Article V. Mode of Amendment

[[Page 895]]


                                ARTICLE V

                               __________

                            MODE OF AMENDMENT

                               __________


                                CONTENTS

                                                                    Page
        Amendment of the Constitution.............................   897
        Scope of the Amending Power...............................   897
        Proposing a Constitutional Amendment......................   898
                Proposals by Congress.............................   899
                The Convention Alternative........................   899
                Ratification......................................   900
                Authentication and Proclamation...................   911
        Judicial Review Under Article V...........................   911


[[Page 897]]

                                ARTICLE V

                            MODE OF AMENDMENT

                               ----------

  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 three fourths of the
several States or by Conventions in three fourths thereof, as the one 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.

                      AMENDMENT OF THE CONSTITUTION

      Scope of the Amending Power

        When this Article was before the Constitutional Convention, a
motion to insert a provision that ``no State shall without its consent
be affected in its internal policy'' was made and rejected.\1\ A further
attempt to impose a substantive limitation on the amending power was
made in 1861, when Congress submitted to the States a proposal to bar
any future amendments which would authorize Congress to ``interfere,
within any State, with the domestic institutions thereof . . . .''\2\
Three States ratified this article before the outbreak of the Civil War
made it academic.\3\ Members of Congress

[[Page 898]]
opposed passage by Congress of the Thirteenth Amendment on the basis
that the amending process could not be utilized to work such a major
change in the internal affairs of the States but the protest was in
vain.\4\ Many years later the validity of both the Eighteenth and
Nineteenth Amendments was challenged because of their content. The
arguments against the former took a wide range. Counsel urged that the
power of amendment is limited to the correction of errors in the framing
of the Constitution and that it does not comprehend the adoption of
additional or supplementary provisions. They contended further that
ordinary legislation cannot be embodied in a constitutional amendment
and that Congress cannot constitutionally propose any amendment which
involves the exercise or relinquishment of the sovereign powers of a
State.\5\ The Nineteenth Amendment was attacked on the narrower ground
that a State which had not ratified the amendment would be deprived of
its equal suffrage in the Senate because its representatives in that
body would be persons not of its choosing, i.e., persons chosen by
voters whom the State itself had not authorized to vote for Senators.\6\
Brushing aside these arguments as unworthy of serious attention, the
Supreme Court held both amendments valid.

        \1\2 M. Farrand, The Records of the Federal Convention of 1787
(New Haven: rev. ed. 1937), 630.
        \2\57 Cong. Globe 1263 (1861).
        \3\H. Ames, The Proposed Amendments to the Constitution of the
United States During the First Century of Its History, H. Doc. 353, pt.
2, 54th Congress, 2d sess. (Washington: 1897), 363.
        \4\66 Cong. Globe 921, 1424-1425, 1444-1447, 1483-1488 (1864).
        \5\National Prohibition Cases, 253 U.S. 350 (1920).
        \6\Leser v. Garnett, 258 U.S. 130 (1922).
---------------------------------------------------------------------------
      Proposing a Constitutional Amendment

        Thirty-three proposed amendments to the Constitution have been
submitted to the States pursuant to this Article, all of them upon the
vote of the requisite majorities in Congress and none, of course, by the
alternative convention method.\7\ In the Convention, much controversy
surrounded the issue of the process by which the document then being
drawn should be amended. At first, it was voted that ``provision ought
to be made for the amendment [of the Constitution] whensoever it shall
seem necessary'' without the agency of Congress being at all
involved.\8\ Acting upon this instruction, the Committee on Detail
submitted a section providing that upon the application of the
legislatures of two-thirds of the States Congress was to call a
convention for purpose of amending the Constitution.\9\ Adopted,\10\ the
section was soon reconsidered on the motion of Framers of quite
different points of view, some who worried that the provision would
allow two-thirds of the States to subvert

[[Page 899]]
the others\11\ and some who thought that Congress would be the first to
perceive the need for amendment and that to leave the matter to the
discretion of the States would mean that no alterations but those
increasing the powers of the States would ever be proposed.\12\
Madison's proposal was adopted, empowering Congress to propose
amendments either on its own initiative or upon application by the
legislatures of two-thirds of the States.\13\ When this provision came
back from the Committee on Style, however, Gouverneur Morris and Gerry
succeeded in inserting the language providing for a convention upon the
application of the legislatures of two-thirds of the States.\14\

        \7\A recent scholarly study of the amending process and the
implications for our polity is R. Bernstein, Amending America (1993).
        \8\1 M. Farrand, The Records of the Federal Convention of 1787
(New Haven: rev. ed. 1937), 22, 202-203, 237; 2 id., 85.
        \9\Id., 188.
        \10\Id., 467-468.
        \11\Id., 557-558 (Gerry).
        \12\Id., 558 (Hamilton).
        \13\Id., 559
        \14\Id., 629-630. ``Mr. Madison did not see why Congress would
not be as much bound to propose amendments applied for by two-thirds of
the State as to call a Convention on the like application. He saw no
objection however against providing for a Convention for the purpose of
amendments, except only that difficulties might arise as to the form,
the quorum etc. which in Constitutional regulations ought to be as much
as possible avoided.''
---------------------------------------------------------------------------

        Proposals by Congress.--Few difficulties of a constitutional
nature have arisen with regard to this method of initiating
constitutional change, the only method, as we noted above, so far
successfully resorted to. When Madison submitted to the House of
Representatives the proposals from which the Bill of Rights evolved, he
contemplated that they should be incorporated in the text of the
original instrument.\15\ Instead, the House decided to propose them as
supplementary articles, a method followed since.\16\ It ignored a
suggestion that the two Houses should first resolve that amendments are
necessary before considering specific proposals.\17\ In the National
Prohibition Cases,\18\ the Court ruled that in proposing an amendment,
the two Houses of Congress thereby indicated that they deemed revision
necessary. The same case also established the proposition that the vote
required to propose an amendment was a vote of two thirds of the Members
present--assuming the presence of a quorum--and not a vote of two-thirds
of the entire membership.\19\ The approval of the President is not
necessary for a proposed amendment.\20\

