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

897

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.

MODE OF AMENDMENT

ARTICLE V

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
898 ART. V—MODE OF AMENDMENT

4 66 CONG. GLOBE 921, 1424–1425, 1444–1447, 1483–1488 (1864). 5 National Prohibition Cases, 253 U.S. 350 (1920).

6Leser v. Garnett, 258 U.S. 130 (1922).

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.

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.

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
ART. V—MODE OF AMENDMENT 899

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.’’ 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 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

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

The Convention Alternative.—Because it has never successfully been invoked, the convention method of amendment is sur-
900 ART. V—MODE OF AMENDMENT

21The 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.

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.

Ratification.—In 1992, the Nation apparently ratified a longquiescent 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
ART. V—MODE OF AMENDMENT 901

26Seven-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). 28 256 U.S. 368 (1921). 29 Id., 374. 30 Id., 374–375.

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.

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

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

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
902 ART. V—MODE OF AMENDMENT

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. 32Supra, p. 126–127; infra, p. 1997. 33Thus, Professor Tribe wrote: ‘‘Article V says an amendment ‘shall be valid to

all Intents and Purposes, as part of this Constitution’ when ‘ratified’ by threefourths 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.

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

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

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,
ART. V—MODE OF AMENDMENT 903

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.

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

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 Twentyseventh 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
904 ART. V—MODE OF AMENDMENT

40See 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. 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). 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 constituAmendment. 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

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

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
ART. V—MODE OF AMENDMENT 905

tional 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. 45The Secretary was then responsible for receiving notices of ratification and

proclaiming adoption. 46 15 Stat. 706, 707. 47 15 Stat. 709. 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.

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.

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
906 ART. V—MODE OF AMENDMENT

49F.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.

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.

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

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-
ART. V—MODE OF AMENDMENT 907

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). 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

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.

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
908 ART. V—MODE OF AMENDMENT

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). 55See, 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. 57During 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. 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. 59Quoted supra, text at n. 30.

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.

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

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
ART. V—MODE OF AMENDMENT 909

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.

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

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
910 ART. V—MODE OF AMENDMENT

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. §§ 701–706,

though there may well be questions about one possible exception, the ‘‘committed

to agency discretion’’ provision. Id., § 701(a)(2). 65 282 U.S. 716 (1931). 66 Hawke v. Smith, 253 U.S. 221, 231 (1920).

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

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.

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
ART. V—MODE OF AMENDMENT 911

67Leser v. Garnett, 258 U.S. 130, 137 (1922). 68 Act of April 20, 1818, § 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, § 2; Reorg. Plan No. 20 of 1950, § 1(c), 64 Stat. 1272. 70 National Archives and Records Administration Act of 1984, 98 Stat. 2291, 1

U.S.C. § 106b. 71 256 U.S. 368, 376 (1921). 72Leser 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.

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

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.

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
912 ART. V—MODE OF AMENDMENT

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 Justhe 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.

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
ART. V—MODE OF AMENDMENT 913

tice 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.

77The 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).

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).

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

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.