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exercise of those powers. Generally, political questions arise not simply because issues are "committed" to the political branches, but because some other Baker criterion is present, such as a “lack of judicially manageable standards" or the "potentiality of embarrassment from multifarious pronouncements." 182 That the constitutional grant of a power to Congress, standing alone, will not make its exercise unreviewable is amply demonstrated by the fact that the Court has traditionally reviewed the exercise of powers, such as Congress' power to regulate commerce, which are far more explicitly committed to Congress than powers merely implied from the article V duty to call a convention.138 In this normal judicial review, the Court ensures that the limits of the power granted are not exceeded and that other constitutional provisions are not infringed.

Indeed, in Powell v. McCormack 134 the Court indicated that an issue is not necessarily a political question even when a constitutional provision seems explicitly to commit the determination of its meaning to Congress. The Court in Powell did not demur in the face of the constitutional provision that each house of Congress "shall be the Judge of the Elections, Returns and Qualifications of its own Members." 185 Rather, the Court itself determined that the qualifications which Congress had the power to judge did not extend to those upon which Congressman-elect Adam Clayton Powell was excluded from the House.186 Thus, in the alternative amendment process, if Congress acted beyond the powers given it by article V, as interpreted by the Court, the Court could apply the reasoning of Powell to justify a finding

132 See Baker v. Carr, 369 U.S. 186, 217 (1962). The "textual commitment" of a power has most often been found with regard to the foreign relations powers of the political branches. See id. at 211-212; Scharpf, supra note 113, at 541.

133 See Scharpf, supra note 113, at 540. For example, article 1, § 8 of the Constitution provides that "Congress shall have Power . . . [t]o regulate Commerce... among the several States. . . ." But the Court will nevertheless inquire whether congressional action has exceeded the bounds of the power granted by the Constitution. See, e.g., United States v. Darby, 312 U.S. 100 (1941); Hammer v. Dagenhart, 247 U.S. 251 (1918).

134 395 U.S. 486 (1969).

135 U.S. CONST. art. I, § 5.

136 395 U.S. at 547-48. The House had excluded Congressman-elect Powell and had refused to pay his salary on grounds of misconduct and deceit regarding the use of committee funds. The Court interpreted "qualifications" in article 1, § 5 to mean only the age, citizenship, and residency requirements imposed on Congressmen by article 1, § 2, and not their prior behavior.

It might well be questioned whether the Court, despite the language of Powell, would have felt itself limited by even article 1, 5 if there had been a congressional determination that the Congressman-elect was only twenty years old, and hence not eligible to be a Representative. U.S. CONST. art. 1, § 2.

that a question decided by Congress was not textually committed to it.

Nor is there a lack of judicially manageable standards for resolving constitutional issues arising from the amendment process. The Court in Coleman rested its finding of nonjusticiability on a lack of judicially manageable standards to evaluate historical developments.187 But, unlike the issue in Coleman, many of the questions which the Ervin Bill commits to Congress will not involve appraisals of economic and social developments. For example, determining whether state applications deal with the same subject, or whether a proposed amendment is of the "nature" defined by the concurrent resolution calling the convention, would involve only facial comparisons of documents without consideration of the underlying social conditions which motivated their adoption.138

Nor would "unquestioning adherence to political decisions already made" justify the refusal to review the contemporaneous actions of Congress in the amending process.189 Reliance on a new amendment would be minimal, because litigation brought to test it would move quickly through the courts.140

A pronouncement by the Supreme Court that Congress had overstepped its constitutional bounds in refusing, for example, to call a convention when article V requirements had been met could well embarrass Congress and evidence some "lack of repect" of the Court for Congress. However, the "embarrassment from multifarious pronouncements" parameter of the Baker test

137 See 307 US. at 451-56; p. 1635 supra.

138

'It is conceivable that the Court might even find standards for reviewing the time limit placed on state applications. Although the Coleman Court would not set a deadline on ratification of a particular amendment, a Court reviewing the lifespan set by statute for all applications, regardless of subject matter, would only have to consider the constitutional requirement of a reasonably contemporaneous consensus, see p. 1620 supra, and could determine reasonableness by the duration and frequency of state legislative sessions. See pp. 1620–21 supra.