        \15\1 Annals of Congress 433-436 (1789).
        \16\Id., 717.
        \17\Id., 430.
        \18\253 U.S. 350, 386 (1920).
        \19\Ibid.
        \20\Hollingsworth v. Virginia, 3 Dall. (3 U.S.) 378 (1798).
---------------------------------------------------------------------------

        The Convention Alternative.--Because it has never successfully
been invoked, the convention method of amendment is sur

[[Page 900]]
rounded by a lengthy list of questions.\21\ When and how is a convention
to be convened? Must the applications of the requisite number of States
be identical or ask for substantially the same amendment or merely deal
with the same subject matter? Must the requisite number of petitions be
contemporaneous with each other, substantially contemporaneous, or
strung out over several years? Could a convention be limited to
consideration of the amendment or the subject matter which it is called
to consider? These are only a few of the obvious questions and others
lurk to be revealed on deeper consideration.\22\ This method has been
close to utilization several times. Only one State was lacking when the
Senate finally permitted passage of an amendment providing for the
direct election of Senators.\23\ Two States were lacking in a petition
drive for a constitutional limitation on income tax rates.\24\ The drive
for an amendment to limit the Supreme Court's legislative apportionment
decisions came within one State of the required number, and a proposal
for a balanced budget amendment has been but two States short of the
requisite number for some time.\25\ Arguments existed in each instance
against counting all the petitions, but the political realities no doubt
are that if there is an authentic national movement underlying a
petitioning by two-thirds of the States there will be a response by
Congress.

        \21\The matter is treated comprehensively in C. Brickfield,
Problems Relating to a Federal Constitutional Convention, 85th Congress,
1st sess. (Comm. Print; House Judiciary Committee) (1957). A thorough
and critical study of activity under the petition method can be found in
R. Caplan, Constitutional Brinksmanship--Amending the Constitution by
National Convention (1988).
        \22\Ibid. See also Federal Constitutional Convention, Hearings
before the Senate Judiciary Subcommittee on Separation of Powers, 90th
Congress, 1st sess. (1967).
        \23\C. Brickfield, Problems Relating to a Federal Constitutional
Convention, 85th Congress, 1st sess. (Comm. Print; House Judiciary
Committee) (1957), 7, 89.
        \24\Id., 8-9, 89.
        \25\R. Caplan, Constitutional Brinksmanship--Amending the
Constitution by National Convention (1988), 73-78, 78-89.
---------------------------------------------------------------------------

        Ratification.--In 1992, the Nation apparently ratified a long-
quiescent 27th Amendment, to the surprise of just about everyone.
Whether the new Amendment has any effect in the area of its subject
matter, the effective date of congressional pay raises, the adoption of
this provision has unsettled much of the supposed learning on the issue
of the timeliness of pendency of constitutional amendments.

        It has been accepted that Congress may, in proposing an
amendment, set a reasonable time limit for its ratification. Beginning
with the Eighteenth Amendment, save for the Nineteenth, Congress has
included language in all proposals stating that the amendment should be
inoperative unless ratified within seven

[[Page 901]]
years.\26\ All the earlier proposals had been silent on the question,
and two amendments proposed in 1789, one submitted in 1810 and another
in 1861, and most recently one in 1924 had gone to the States and had
not been ratified. In Coleman v. Miller,\27\ the Court refused to pass
upon the question whether the proposed child labor amendment, the one
submitted to the States in 1924, was open to ratification thirteen years
later. This it held to be a political question which Congress would have
to resolve in the event three fourths of the States ever gave their
assent to the proposal.

        \26\Seven-year periods were included in the texts of the
proposals of the 18th, 20th, 21st, and 22d amendments; apparently
concluding in proposing the 23d that putting the time limit in the text
merely cluttered up the amendment, Congress in it and subsequent
amendments including the time limits in the authorizing resolution.
After the extension debate over the Equal Rights proposal, Congress once
again inserted into the text of the amendment the time limit with
respect to the proposal of voting representation in Congress of the
District of Columbia.
        \27\307 U.S. 433 (1939).
---------------------------------------------------------------------------

        In Dillon v. Gloss,\28\ the Court upheld Congress' power to
prescribe time limitations for state ratifications and intimated that
proposals which were clearly out of date were no longer open for
ratification. Granting that it found nothing express in Article V
relating to time constraints, the Court yet allowed that it found
intimated in the amending process a ``strongly suggest[ive]'' argument
that proposed amendments are not open to ratification for all time or by
States acting at widely separate times.\29\

        \28\256 U.S. 368 (1921).
        \29\Id., 374.
---------------------------------------------------------------------------

        Three related considerations were put forward. ``First, proposal
and ratification are not treated as unrelated acts but as succeeding
steps in a single endeavor, the natural inference being that they are
not to be widely separated in time. Secondly, it is only when there is
deemed to be a necessity therefor that amendments are to be proposed,
the reasonable implication being that when proposed they are to be
considered and disposed of presently. Thirdly, as ratification is but
the expression of the approbation of the people and is to be effective
when had in three-fourths of the States, there is a fair implication
that that it must be sufficiently contemporaneous in that number of
States to reflect the will of the people in all sections at relatively
the same period, which of course ratification scattered through a long
series of years would not do.''\30\

