# Coleman v. Miller/Separate Frankfurter

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Opinion of Mr. Justice FRANKFURTER.
It is the view of Mr. Justice ROBERTS, Mr. Justice BLACK, Mr. Justice DOUGLAS and myself that the petitioners have no standing in this Court.
In endowing this Court with 'judicial Power' the Constitution presupposed an historic content for that phrase and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. The Constitution further explicitly indicated the limited area within which judicial action was to move-however far-reaching the consequences of action within that area-by extending 'judicial Power' only to 'Cases' and 'Controversies'. Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters that were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted 'Cases' or 'Controversies.' It was not for courts to meddle with matters that require no subtlety to be identified as political issues. And even as to the kinds of questions which were the staple of judicial business, it was not for courts to pass upon them as abstract, intellectual problems but only if a concrete, living contest between adversaries called for the arbitrament of law. Compare Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738; Willing Chicago Auditorium Ass'n, 277 U.S. 274, 48 S.Ct. 507, 72 L.Ed. 880; Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191.
As abstractions, these generalities represent common ground among judges. Since, however, considerations governing the exercise of judicial power are not mechanical criteria but derive from conceptions regarding the distribution of governmental powers in their manifold, changing guises, differences in the application of canons of jurisdiction have arisen from the beginning of the Court's history. Conscious or unconscious leanings toward the serviceability of the judicial process in the adjustment of public controversies clothed in the form of private litigation inevitably affect decisions. For they influence awareness in recognizing the relevance of conceded doctrines of judicial self-limitation and rigor in enforcing them.
Of all this, the present controversy furnishes abundant illustration. Twenty-one members of the Kansas Senate and three members of its House of Representatives brought an original mandamus proceeding in the Supreme Court of that State to compel the Secretary of its Senate to erase an endorsement on Kansas 'Senate Concurrent Resolution No. 3' of January 1937, to the effect that it had been passed by the Senate, and instead to endorse thereon the words 'not passed.' They also sought to restrain the officers of both Senate and House from authenticating and delivering it to the Governor of the State for transmission to the Secretary of State of the United States. These Kansas legislators resorted to their Supreme Court claiming that there was no longer an amendment open for ratification by Kansas and that, in any event, it had not been ratified by the 'legislature' of Kansas, the constitutional organ for such ratification. See Article V of the Constitution of the United States. The Kansas Supreme Court held that the Kansas legislators had a right to its judgment on these claims, but on the merits decided against them and denied a writ of mandamus. Urging that such denial was in derogation of their rights under the Federal Constitution, the legislators, having been granted certiorari to review the Kansas judgment, Coleman v. Miller, 303 U.S. 632, 58 S.Ct. 758, 82 L.Ed. 1092, ask this Court to reverse it.
Our power to do so is explicitly challenged by the United States as amicus curiae, but would in any event have to be faced. See Mansfield C. & L.M. Ry. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462. To whom and for what causes the courts of Kansas are open are matters for Kansas to determine. But Kansas can not define the contours of the authority of the federal courts, and more particularly of this Court. It is our ultimate responsibility to determine who may invoke our judgment and under what circumstances. Are these members of the Kansas legislature, therefore, entitled to ask us to adjudicate the grievances of which they complain?
It is not our function, and it is beyond our power, to write legal essays or to give legal opinions, however solemnly requested and however great the national emergency. See the correspondence between Secretary of State Jefferson and Chief Justice Jay, 3 Johnson, Correspondence and Public Papers of John Jay, 486-89. Unlike the role allowed to judges in a few state courts and to the Supreme Court of Canada, our exclusive business is litigation. The requisites of litigation are not satisfied when questions of constitutionality though conveyed through the outward forms of a conventional court proceeding do not bear special relation to a particular litigant. The scope and consequences of our doctrine of judicial review over executive and legislative action should make us observe fastidiously the bounds of the litigious process within which we are confined. No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to all. Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499.
In the familiar language of jurisdiction, these Kansas legislators must have standing in this Court. What is their distinctive claim to be here, not possessed by every Kansan? What is it that they complain of, which could not be complained of here by all their fellow citizens? The answer requires analysis of the grievances which they urge.