139 This particular Baker test would, however, provide the grounds on which the Court would refuse to review the procedural sufficiency of longstanding amendments to the Constitution, such as the Reconstruction amendments. Cf. Luther v. Borden, 48 U.S. (7 How.) 1, 7 (1849) (if Court were to recognize one government within a state over another, laws passsed by the one would be nullities, taxes wrongfully collected, salaries illegally paid, public accounts improperly settled, judgments and sentences null and void, and state officers trespassers).

140 The recent case of New York Times Co. v. United States, 403 U.S. 713 (1971), was resolved by the Supreme Court within eighteen days of the beginning of the controversy. See The Supreme Court, 1970 Term, 85 HARV. L. REV. 3, 200 (1971). A constitutional amendment would probably have even more far-reaching and immediately felt implications, meriting equally expeditious judicial review.

has been applied almost exclusively to avoid embarrassment of the Government in the area of foreign relations.141 For example, when a question such as the duration of a war is at issue, the Court has felt the American position best defined by the political departments.142 In other areas, despite the language of Baker, the Court has risked causing embarrassment and showing "lack of respect" to the President and Congress by ruling unconstitutional a number of actions to which those branches had committed their prestige. For example, in declaring unlawful President Truman's seizure of the steel mills during the Korean crisis,148 and in overruling President Roosevelt's New Deal legislation,144 the Court frustrated the goals of the political branches instead of declining jurisdiction on the grounds that it faced a political question.

Even more significant, perhaps, is the Court's treatment of the possibility of embarrassing Congress in the post-Baker case of Powell v. McCormack.145 In rejecting the "political question" defense, the Court disposed quickly of the claim that the potentiality of embarrassing confrontation between coordinate branches made the question nonjusticiable. Determining that adjudication would require only "an interpretation of the Constitution," the Court stated that it could not abdicate this responsibility:

146

141 See Baker v. Carr, 369 U.S. 186, 211-14 (1962); Scharpf, supra note 113, at 573-77.

142 See Scharpf, supra note 113, at 575.

143 Youngstown Sheet & Tube Co. v. Sawyer, 343 US. 579 (1952).

144 E.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

145 395 U.S. 486 (1969).

146 Id. at 549.

One further factor, unique to the constitutional amendment process and not considered in Baker, could arguably make it proper for the Court to decline adjudication of amendment-related issues. Just as the Court provides a check on the constitutionality of congressional actions, the amendment process is the only means by which the people can "overrule" the Court's decisions to ensure that the basic values the Court reflects do not deviate excessively from those of the people. See Scharpf, supra note 113, at 588-89. The Court should therefore be careful not to interpret article V to preserve its own decisions. As Professor Scharpf argues:

[T]he amendment process is... one instance in which the Court cannot assume responsibility for saying what the law is without undermining . . . the legitimacy of its power to say so. . . . [J]udicial review in a democracy remains defensible only to the extent that the Court itself will be defenseless against the processes through which the community may assert and enforce its own considered understanding of its basic code.

Id. at 589.

However, Congress, too, would probably be unsympathetic to the constitutional change sought; the use of the convention process would indicate that Congress had been unwilling to propose the constitutional change at issue.

Given the potential partiality of both Congress and the Court, the Court should

Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility.

2. Will the Ervin Bill Bar Judicial Review? -The fact that most constitutional issues arising from the alternative amendment process will not be considered nonjusticiable political questions raises the issue whether the Ervin Bill itself will compel the courts to decline consideration of controversies falling within its terms. Congress has considerable power over the jurisdiction of lower federal courts, 147 the appellate jurisdiction of the Supreme Court,148 and the jurisdiction of state courts when federal questions are involved. But because of the ways in which controversies will arise, the provisions of the Ervin Bill barring review will not preclude judicial consideration of justiciable constitutional issues.

