three questions raised by the Ervin Bill's attempts to preclude judicial review. The second is whether, if amendmentrelated issues are in fact justiciable, the Ervin Bill will still effectively bar judicial review on the basis of Congress' control over 110 Ervin Bill §§ 3(b), 5(c), 13(c). 111 Id. § 10(b). Questions arising from the amendment process are to be submitted first to the Committees on the Judiciary. See SENATE REPORT 14. 112 See Hearings 107 (Library of Congress Legislative Reference Service, Procedures for Amending the United States Constitution). the jurisdiction of the federal courts and the appellate jurisdiction of the Supreme Court. The final question is whether, even if the issues are justiciable and Congress did not effectively preclude review, judicial review will nonetheless fail in some instances because there is no defendant against whom the courts could grant relief. 1. The Justiciability of Issues Related to the Amendment Process. The Supreme Court has applied the "political question" doctrine to a broad range of cases in holding actions of the legislative or executive branch of government conclusive on the courts.113 When the Court deems a political question to be involved in a case, it does not merely give the political branches broad discretion; it rules the issue entirely nonjusticiable. 114 It has been argued that any determination of Congress related to the amending process constitutes such a political question.1 The Supreme Court decision in Coleman v. Miller 115 is often cited in support of this argument. In Coleman the Court refused to rule on whether a state could ratify a child labor amendment fifteen years after its proposal by Congress. The Court deferred to Congress on this question, reasoning that the political, social, and economic factors which prompted the amendment should determine whether the proposed amendment was still viable,116 and therefore susceptible to ratification, and that these factors could not properly be weighed by the courts.117 Four Justices criticized the narrowness of the holding 118 and stated that the amending process "itself is 'political' in its entirety, from sub 113 See, e.g., Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948) (question whether President followed statutory standards in reviewing CAB grant of application to engage in overseas air transportation); Ex parte Peru, 318 U.S. 578 (1943) (question whether foreign vessel is immune from suit because owned by a foreign sovereign, when the State Department has so certified); Field v. Clark, 143 U.S. 649 (1892) (question whether an enrolled Act of Congress conforms to the bill as passed by both houses). See generally Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517 (1966). 114 See BRICKFIELD, supra note 88, at 27; L. ORFIELD, supra note 40, at 41; Note, Proposing Amendments to the United States Constitution by Convention, 70 HARV. L. REV. 1067, 1068 (1957). 115 307 U.S. 433 (1939). 116 The amendment in Coleman had been proposed by Congress to overrule Hammer v. Dagenhart, 247 U.S. 251 (1918), which held unconstitutional federal statutes regulating child labor. Substantial changes in economic and social conditions after proposal could have made such federal protection of children no longer necessary and placed in doubt the continued viability of state ratifications performed when the protection was badly needed. 117 307 U.S. at 451-56. 118 Seven Justices, including the four who desired a broader decision, joined in the "Opinion of the Court." Two Justices dissented. mission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point." 119 However, prior to Coleman the Supreme Court had reached the merits in deciding several issues related to the amending process. For example, in Dillon v. Gloss 120 the Court ruled that seven years was a "reasonable" time limit for Congress to place on ratification of an amendment. And in Leser v. Garnett,121 the Court held that state legislatures, in ratifying proposed amendments, could not be bound by procedural requirements imposed by their state constitutions.122 Since Coleman did not overrule these cases, 123 and since the Court based its holding on the particular relevance of the economic and social issues involved, Coleman does not stand for the proposition that absolute nonjusticiability attaches to all questions related to the amendment process. Indeed, the political, social, and economic factors which the Court felt ill-equipped to consider in Coleman will not control most issues in the alternative amendment process. Since the purpose of the alternative method of amendment is to allow citizens to bypass an obdurate Congress in bringing about constitutional change, 124 Congress is not free to weigh political, economic, and social factors before calling a convention or submitting proposed amendments for ratification. Moreover, many of the issues which might arise from the process-such as how narrowly Congress can limit the convention as to subject matter - will involve constitutional interpretation, and are thus issues which belong presumptively in a court of justice.125 119 307 U.S. at 459 (Black, J., concurring). 120 256 U.S. 368 (1921). . 121 258 U.S. 130 (1922). 122 The Court ruled that state constitutional provisions purporting to invalidate certain state legislative ratifications of the nineteenth amendment were of no effect because the legislatures were performing a "federal function" in ratifying an amendment to the federal Constitution. If the Court had desired to reach the same result by ruling questions relating to the amendment process "political questions," it would have ruled that Congress, by accepting the ratifications of the states, had determined that they were valid and that the Court would not inquire into that determination. The appellees in Leser did argue that the issue was nonjusticiable. See Brief for Appellees at 40-45. See also Brief for the United States as Amicus Curiae at 4-9. But the Court's opinion did not mention the "political question" issue. 133 The Court distinguished Dillon on the ground that the Dillon Court had not been asked to choose its own time limit on ratification but simply to approve or disapprove the deadline imposed by Congress. Id. at 452-53. The Court therefore did not accept Justice Black's argument that the Dillon Court's inquiry into the merits of the seven year period should be disapproved. Id. at 459 (concurring opinion). 134 See p. 1618 & note 32 supra. 125 See Cooper v. Aaron, 358 U.S. 1, 18 (1958). Furthermore, Coleman may be read narrowly by the Supreme Court today because of recent developments of the political question doctrine. In Baker v. Carr 126 the Court, in ruling that the issue of state legislative apportionment is not a political question, mapped out a more active role for the federal courts in the treat⚫ment of alleged political questions. Baker established the following criteria for identifying a nonjusticiable political question: 127 [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 of 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 an 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. The Court stated that "[u]nless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability. "128 Application of relevant 120 Baker v. Carr criteria to issues arising from the alternative amendment process demonstrates that those issues would not be nonjusticiable political questions. Judicial review of amendment-related issues would not be excluded on the basis of a "textually demonstrable constitutional commitment" of the issues to Congress.180 The mere fact that the Constitution gives Congress the duty to call a convention and the power to choose the mode of ratification should not be considered a textual commitment of unlimited discretionary power over the entire amendment process. To be sure, the duty imposed on Congress by article V implies certain powers incident to fulfilling that duty.181 However, the Constitution commits numerous powers to the political branches without committing absolute and unreviewable discretion in the 129 At least one of the Baker v. Carr criteria does not seem at all relevant to review of congressional decisions in the alternative amendment process. There could be no "impossibility of deciding [a question] without an initial policy determination" of a political branch where the courts would be reviewing the constitutionality only of determinations already made by Congress. 130 Justice Black failed to convince the Court in Coleman that article V did textually commit these issues to Congress. 307 U.S. at 458-59 (Black, J., concurring). 131 See pp. 1617-18 supra. |