They say that it was beyond the power of the Kansas legislature, no matter who voted or how, to ratify the Child Labor Amendment because for Kansas there was no Child Labor Amendment to ratify. Assuming that an amendment proposed by the Congress dies of inanition after what is to be deemed a 'reasonable' time, they claim that, having been submitted in 1924, the proposed Child Labor Amendment was no longer alive in 1937. Or, if alive, it was no longer so for Kansas because, by a prior resolution of rejection in 1925, Kansas had exhausted her power. In no respect, however, do these objections relate to any secular interest that pertains to these Kansas legislators apart from interests that belong to the entire commonalty of Kansas. The fact that these legislators are part of the ratifying mechanism while the ordinary citizen of Kansas is not, is wholly irrelevant to this issue. On this aspect of the case the problem would be exactly the same if all but one legislator had voted for ratification.
Indeed the claim that the Amendment was dead or that it was not longer open to Kansas to ratify, is not only not an interest which belongs uniquely to these Kansas legislators; it is not even an interest special to Kansas. For it is the common concern of every citizen of the United States whether the Amendment is still alive, or whether Kansas could be included among the necessary 'three-fourths of the several States.'
These legislators have no more standing on these claims of unconstitutionality to attack 'Senate Concurrent Resolution No. 3' than they would have standing here to attack some Kansas statute claimed by them to offend the Commerce Clause, U.S.C.A.Const. art. 1, § 8, cl. 3. By as much right could a member of the Congress who had voted against the passage of a bill because moved by constitutional scruples urge before this Court our duty to consider his arguments of unconstitutionality.
Clearly a Kansan legislator would have no standing had be brought suit in a federal court. Can the Kansas Supreme Court transmute the general interest in these constitutional claims into the individualized legal interest indispensable here? No doubt the bounds of such legal interest have a penumbra which gives some freedom in judging fulfillment of our jurisdictional requirements. The doctrines affecting standing to sue in the federal courts will not be treated as mechanical yardsticks in assessing state court ascertainments of legal interest brought here for review. For the creation of vast domain of legal interests is in the keeping of the states, and from time to time state courts and legislators give legal protection to new individual interests. Thus, while the ordinary state taxpayer's suit is not recognized in the federal courts, it affords adequate standing for review of state decisions when so recognized by state courts. Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853; Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206, Ann.Cas.1917B, 287.
But it by no means follows that a state court ruling on the adequacy of legal interest is binding here. Thus, in Tyler v. Judges of the Court of Registration, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252, the notion was rejected that merely because the Supreme Judicial Court of Massachusetts found an interest of sufficient legal significance for assailing a statute, this Court must consider such claim. Again, this Court has consistently held that the interest of a state official in vindicating the Constitution of the United States gives him no legal standing here to attack the constitutionality of a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U.S. 138, 24 S.Ct. 51, 48 L.Ed. 125; Braxton County Court v. West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450; Marshall v. Dye, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206; Stewart v. Kansas City, 239 U.S. 14, 36 S.Ct. 15, 60 L.Ed. 120 Nor can recognition by a state court of such an undifferentiated, general interest confer jurisdiction on us. Columbus & Greenville Ry. v. Miller, 283 U.S. 96, 51 S.Ct. 392, 75 L.Ed. 861, reversing Miller v. Columbus & Greenville Ry., 154$ Miss. 317, 122 So. 366. Contrariwise, of course, an official has a legally recognized duty to enforce a statute which he is charged with enforcing. And so, an official who is obstructed in the performance of his duty under a state statute because his state court found a violation of the United States Constitution may, since the Act of December 23, 1914, 38 Stat. 790, ask this Court to remove the fetters against enforcement of his duty imposed by the state court because of an asserted misconception of the Constitution. Such a situation is represented by Blodgett v. Silberman, 277 U.S. 1, 48 S.Ct. 410, 72 L.Ed. 749, and satisfied the requirement of legal interest in Boynton v. Hutchinson, 291 U.S. 656, 54 S.Ct. 457, 78 L.Ed. 1048, certiorari dismissed on another ground in 292 U.S. 601, 54 S.Ct. 639, 78 L.Ed. 1464.
We can only adjudicate an issue as to which there is a claimant before us who has a special, individualized stake in it. One who is merely the self-constituted spokesman of a constitutional point of view can not ask us to pass on it. The Kansas legislators could not bring suit explicitly on behalf of the people of the United States to determine whether Kansas could still vote for the Child Labor Amendment. They can not gain standing here by having brought such a suit in their own names. Therefore, none of the petitioners can here raise questions concerning the power of the Kansas legislature to ratify the Amendment.