        \30\Id., 374-375.
---------------------------------------------------------------------------

        Continuing, the Court observed that this conclusion was the far
better one, because the consequence of the opposite view was that the
four amendments proposed long before, including the two sent out to the
States in 1789 ``are still pending and in a situation where their
ratification is some of the States many years since by

[[Page 902]]
representatives of generations now largely forgotten may be effectively
supplemented in enough more States to make three-fourths by
representatives of the present or some future generation. To that view
few would be able to subscribe, and in our opinion it is quite
untenable.''\31\

        \31\Ibid. One must observe that all the quoted language is
dicta, the actual issue in Dillon being whether Congress could include
in the text of a proposed amendment a time limit. In Coleman v. Miller,
307 U.S. 433, 453-454 (1939), Chief Justice Hughes, for a plurality,
accepted the Dillon dictum, despite his opinion's forceful argument for
judicial abstinence on constitutional-amendment issues. The other four
Justices in the Court majority thought Congress had complete and sole
control over the amending process, subject to no judicial review. Id.,
459.
---------------------------------------------------------------------------

        What seemed ``untenable'' to a unanimous Court in 1921 proved
quite acceptable to both executive and congressional branches in 1992.
After a campaign calling for the resurrection of the 1789 proposal,
which was originally transmitted to the States as one of the twelve
original amendments, enough additional States ratified to make up a
three-fourths majority, and the responsible executive official
proclaimed the amendment as ratified as both Houses of Congress
concurred in resolutions.\32\

        \32\Supra, p.126-127; infra, p.1997.
---------------------------------------------------------------------------

        That there existed a ``reasonable'' time period for ratification
was strongly controverted.\33\ The Office of Legal Counsel of the
Department of Justice prepared for the White House counsel an elaborate
memorandum that disputed all aspects of the Dillon opinion.\34\ First,
Dillon's discussion of contemporaneity was discounted as dictum.\35\
Second, the three ``considerations'' relied on in Dillon were deemed
unpersuasive. Thus, the Court simply assumes that, since proposal and
ratification are steps in a single process, the process must be short
rather than lengthy, the argument that an amendment should reflect
necessity says nothing about the length of time available, inasmuch as
the more recent ratifying States obviously thought the pay amendment was
necessary, and the fact that an amendment must reflect consensus does
not so much as intimate contemporaneous consensus.\36\ Third, the OLC
memorandum argued that the proper mode of interpretation of Article V
was to ``provide a clear rule that is capable of mechanical application,

[[Page 903]]
without any need to inquire into the timeliness or substantive validity
of the consensus achieved by means of the ratification process.
Accordingly, any interpretation that would introduce confusion must be
disfavored.''\37\ The rule ought to be, echoing Professor Tribe, that an
amendment is ratified when three-fourths of the States have approved
it.\38\ The memorandum vigorously pursues a ``plain-meaning'' rule of
constitutional construction. Article V says nothing about time limits,
and elsewhere in the Constitution when the Framers wanted to include
time limits they did so. The absence of any time language means there is
no requirement of contemporaneity or of a ``reasonable'' period.\39\

        \33\Thus, Professor Tribe wrote: ``Article V says an amendment
`shall be valid to all Intents and Purposes, as part of this
Constitution' when `ratified' by three-fourths of the states--not that
it might face a veto for tardiness. Despite the Supreme Court's
suggestion, no speedy ratification rule may be extracted from Article
V's text, structure or history.'' Tribe, The 27th Amendment Joins the
Constitution, Wall Street Journal, May 13, 1992, A15.
        \34\16 Ops. of the Office of Legal Coun. 102 (1992)
(prelim.pr.).
        \35\Id., 109-110. Coleman's endorsement of the dictum in the
Hughes opinion was similarly pronounced dictum. Id., 110. Both
characterizations, as noted above, are correct.
        \36\Id., 111-112.
        \37\Id., 113.
        \38\Id., 113-116.
        \39\Id., 103-106. The OLC also referenced previous debates in
Congress in which Members had assumed this proposal and the others
remained viable. Ibid.
---------------------------------------------------------------------------

        Now that the Amendment has been proclaimed and has been accepted
by Congress, where does this development leave the argument over the
validity of proposals long distant in time? One may assume that this
precedent stands for the proposition that proposals remain viable for
ever. It may, on the one hand, stand for the proposition that certain
proposals, because they reflect concerns that are as relevant today, or
perhaps in some future time, as at the time of transmission to the
States, remain open to ratification. Certainly, the public concern with
congressional pay made the Twenty-seventh Amendment particularly
pertinent. The other 1789 proposal, relating to the number of
representatives, might remain viable under this standard, whereas the
other proposals would not. On the other hand, it is possible to argue
that the precedent is an ``aberration,'' that its acceptance owed more
to a political and philosophical argument between executive and
legislative branches and to the defensive posture of Congress in the
political context of 1992 that led to an uncritical acceptance of the
Amendment. In that latter light, the development is relevant to but not
dispositive of the controversy. And, barring some judicial
interpretation, that is likely to be where the situation rests.

        Nothing in the status of the precedent created by the Twenty-
seventh Amendment suggests that Congress may not, when it proposes an
amendment, include, either in the text or in the accompanying
resolution, a time limitation, simply as an exercise of its necessary
and proper power.

