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is a sufficient assertion of an adverse power to create that
impasse necessary for adjudication. The actions of the de-
fendant in refusing to give full effect to the state's rescis-
sion, both lets stand the prior ratification which the state
no longer supports and refuses to recognize its present po-
sition, and gives rise to a fully ripe conflict of the type

proper for the courts to resolve. (Id. at 1123) Having determined that the issues were properly before the court, Judge Callister moved on to a discussion of whether the political question doctrine barred consideration. His discussion began with an analysis of whether the issues concerning the interpretation of Article V were "textually committed" (under the doctrine of Baker v. Carr, 369 U.S. 186, 217 (1962)) to Congress. At the outset, Judge Callister rejected the defendant's view that Congress had been granted exclusive and plenary control over all phases of, and questions arising out of, the amendatory procedure:

The defendant argues that the whole of this case is barred from judicial consideration because the Congress is granted exclusive and plenary control over all phases of and questions arising out of the amendatory procedure. A three-judge court in Dyer v. Blair, 390 F.Supp. 1291 (1975) addressed this proposition. Judge Stevens (now Justice Stevens) wrote:

There is force to ... [this] argument since it
was expressly accepted by four Justices of the Su-
preme Court in Coleman v. Miller, 307 U.S. 433,
59 S.Ct. 972, 83 L.Ed. 1385. But since a majority of
the Court refused to accept that position in that
case, and since the Court has on several occasions
decided questions arising under article V, even in
the face of “political question" contentions, that
argument is not one which a District Court is free

to accept.
Dyer v. Blair, supra at 1299, 1300 (footnotes omitted).

Furthermore, a review of article V reveals that the judiciary, while only dealing with article V in a handful of cases, has nevertheless dealt with virtually all the significant portions of that article. These decisions considered and interpreted the following underlined portions of article V:

The Congress, whenever two-thirds of both
Houses shall deem it necessary, shall propose
Amendments to this Constitution, . . . which .
shall be valid to all Intents and Purposes, as part
of this Constitution, when ratified by the Legisla-
tures 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 ...
U.S. Const. Art. V (emphasis . . . added). .

Finally, as will be pointed out later, giving plenary power to Congress to control the amendment process runs completely counter to the intentions of the founding fathers in including article V with its particular structure in the Constitution. Therefore, in accordance with the holding in Dyer and the overwhelming precedent established in the case law arising under article V, the position taken by the defendant that the Congress is empowered to decide all issues concerning the amendment process is clearly foreclosed, leaving this Court with the more difficult question of determining the various allocations of power under article V and the areas wherein judicial review is precluded.

[Id. at 1125-1126 (footnotes omitted)] Rather than giving Congress plenary power over the amendment process, Judge Callister concluded, after a lengthy historical review, that Article V divided the power to amend the Constitution between Congress and the states, setting up a "careful balance between the participants” in the process. [Id. at 1128] Therefore, he found, it was entirely proper for the judiciary-an outside partyto determine questions arising under Article V:

From the foregoing it becomes clear that the precise ques-
tions, presented to this Court are not barred from judicial
review because of a textual commitment to a coordinate
branch of government. First, it is evident from the balance
struck between the two participants in the amendment
process that the framers did not intend either of those two
parties to be the final arbiter of the process. It seems more
logical that the courts, as a neutral third party, and
having the responsibility of "guardian of the Constitution"
decide these questions raised under article V because the
amending power was split between Congress and the
states. The question of whether or not a rescission of a
prior ratification is a proper exercise of a state's power
under article V is one that is not committed to Congress,
and should not be, but is appropriate for judicial interpre-
tation under the Court's authority to "say what the law
is.” Furthermore, while the question of the reasonableness
of the ratification period is one committed to Congress,
such is not the question presented here. Rather, the ques-
tion presented to the Court is one of procedure under arti-
cle V and these procedural questions have been held to be
ones which the Court must decide. Dyer v. Blair, supra at
1301 n.24; National Prohibition Cases, 253 U.S. 350, 386, 40
S. Ct. 486, 64 L. Ed. 946 (1920). [Id. at 1135–1136 (footnotes

omitted)] Having ruled that the "textually demonstrable commitment" for mulation did not bar consideration of the suit, Judge Callister turned to the other possible indicia of a political question, next analyzing whether the issues presented were not suitable for judi cial determination because of a “lack of judicially discoverable and manageable standards." Relying heavily on Justice Rehnquist's concurring opinion in Goldwater v. Carter, supra, the judge held that both the efficacy of a rescission and the propriety of changing an established time limitation were the type of questions which "must be interpreted with the kind of consistency that is characteristic of . . . judicial as opposed to political, decision making. To subject these questions to a variety of inconsistent interpretations or approaches would create an incurable uncertainty regarding the validity of the acts of the participants, severely crippling the amendment process.(Id. at 1139] Judge Callister further determined that "prudential considerations" did not require a different conclusion under either past Supreme Court decisions or historical precedent. In particular, he dismissed the case of Coleman v. Miller, relied on by the defendant, as inapplicable for a variety of legal and historical reasons.