This disposes of the standing of the three members of the lower house who seek to invoke the jurisdiction of this Court. They have no standing here. Equally with out litigious standing is the member of the Kansas Senate who voted for 'Senate Concurrent Resolution No. 3'. He cannot claim that his vote was denied any parliamentary efficacy to which it was entitled. There remains for consideration only the claim of the twenty nay voting senators that the Lieutenant-Governor or Kansas, the presiding officer of its Senate, had, under the Kansas Constitution, no power to break the tie in the senatorial vote on the Amendment, thereby depriving their votes of the effect of creating such a tie. Whether this is the tribunal before which such a question can be raised by these senators must be determined even before considering whether the issue which they pose is justiciable. For the latter involves questions affecting the distribution of constitutional power which should be postponed to preliminary questions of legal standing to sue.
The right of the Kansas senators to be here is rested on recognition by Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505, of a voter's right to protect his franchise. The historic source of this doctrine and the reasons for it were explained in Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759. That was an action for $5,000 damages against the Judges of Elections for refusing to permit the plaintiff to vote at a primary election in Texas. In disposing of the objection that the plaintiff had no cause of action because the subject matter of the suit was political, Mr. Justice Holmes thus spoke for the Court: 'Of course the petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years, since Ashby v. White, 2 Ld.Raym. 938, 3 Ld.Raym. 320, and has been recognized by this Court.' 'Private damage' is the clue to the famous ruling in Ashby v. White, supra, and determines its scope as well as that of cases in this Court of which it is the justification. The judgment of Lord Holt is permeated with the conception that a voter's franchise is a personal right, assessable in money damages, of which the exact amount 'is peculiarly appropriate for the determination of a jury', see Wiley v. Sinkler, 179 U.S. 58, 65, 21 S.Ct. 17, 20, 45 L.Ed. 84, and for which there is no remedy outside the law courts. 'Although this matter relates to the parliament,' said Lord Holt, 'yet it is an injury precedaneous to the parliament, as my Lord Hale said in the case of Bernardiston v. Soame, 2 Lev. 114, 116. The parliament cannot judge of this injury, nor give damage to the plaintiff for it: they cannot make him a recompense.' 2 Ld.Raym. 938, 958.
The reasoning of Ashby v. White and the practice which has followed it leave intra-parliamentary controversies to parliaments and outside the scrutiny of law courts. The procedures for voting in legislative assemblies-who are members, how and when they should vote, what is the requisite number of votes for different phases of legislative activity, what votes were cast and how they were counted-surely are matters that not merely concern political action but are of the very essence of political action, if 'political' has any connotation at all. Field v. Clark, 143 U.S. 649, 670, 12 S.Ct. 495, 36 L.Ed. 294, et seq.; Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 66 L.Ed. 505. In no sense are they matters of 'private damage'. They pertain to legislators not as individuals but as political representatives executing the legislative process. To open the law courts to such controversies is to have courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies. If the doctrine of Ashby v. White vindicating the private rights of a voting citizen has not been doubted for over two hundred years, it is equally significant that for over two hundred years Ashby v. White has not been sought to be put to purposes like the present. In seeking redress here these Kansas senators have wholly misconceived the functions of this Court. The writ of certiorari to the Kansas Supreme Court should therefore be dismissed.

## Notes

{note|1|1}} For an early instance of the abstention of the King's Justices from matters political, see the Duke of York's Claim to the Crown, House of Lords, 1460, 5 Rot.Parl. 375, reprinted in Wambaugh, Cases on Constitutional Law, 1.
2 See e.g. the opinion of Mr. Justice Iredell in Chisholm v. Georgia, 2 Dall. 419, 429, 1 L.Ed. 440; concurring opinion of Mr. Justice Johnson in Fletcher v. Peck, 6 Cranch 87, 143, 3 L.Ed. 162; and the cases collected in the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688.
3 This is subject to some narrow exceptions not here relevant. See, e.g., McKnett v. St. Louis & San Francisco Ry., 292 U.S. 230, 54 S.Ct. 690, 78 L.Ed. 1227.