        Whether once it has prescribed a ratification period Congress
may thereafter extend the period without necessitating action by
already-ratified States embroiled Congress, the States, and the courts
in argument with respect to the proposed Equal Rights

[[Page 904]]
Amendment.\40\ Proponents argued and opponents doubted that the fixing
of a time limit and the extending of it were powers committed
exclusively to Congress under the political question doctrine and that
in any event Congress had power to extend. It was argued that inasmuch
as the fixing of a reasonable time was within Congress' power and that
Congress could fix the time either in advance or at some later point,
based upon its evaluation of the social and other bases of the
necessities of the amendment, Congress did not do violence to the
Constitution when, once having fixed the time, it subsequently extended
the time. Proponents recognized that if the time limit was fixed in the
text of the amendment Congress could not alter it because the time limit
as well as the substantive provisions of the proposal had been subject
to ratification by a number of States, making it unalterable by Congress
except through the amending process again. Opponents argued that
Congress, having by a two-thirds vote sent the amendment and its
authorizing resolution to the States, had put the matter beyond changing
by passage of a simple resolution, that States had either acted upon the
entire package or at least that they had or could have acted
affirmatively upon the promise of Congress that if the amendment had not
been ratified within the prescribed period it would expire and their
assent would not be compelled for longer than they had intended.
Congress did pass a resolution extending by three years the period for
ratification.\41\

        \40\See Equal Rights Amendment Extension, Hearings before the
Senate Judiciary Subcommittee on the Constitution, 95th Congress, 2d
sess. (1978); Equal Rights Amendment Extension, Hearings before the
House Judiciary Subcommittee on Civil and Constitutional Rights, 95th
Congress, 1st/2d sess. (1977-78).
        \41\H.J. Res. 638, 95th Congress, 2d sess. (1978); 92 Stat.
3799.
---------------------------------------------------------------------------

        Litigation followed and a federal district court, finding the
issue to be justiciable, held that Congress did not have the power to
extend, but before the Supreme Court could review the decision the
extended time period expired and mooted the matter.\42\

        \42\Idaho v. Freeman, 529 F. Supp. 1107 (D.C.D. Idaho, 1981),
prob. juris. noted, 455 U.S. 918 (1982), vacated and remanded to
dismiss, 459 U.S. 809 (1982).
---------------------------------------------------------------------------

        Also much disputed during consideration of the proposed Equal
Rights Amendment was the question whether once a State had ratified it
could thereafter withdraw or rescind its ratification, precluding
Congress from counting that State toward completion of ratification.
Four States had rescinded their ratifications and a fifth had declared
that its ratification would be void unless the amendment was ratified
within the original time limit.\43\ The issue

[[Page 905]]
was not without its history. The Fourteenth Amendment was ratified by
the legislatures of Ohio and New Jersey, both of which subsequently
passed rescinding resolutions. Contemporaneously, the legislatures of
Georgia, North Carolina, and South Carolina rejected ratification
resolutions. Pursuant to the Act of March 2, 1867,\44\ the governments
of those States were reconstituted and the new legislatures ratified.
Thus, there were presented both the question of the validity of a
withdrawal and the question of the validity of a ratification following
rejection. Congress requested the Secretary of State\45\ to report on
the number of States ratifying the proposal and the Secretary's response
specifically noted the actions of the Ohio and New Jersey legislatures.
The Secretary then issued a proclamation reciting that 29 States,
including the two that had rescinded and the three which had ratified
after first rejecting, had ratified, which was one more than the
necessary three-fourths. He noted the attempted withdrawal of Ohio and
New Jersey and observed that it was doubtful whether such attempts were
effectual in withdrawing consent.\46\ He therefore certified the
amendment to be in force if the rescissions by Ohio and New Jersey were
invalid. The next day Congress adopted a resolution listing all 29
States, including Ohio and New Jersey, as having ratified and concluded
that the ratification process was completed.\47\ The Secretary of State
then proclaimed the Amendment as part of the Constitution.

        \43\Nebraska (March 15, 1973), Tennessee (April 23, 1974), and
Idaho (February 8, 1977) all passed rescission resolutions without
dispute about the actual passage. The Kentucky rescission was attached
to another bill and was vetoed by the Lieutenant Governor, acting as
Governor, citing grounds that included a state constitutional provision
prohibiting the legislature from passing a law dealing with more than
one subject and a senate rule prohibiting the introduction of new bills
within the last ten days of a session. Both the resolution and the veto
message were sent by the Kentucky Secretary of State to the General
Services Administration. South Dakota was the fifth State.
        \44\14 Stat. 428.
        \45\The Secretary was then responsible for receiving notices of
ratification and proclaiming adoption.
        \46\15 Stat. 706, 707.
        \47\15 Stat. 709.
---------------------------------------------------------------------------

        In Coleman v. Miller,\48\ the congressional action was
interpreted as going directly to the merits of withdrawal after
ratification and of ratification after rejection. ``Thus, the political
departments of the Government dealt with the effect of previous
rejection and of attempted withdrawal and determined that both were
ineffectual in the presence of an actual ratification.'' Although
rescission was hotly debated with respect to the Equal Rights Amendment,
the failure of ratification meant that nothing definitive

[[Page 906]]
emerged from the debate. The questions that must be resolved are whether
the matter is justiciable, that is, whether under the political question
doctrine resolution of the issue is committed exclusively to Congress,
and whether there is judicial review of what Congress' power is in
respect to deciding the matter of rescission. The Fourteenth Amendment
precedent and  Coleman v. Miller combine to appear to say, but not
without doubt, that resolution is a political question committed to
Congress.