149

Controversies related to the amendment process could arise in two ways. First, Congress could take affirmative action, such as calling a convention, submitting a proposal for ratification, or declaring an amendment properly ratified, when constitutional requirements allegedly had not been met. A dispute over the validity of the amendment, once promulgated,150 would enter the

have the final say in interpreting article V. The Court's usual function of applying principles of law to the issues before it would hopefully make its interpretation of the Constitution more impartial, or at least more widely respected, than similar interpretations by Congress, whose usual role involves the making of political judgments rather than the application of legal analysis. See Bickel, Foreword: The Passive Virtues, The Supreme Court, 1960 Term, 75 Harv. L. Rev. 40, 74 (1961); McCloskey, Foreword: The Reapportionment Case, The Supreme Court, 1961 Term, 76 HARV. L. REV. 54, 67 (1962).

147 The constitutional authority of Congress to “ordain and establish" the lower federal courts, see U.S. CONST. art. III, § 1, has long been held to include the power to define the jurisdiction of these courts and to withhold from them jurisdiction over enumerated controversies. See, e.g., Lockerty v. Phillips, 319 U.S. 182 (1943); Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850).

148 The appellate jurisdiction of the Supreme Court is subject to "such Exceptions... as the Congress shall make." U.S. CONST. art. III, § 2; see Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). But see Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1365 (1953) ("the exceptions [to the Supreme Court's appellate jurisdiction] must not be such as will destroy the essential role of the Supreme Court in the constitutional plan") (hereinafter cited as Hart].

149 See Bowles v. Willingham, 321 U.S. 503, 511-12 (1944); The "Moses Taylor," 71 U.S. (4 Wall.) 411 (1867); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 348-50 (1816).

150 No party is likely to be permitted to challenge the constitutionality of congressional action until the 38th state has ratified. Before this time the possibility

federal courts under their federal-question jurisdiction.151 For example, if the amendment purportedly created a criminal or civil cause of action, suits brought under the amendment would be federal questions, and the invalidity of the amendment would be asserted as a defense. If, on the other hand, the amendment purported to abolish a federal cause of action, the plaintiff, suing under the federal rights which existed before the amendment, would assert the invalidity of the amendment after the amendment had been raised as a defense. For example, if the amendment provided that the fourteenth amendment guarantees no one a right to attend racially integrated schools, and if the amendment resulted in a return to segregated schools, a black plaintiff could allege a violation of his federal rights as defined by the equal protection clause and Brown v. Board of Education,152 thereby raising a federal question. Before the suit could be dismissed, the court would have to determine whether the amendment was indeed valid and had overruled the Brown doctrine.

Once a controversy was within the general jurisdiction of a federal court, it would determine the validity of the amendment involved. Since a court cannot be made to apply a rule of law which it finds to be unconstitutional,153 congressional attempts to exclude judicial review of an amendment's validity would be to no avail.15 The court would examine the constitutionality of

that an amendment would not become part of the Constituion would presumably prevent a party from showing any actual or imminent injury, and therefore the requisite "case or controversy" would not exist. See U.S. CONST. art. III, § 1.

151 28 U.S.C. 1331 (1970). It might be argued that an invalid amendment could not give rise to a federal question and that a defendant sued by a plaintiff claiming a right under an invalid amendment would properly assert as a defense the court's lack of jurisdiction over the subject matter, FED. R. CIV. P. 12(b)(1), rather than the plaintiff's failure to state a claim on which relief could be granted. FED. R. CIV. P. 12(b)(6). But federal-question jurisdiction is present when the outcome of a controversy depends on the validity of a federal law, C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 57 (2d ed. 1970), and would surely also be present when the outcome depended on the validity of a constitutional amendment.

152 347 U.S. 483 (1954).

153 See Yakus v. United States, 321 U.S. 414, 463-68 (1944) (Rutledge, J., dissenting) (Congress cannot confer jurisdiction and direct that it be exercised in a manner inconsistent with constitutional requirements); United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872) (Congress, when granting the Supreme Court jurisdiction over a category of cases, cannot prescribe the application of an unconstitutional rule of law by forbidding the Court to give effect to presidential pardons); Hart 1373, 1378-79, 1387-96. But see Duncan v. The "Francis Wright," 105 U.S. 381 (1882) (the authority to limit jurisdiction carries with it the authority to exclude review of particular issues).

154 See Lipke v. Lederer, 259 U.S. 557 (1922) (Court exercising federal question jurisdiction enjoined summary collection of tax held to be a penalty, in spite of statutory prohibition of injunctions against federal taxes); Wong Wing v.

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