```

[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[The Constitution of the United States of America (With Annotations)]
[Article V. Mode of Amendment]
[From the U.S. Government Printing Office, www.gpo.gov]

[[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).
```