        \48\307 U.S. 433, 488-450 (1939) (plurality opinion). For an
alternative construction of the precedent, see Corwin & Ramsey, The
Constitutional Law of Constitutional Amendment, 27 Notre Dame Law. 185,
201-204 (1951). The legislature of New York attempted to withdraw its
ratification of the 15th Amendment; although the Secretary of State
listed New York among the ratifying States, noted the withdrawal
resolution, there were ratifications from three-fourths of the States
without New York. 16 Stat. 1131.
---------------------------------------------------------------------------

        The Twenty-seventh Amendment precedent is relevant here. The
Archivist of the United States proclaimed the Amendment as having been
ratified a day previous to the time both Houses of Congress adopted
resolutions accepting ratification.\49\ There is no necessary conflict,
inasmuch as both the Archivist and Congress concurred in their actions,
but the Office of Legal Counsel of the Department of Justice opined that
the Coleman precedent was not binding and that the Fourteenth Amendment
action by Congress was an ``aberration.''\50\ That is, the memorandum
argued that the Coleman opinion by Chief Justice Hughes was for only a
plurality of the Court and, moreover, was dictum since it addressed an
issue not before the Court.\51\ On the merits, OLC argued that Article V
gave Congress no role other than to propose amendments and to specify
the mode of ratification. An amendment is valid when ratified by three-
fourths of the States, no further action being required. Although
someone must determine when the requisite number have acted, OLC argued
that the executive officer charged with the function of certifying, now
the Archivist, has only the ministerial duty of counting the
notifications sent to him. Separation of powers and federalism concerns
also counseled against a congressional role, and past practice, in which
all but the Fourteenth Amendment were certified by an executive officer,
was noted as supporting a decision against a congressional role.\52\

        \49\F.R.Doc. 92-11951, 57 Fed. Reg. 21187; 138 Cong. Rec. (daily
ed.) S 6948-49, H 3505-06.
        \50\16 Ops. of the Office of Legal Coun. 102, 125 (1992)
(prelim.pr.).
        \51\Id., 118-121.
        \52\Id., 121-126.
---------------------------------------------------------------------------

        What would be the result of adopting one view over the other?

        First, finding that resolution of the question is committed to
Congress merely locates the situs of the power, however, and says
nothing about what the resolution should be. That Congress in the past
has refused to accept rescissions is but the starting point, inasmuch
as, unlike courts, Congress operates under no principle of  stare
decisis so that the decisions of one Congress on a subject do not bind
future Congresses. If Congress were to be faced with a de

[[Page 907]]
cision about the validity of rescission, to what standards should it
look?

        That a question of constitutional interpretation may be
``political'' in the sense of being committed to one or to both of the
``political'' branches is not, of course, a judgment that in its
resolution the political branch may decide without recourse to
principle. Resolution of political questions is not subject to judicial
review. So that the prospect of court overruling is not one with which
the decisionmaker need trouble himself. But both legislators and
executive are bound by oath to observe the Constitution,\53\ and
consequently it is with the original document that the search for an
answer must begin.

        \53\Article VI, parag. 3. ``In the performance of assigned
constitutional duties each branch of the Government must initially
interpret the Constitution, and the interpretation of its powers by any
branch is due great respect from the others.'' United States v. Nixon,
418 U.S. 683, 703 (1974).
---------------------------------------------------------------------------

        At the same time, it may well be that the Constitution affords
no answer; it may not speak to the issue. Generally, in the exercise of
judicial review, courts view the actions of the legislative and
executive branches in terms not of the wisdom or desirability or
propriety of their actions but in terms of the comportment of those
actions with the constitutional grants of power and constraints upon
those powers; if an action is within a granted power and violates no
restriction, the courts will not interfere. How the legislature or the
executive decides to deal with a question within the confines of the
powers each constitutionally have is beyond judicial control.

        Therefore, if the Constitution commits decision on an issue to,
say, Congress, and imposes no standards to govern or control the
reaching of that decision, in its resolution Congress may be restrained
only by its sense of propriety or wisdom or desirability, i.e., may be
free to make a determination solely as a policy matter. The reason that
these issues are not justiciable is not only that they are committed to
a branch for decision without intervention by the courts but also that
the Constitution does not contain an answer. This interpretation, in the
context of amending the Constitution, may be what Chief Justice Hughes
was deciding for the plurality of the Court in Coleman.\54\

        \54\Coleman v. Miller, 307 U.S. 433, 450, 453 (1939) (plurality
opinion). Thus, considering the question of ratification after
rejection, the Chief Justice found ``no basis in either Constitution or
statute'' to warrant the judiciary in restraining state officers from
notifying Congress of a State's ratification, so that it could decide to
accept or reject. ``Article 5, speaking solely of ratification, contains
no provision as to rejection.'' And in considering whether the Court
could specify a reasonable time for an amendment to be before the State
before it lost its validity as a proposal, Chief Justice Hughes asked:
``Where are to be found the criteria for such a judicial determination?
None are to be found in Constitution or statute.'' His discussion of
what Congress could look to in fixing a reasonable time, id., 453-454,
is overwhelmingly policy-oriented. On this approach generally, see
Henkin, Is There a ``Political Question'' Doctrine?, 85 Yale L.J. 597
(1976).

---------------------------------------------------------------------------

[[Page 908]]

        Article V may be read to contain a governing constitutional
principle, however. Thus, it can be argued that as written the provision
contains only language respecting ratification and that inexorably once
a State acts favorably on a resolution of ratification it has exhausted
its jurisdiction over the subject and cannot rescind,\55\ nor can
Congress even authorize a State to rescind.\56\ This conclusion is
premised on Madison's argument that a State may not ratify
conditionally, that is, it must adopt ``in toto and for ever.''\57\
While the Madison principle may be unexceptionable in the context in
which it was stated, it may be doubted that it transfers readily to the
significantly different issue of rescission.