4 As to advisory opinions in use in a few of the state courts, see J. B. Thayer, Advisory Opinions, reprinted in Legal Essays by J. B. Thayer, at 42 et seq.; article on 'Advisory Opinions,' 1 Enc.Soc.Sci. 475. As to advisory opinions in Canada, see Attorney-General for Ontario v. Attorney-General for Canada (1912) A.C. 571. Speaking of the Canadian system, Lord Chancellor Haldane, in Attorney General for British Columbia v. Attorney General for Canada (1914) A.C. 153, 162, said: 'It is at times attended with inconveniences, and it is not surprising that the Supreme Court of the United States should have steadily refused to adopt a similar procedure, and should have confined itself to adjudication on the legal rights of litigants in actual controversies.' For further animadversions on advisory pronouncements by judges, see Lord Chancellor Sankey in In re The Regulation and Control of Aeronautics in Canada (1932) A.C. 54, 66: 'We sympathize with the view expressed at length by Newcombe, J., which was concurred in by the Chief Justice (of Canada) as to the difficulty which the Court must experience in endeavoring to answer questions put to it in this way.'
Australia followed our Constitutional practice in restricting her courts to litigious business. The experience of English history which lay behind it was thus put in the Australian Constitutional Convention by Mr. (later Mr. Justice) Higgins: 'I feel strongly that it is most inexpedient to break in on the established practice of the English law, and secure decisions on facts which have not arisen yet. Of course, it is a matter that lawyers have experience of every day, that a judge does not give the same attention, he can not give that same attention, to a suppositious case as when he feels the pressure of the consequences to a litigant before him. * * * But here is an attempt to allow this High Court, before cases have arisen, to make a pronouncement upon the law at will be binding. I think the imagination of judges, like that of other persons, is limited, and they are not able to put before their minds all the complex circumstances which may arise and which they ought to have in their minds when giving a decision. If there is one thing more than another which is recognized in British jurisprudence it is that a judge never gives a decision until the facts necessary for that decision have arisen.' Rep.Nat.Austral.Conv.Deb. (1897) 966 67.
5 See the series of cases beginning with Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436, through United States v. West Virginia, 295 U.S. 463, 55 S.Ct. 789, 79 L.Ed. 1546.
6 A quick summary of the jurisdiction of this Court over state court decisions leaves no room for doubt that the fact that the present case is here on certiorari is wholly irrelevant to our assumption of jurisdiction. Section 25 of the First Judiciary Act gave reviewing power to this Court only over state court decisions denying a claim of federal right. This restriction was, of course, born of fear of disobedience by the state judiciaries of national authority. The Act of September 6, 1916, 39 Stat. 726, withdrew from this obligatory jurisdiction cases where the state decision was against a 'title, right, privilege, or immunity' claimed to exist under the Constitution, laws, treaties or authorities of the United States. This change, which was inspired mainly by a desire to eliminate from review as of right of cases arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., left such review only in cases where the validity of a treaty, statute or authority of the United States was drawn into question and the decision was against the validity, and in cases where the validity of a statute of a state or a state authority was drawn into question on the grounds of conflict with federal law and the decision was in favor of its validity.
The Act of February 13, 1925, 43 Stat. 936, 937, extended this process of restricting our obligatory jurisdiction by transferring to review by certiorari cases in which the state court had held invalid an 'authority' claimed to be exercised under the laws of the United States or in which it had upheld, against claims of invalidity on federal grounds, an 'authority' exercised under the laws of the states. Neither the terms of these two restrictions nor the controlling comments in committee reports or by members of this, Court who had a special share in promoting the Acts of 1916 and 1925, give any support for believing that by contracting the range of obligatory jurisdiction over state adjudications Congress enlarged the jurisdiction of the Court by removing the established requirement of legal interest as a threshold condition to being here.
Nor does the Act of December 23, 1914, 38 Stat. 790, touch the present problem. By that Act, Congress for the first time gave this Court power to review state court decisions sustaining a federal right. For this purpose it made certiorari available. The Committee reports and the debates on this Act prove that its purpose was merely to remove the unilateral quality of Supreme Court review of state court decisions on constitutional questions as to which this Court has the ultimate say. The Act did not create a new legal interest as a basis of review here; it built on the settled doctrine that an official has a legally recognizable duty to carry out a statute which he is supposed to enforce.
Thus, prior to the Act of 1914, the Kentucky case, Chandler v. Wise, 307 U.S. 474, 59 S.Ct. 992, 83 L.Ed. --, could not have come here at all, and prior to 1916, the Kansas case would have come here, if at all, by writ of error. By allowing cases from state courts which previously could not have come here at all to come here on certiorari the Act of 1914 merely lifted the previous bar-that a federal claim had been sustained-but left every other requisite of jurisdiction unchanged. Similarly, no change in these requisites was affected by the Acts of 1916 and 1925 in confining certain categories of litigation from the state courts to our discretionary instead of obligatory reviewing power.