        \55\See, e.g., the debate between Senator Conkling and Senator
Davis on this point in 89 Cong. Globe 1477-1481 (1870).
        \56\Constitutionality of Extending the Time Period for
Ratification of the Proposed Equal Rights Amendment, Memorandum of the
Assistant Attorney General, Office of Legal Counsel, Department of
Justice, in Equal Rights Amendment Extension, Hearings before the Senate
Judiciary Subcommittee on the Constitution, 95th Congress, 2d sess.
(1978), 80, 91-99.
        \57\During the debate in New York on ratification of the
Constitution, it was suggested that the State approve the document on
condition that certain amendments the delegates thought necessary be
adopted. Madison wrote: ``The Constitution requires an adoption in toto
and for ever. It has been so adopted by the other States. An adoption
for a limited time would be as defective as an adoption of some of the
articles only. In short any condition whatever must viciate the
ratification.'' 5 The Papers of Alexander Hamilton, H. Syrett ed. (New
York: 1962), 184.
---------------------------------------------------------------------------

        A more pertinent principle would seem to be that expressed in
Dillon v. Gloss.\58\ In that case, the action of Congress in fixing a
seven-year-period within which ratification was to occur or the proposal
would expire was attacked as vitiating the amendment. The Court, finding
no express provision in Article V, nonetheless thought it ``reasonably
implied'' therein ``that the ratification must be within some reasonable
time after the proposal.'' Three reasons underlay the Court's finding of
this implication and they are suggestive on the question of
rescission.\59\

        \58\256 U.S. 368 (1921). Of course, we recognize, as indicated
at various points above, that Dillon, and Coleman as well, insofar as
they discuss points relied on here, express dictum and are not binding
precedent. They are discussed solely for the persuasiveness of the views
set out.
        \59\Quoted supra, text at n. 30.
---------------------------------------------------------------------------

        Although addressed to a different issue, the Court's discussion
of the length of time an amendment may reasonably pend before losing its
viability is suggestive with respect to rescission. That is, first, with
proposal and ratification as successive steps in a single endeavor,
second, with the necessity of amendment forming the basis for adoption
of the proposal, and, third, especially with the implication that an
amendment's adoption should be ``sufficiently

[[Page 909]]
contemporaneous'' in the requisite number of States ``to reflect the
will of the people in all sections at relatively the same period,'' it
would raise a large question were the ratification process to be one in
which there was counted one or more States which at the same time other
States were acting affirmatively were acting to withdraw their
expression of judgment that amendment was necessary. The ``decisive
expression of the people's will'' that is to bind all might well in
those or similar circumstances be found lacking. Employment of this
analysis would not necessarily lead in specific circumstances to
failures of ratification; the particular facts surrounding the passage
of rescission resolutions, for example, might lead Congress to conclude
that the requisite ``contemporaneous'' ``expression of the people's
will'' was not undermined by the action.

        And employment of this analysis would still seem, under these
precedents, to leave to Congress the crucial determination of the
success or failure of ratification. At the same time it was positing
this analysis in the context of passing on the question of Congress'
power to fix a time limit, the Court in Dillon v. Gloss observed that
Article V left to Congress the authority ``to deal with subsidiary
matters of detail as the public interest and changing conditions may
require.''\60\ And in Coleman v. Miller, Chief Justice Hughes went
further in respect to these ``matters of detail'' being ``within the
congressional province'' in the resolution of which the decision by
Congress ``would not be subject to review by the courts.''\61\

        \60\Id., 375-376. It should be noted that the Court seemed to
retain the power for itself to pass on the congressional decision,
saying ``[o]f the power of Congress, keeping within reasonable limits,
to fix a definite period for the ratification we entertain no doubt''
and noting later than no question existed that the seven-year period was
reasonable. Ibid.
        \61\307 U.S. 433, 452-454 (1939) (plurality opinion). It is, as
noted above, not entirely clear to what extent the Hughes plurality
exempted from judicial review congressional determinations made in the
amending process. Justice Black's concurrence thought the Court
``treated the amending process of the Constitution in some respects as
subject to judicial review, in others as subject to the final authority
of Congress'' and urged that the Dillon v. Gloss ``reasonable time''
construction be disapproved. Id., 456, 458.
---------------------------------------------------------------------------

        Thus, it may be that if the  Dillon v. Gloss construction is
found persuasive, Congress would have constitutional standards to guide
its decision on the validity of rescission. At the same time, if these
precedents reviewed above are adhered to, and strictly applied, it
appears that the congressional determination to permit or to disallow
rescission would not be subject to judicial review.

        Adoption of the alternative view, that Congress has no role but
that the appropriate executive official has the sole responsibility,
would entail different consequences. That official, now the Archivist,
appears to have no discretion but to certify once he receives

[[Page 910]]
state notification.\62\ The official could, of course, request the
Department of Justice for a legal opinion on some issue, such as the
validity of rescissions. That is the course advocated by the executive
branch, naturally, but it is one a little difficult to square with the
ministerial responsibility of the Archivist.\63\ In any event, there
would seem to be no support for a political question preclusion of
judicial review under these circumstances. Whether the Archivist
certifies on the mere receipt of a ratification resolution or does so
only after ascertaining the resolution's validity, it would appear that
it is action subject to judicial review.\64\

        \62\United States ex rel. Widenmann v. Colby, 265 F. 998, 999
(D.C.Cir. 1920), affd.mem. 257 U.S. 619 (1921); United States v. Sitka,
666 F.Supp. 19, 22 (D.Conn. 1987), affd., 845 F.2d 43 (2d Cir.),
cert.den., 488 U.S. 827 (1988). See 96 Cong. Rec. 3250 (Message from
President Truman accompanying Reorg. Plan No. 20 of 1950); 16 Ops. of
the Office of Legal Coun. 102, 117 (1992) (prelim.pr.).
        \63\Id., 116-118. Thus, OLC says that the statute ``clearly
requires that, before performing this ministerial function, the
Archivist must determine whether he has received `official notice' that
an amendment has been adopted `according to the provisions of the
Constitution.' This is the question of law that the Archivist may
properly submit to the Attorney General for resolution.'' Id., 118. But
if his duty is ``ministerial,'' it seems, the Archivist may only notice
the fact of receipt of a state resolution; if he may, in consultation
with the Attorney General, determine whether the resolution is valid,
that is considerably more than a ``ministerial'' function.
        \64\Under the Administrative Procedure Act, doubtless, 5 U.S.C.
Sec. Sec. 701-706, though there may well be questions about one possible
exception, the ``committed to agency discretion'' provision. Id.,
Sec. 701(a)(2).
---------------------------------------------------------------------------

        Congress has complete freedom of choice between the two methods
of ratification recognized by Article V: by the legislatures of the
States or by conventions in the States. In United States v. Sprague,\65\
counsel advanced the contention that the Tenth Amendment recognized a
distinction between powers reserved to the States and powers reserved to
the people, and that state legislatures were competent to delegate only
the former to the National Government; delegation of the latter required
action of the people through conventions in the several States. The
Eighteenth Amendment being of the latter character, the ratification by
state legislatures, so the argument ran, was invalid. The Supreme Court
rejected the argument. It found the language of Article V too clear to
admit of reading any exception into it by implication.

        \65\282 U.S. 716 (1931).
---------------------------------------------------------------------------

        The term ``legislatures'' as used in Article V means
deliberative, representative bodies of the type which in 1789 exercised
the legislative power in the several States. It does not comprehend the
popular referendum which has subsequently become a part of the
legislative process in many of the States, nor may a State validly
condition ratification of a proposed constitutional amendment on its
approval by such a referendum.\66\ In the words of the Court: ``[T]he

[[Page 911]]
function of a state legislature in ratifying a proposed amendment to the
Federal Constitution, like the function of Congress in proposing the
amendment, is a federal function derived from the Federal Constitution;
and it transcends any limitations sought to be imposed by the people of
a State.''\67\

        \66\Hawke v. Smith, 253 U.S. 221, 231 (1920).
        \67\Leser v. Garnett, 258 U.S. 130, 137 (1922).
---------------------------------------------------------------------------

        Authentication and Proclamation.--Formerly, official notice from
a state legislature, duly authenticated, that it had ratified a proposed
amendment went to the Secretary of State, upon whom it was binding,
``being certified by his proclamation, [was] conclusive upon the
courts'' as against any objection which might be subsequently raised as
to the regularity of the legislative procedure by which ratification was
brought about.\68\ This function of the Secretary was first transferred
to a functionary called the Administrator of General Services,\69\ and
then to the Archivist of the United States.\70\ In Dillon v. Gloss,\71\
the Supreme Court held that the Eighteenth Amendment became operative on
the date of ratification by the thirty-sixth State, rather than on the
later date of the proclamation issued by the Secretary of State, and
doubtless the same rule holds as to a similar proclamation by the
Archivist.

        \68\Act of April 20, 1818, Sec. 2, 3 Stat. 439. The language
quoted in the text is from Leser v. Garnett, 258 U.S. 130, 137 (1922).
        \69\65 Stat. 710-711, Sec. 2; Reorg. Plan No. 20 of 1950,
Sec. 1(c), 64 Stat. 1272.
        \70\National Archives and Records Administration Act of 1984, 98
Stat. 2291, 1 U.S.C. Sec. 106b.
        \71\256 U.S. 368, 376 (1921).
---------------------------------------------------------------------------
      Judicial Review Under Article V

        Prior to 1939, the Supreme Court had taken cognizance of a
number of diverse objections to the validity of specific amendments.
Apart from holding that official notice of ratification by the several
States was conclusive upon the courts,\72\ it had treated these
questions as justiciable, although it had uniformly rejected them on the
merits. In that year, however, the whole subject was thrown into
confusion by the inconclusive decision in Coleman v. Miller.\73\ This
case came up on a writ of certiorari to the Supreme Court of Kansas to
review the denial of a writ of mandamus to compel the Secretary of the
Kansas Senate to erase an endorsement on a resolution ratifying the
proposed child labor amendment to the Constitution to the effect that it
had been adopted by the Kansas Senate. The attempted ratification was
assailed on three grounds: (1) that

[[Page 912]]
the amendment had been previously rejected by the state legislature; (2)
that it was no longer open to ratification because an unreasonable
period of time, thirteen years, had elapsed since its submission to the
States, and (3) that the lieutenant governor had no right to cast the
deciding vote in the Kansas Senate in favor of ratification.

        \72\Leser v. Garnett, 258 U.S. 130 (1922).
        \73\307 U.S. 433 (1939). Cf. Fairchild v. Hughes, 258 U.S. 126
(1922), wherein the Court held that a private citizen could not sue in
the federal courts to secure an indirect determination of the validity
of a constitutional amendment about to be adopted.
---------------------------------------------------------------------------

        Four opinions were written in the Supreme Court, no one of which
commanded the support of more than four members of the Court. The
majority ruled that the plaintiffs, members of the Kansas State Senate,
had a sufficient interest in the controversy to give the federal courts
jurisdiction to review the case. Without agreement with regard to the
grounds for their decision, a different majority affirmed the judgment
of the Kansas court denying the relief sought. Four members who
concurred in the result had voted to dismiss the writ on the ground that
the amending process ``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.''\74\ In an
opinion reported as ``the opinion of the Court,'' but in which it
appears that only two Justices joined Chief Justice Hughes who wrote it,
it was declared that the writ of mandamus was properly denied, because
the question whether a reasonable time had elapsed since submission of
the proposal was a nonjusticiable political question, the kinds of
considerations entering into deciding being fit for Congress to
evaluate, and the question of the effect of a previous rejection upon a
ratification was similarly nonjusticiable, because the 1868 Fourteenth
Amendment precedent of congressional determination ``has been
accepted.''\75\ But with respect to the contention that the lieutenant
governor should not have been permitted to cast the deciding vote in
favor of ratification, the Court found itself evenly divided, thus
accepting the judgment of the Kansas Supreme Court that the state
officer had acted validly.\76\ However, the unexplained decision

[[Page 913]]
by Chief Justice Hughes and his two concurring Justices that the issue
of the lieutenant' governor's vote was justiciable indicates at the
least that their position was in disagreement with the view of the other
four Justices in the majority that all questions surrounding
constitutional amendments are nonjusticiable.\77\

        \74\Coleman v. Miller, 307 U.S. 433, 456, 459 (1939) (Justices
Black, Roberts, Frankfurter, and Douglas concurring). Because the four
believed that the parties lacked standing to bring the action, id., 456,
460 (Justice Frankfurter dissenting on this point, joined by the other
three Justices), the further discussion of the applicability of the
political question doctrine is, strictly speaking, dicta. Justice
Stevens, then a circuit judge, also felt free to disregard the opinion
because a majority of the Court in Coleman ``refused to accept that
position.'' Dyer v. Blair, 390 F. Supp. 1291, 1299-1300 (D.C.N.D.Ill.
1975) (three-judge court). See also Idaho v. Freeman, 529 F. Supp. 1107,
1125-1126 (D.C.D.Idaho, 1981), vacated and remanded to dismiss, 459 U.S.
809 (1982).
        \75\Coleman v. Miller, 307 U.S. 433, 447-456 (1939) (Chief
Justice Hughes joined by Justices Stone and Reed).
        \76\Justices Black, Roberts, Frankfurter, and Douglas thought
this issue was nonjusticiable too. Id., 456. Although all nine Justices
joined the rest of the decision, see id., 470, 474 (Justice Butler,
joined by Justice McReynolds, dissenting), one Justice did not
participate in deciding the issue of the lieutenant governor's
participation; apparently, Justice McReynolds was the absent Member.
Note, 28 Geo. L. J. 199, 200 n. 7 (19). Thus, Chief Justice Hughes and
Justices Stone, Reed, and Butler would have been the four finding the
issue justiciable.
        \77\The strongest argument to the effect that constitutional
amendment questions are justiciable is Rees, Throwing Away the Key: The
Unconstitutionality of the Equal Rights Amendment Extension, 58 Tex. L.
Rev. 875, 886-901 (1980), and his student note, Comment, Rescinding
Ratification of Proposed Constitutional Amendments--A Question for the
Court, 37 La. L. Rev. 896 (1977). Two perspicacious scholars of the
Constitution have come to opposite conclusions on the issue. Compare
Dellinger, The Legitimacy of Constitutional Change: Rethinking the
Amendment Process, 97 Harv. L. Rev. 386, 414-416 (1983) (there is
judicial review), with Tribe, A Constitution We Are Amending: In Defense
of a Restrained Judicial Role, 97 Harv. L. Rev. 433, 435-436 (1983).
Much of the scholarly argument, up to that time, is collected in the
ERA-time-extension hearings. Supra, n. 40. The only recent judicial
precedents directly on point found justiciability on at least some
questions. Dyer v. Blair, 390 F. Supp. 1291 (D.C.N.D.Ill., 1975) (three-
judge court); Idaho v. Freeman, 529 F. Supp. 1107 (D.C.D.Idaho, 1981),
vacated and remanded to dismiss, 459 U.S. 809 (1982).
---------------------------------------------------------------------------

        However, Coleman does stand as authority for the proposition
that at least some decisions with respect to the proposal and
ratifications of constitutional amendments are exclusively within the
purview of Congress, either because they are textually committed to
Congress or because the courts lack adequate criteria of determination
to pass on them.\78\ But to what extent the political question doctrine
encompasses the amendment process and what the standards may be to
resolve that particular issue remain elusive of answers.

        \78\In Baker v. Carr, 369 U.S. 186, 214 (1962), the Court, in
explaining the political question doctrine and categorizing cases,
observed that Coleman ``held that the questions of how long a proposed
amendment to the Federal Constitution remained open to ratification, and
what effect a prior rejection had on a subsequent ratification, were
committed to congressional resolution and involved criteria of decision
that necessarily escaped the judicial grasp.'' Both characteristics were
features that the Court in Baker, supra, 217, identified as elements of
political questions, e.g., ``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.''
Later formulations have adhered to this way of expressing the matter.
Powell v. McCormack, 395 U.S. 486 (1969); O'Brien v. Brown, 409 U.S. 1
(1972); Gilligan v. Morgan, 413 U.S. 1 (1973). However, it could be
argued that, whatever the Court may say, what it did, particularly in
Powell but also in Baker, largely drains the political question doctrine
of its force. See Uhler v. AFL-CIO, 468 U.S. 1310 (1984) (Justice
Rehnquist on Circuit) (doubting Coleman's vitality in amendment
context). But see Goldwater v. Carter, 444 U.S. 996, 1002 (1979)
(opinion of Justices Rehnquist, Stewart, Stevens, and Chief Justice
Burger) (relying heavily upon Coleman to find an issue of treaty
termination nonjusticiable). Compare id., 1001 (Justice Powell
concurring) (viewing Coleman as limited to its context).