Turning to the merits of the case, Judge Callister held first that rescission of a prior ratification was a proper exercise of the state's authority under Article V to act on proposed amendments. He reasoned that such a rescission gave effect to the "will of the people:”

Considering that an amendment cannot become part of the Constitution until a proper consensus of the people has been reached and it is the exclusive role of the states to determine what the local sentiment is, it logically follows that the subsequent act of rescission would promote the democratic ideal by giving a truer picture of the people's will as of the time three-fourths of the states have acted in affirming the amendment. To allow a situation where either the first act of a state is irrevocable or where a rejection can be changed by a ratification, but not permit rescission, would permit an amendment to be ratified by a technicality-where clearly one is not intended-and not because there is really a considered consensus supporting the amendment which is the avowed purpose of the amendment procedure. Furthermore, an irrevocable ratification prior to the time that three-fourths have acted would completely disassociate the democratic notice of a considered consensus from the ratification procedure and create the very real possibility that an amendment could become part of the Constitution when the people have not been unified in their consent. (Id. at 1148-1149 (footnote

omitted)] The judge also rejected NOW's argument (see discussion supra, page 317) that Idaho's rescission resolution was procedurally faulty, noting, inter alia, that once the state legislature forwarded an official certificate of its action to the Federal Government, “the notice is conclusive upon it and the courts as to both the truthfulness of the statements it contains and the propriety of the procedure by which it was promulgated.” (Id. at 1150]

Finally, addressing the extension issue, Judge Callister held that while Congress could act at the time it proposed an amendment to set a period within which states' ratifications would be valid, or, if it chose to set no time period, determine after ratifications were received whether they were sufficiently contemporaneous to make the amendment effective, Congress could not extend a period it had previously fixed. In any event, Judge Callister ruled that the set

ting of the time period—like the proposal of the amendment itself-could only be done by a two-thirds vote of both Houses of Congress (since the bodies were exercising Article V powers), and therefore the simple majorities obtained for the extension resolution, H.J. Res. 638, were inadequate.

Although the court thus ruled for the plaintiffs on all the issues in the suit, Judge Callister refused to grant their requested injunctive relief, stating that in view of his holdings "little would be served in granting the plaintiffs' request for an order directing the Administrator of the General Services to return Idaho's ratification papers, and barring him from accepting further ratifications.” [Id. at 1154]

On January 4, 1982, NOW filed notices of appeal of Judge Callister's decision and order to both the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court. On January 6, the defendant GSA Administrator also filed notices of appeal to both courts. (The defendant filed an amended notice of appeal to the Ninth Circuit on January 12, correcting a clerical error.)

On January 8, 1982, NOW filed a jurisdictional statement in its direct appeal to the Supreme Court (No. 81-1282-ADX). The organization also filed a petition for a writ of certiorari before judgment [N. 81-1283-CFX] from its pending appeal in the Ninth Circuit, where the case had been docketed [No. 82-3008] but no action taken. The filings were essentially identical, and, according to NOW, the questions presented for the Supreme Court's review were the following:

1. Whether Congress' decision to give states more time to consider the ratification of a proposed constitutional amendment is subject to federal judicial review despite the acknowledged unreviewability, as nonjusticiable political questions, of both (a) Congress' decision whether to treat particular ratifications as sufficiently timely and contemporaneous, and (b) Congress' decision whether to set any initial time limit at all.

2. Whether, if Congress' decision to extend time is judicially reviewable, the Constitution should be construed to freeze the 95th Congress into the time limit proposed by the 92nd in the resolving clause but not in the text of the Equal Rights Amendment; and whether, if Congress did have the power to extend the time for this amendment's consideration, the Constitution required that it do so by a two-thirds vote.

3. Whether, given the necessity for some national body to determine the national rules for combining or tallying a sequence of official state ratifications and rescissions, the Federal judiciary may undertake that task rather than entrusting it to Congress.

4. Whether, if Congress' treatment of purported rescissions is judicially reviewable, the Constitution should be construed to compel Congress to treat every state rescission of the proposed Equal Rights Amendment as automatically erasing the formal ratification that preceded it,

even if those voting for rescission did so with official
advice that such action would have no legal effect.

5. Whether these matters may be adjudicated by an Ar-
ticle III court in advance of the claimed ratification of the
proposed Equal Rights Amendment by three-fourths of the
states, at the behest of state legislators whose only "inter-
est" in the lawsuit is that they voted in favor of their
state's resolution of ratification or of rescission. (Jurisdic-

tional Statement, January 8, 1982, at i-ii] NOW argued that these questions were substantial and clearly warranted Supreme Court consideration. This was primarily so, the organization contended, because until the decision of the district court, “the process of amending the Constitution-a delicately political exercise—had never before been stopped in its tracks by a federal court.[Id. at 9) Beyond the specific errors which NOW believed the district court had committed was an issue which the organization said required a decision by the Supreme Court-the essence of the relationship between Congress, the state legislatures, and the Federal judiciary in the amendment-ratification process. NOW argued:

Whether the proposed Equal Rights Amendment will be duly ratified before the time set by Congress has expired on June 30, 1982, is, of course, unknowable—whether or not this Court reviews the ruling below. But this no one can doubt: It would be intolerable for the outcome of the struggle that has meant so much to so many for so long to be dictated or distorted by the unprecedented and unreviewed ruling of a single federal judge-a judge who has held that Congress, acting with the approval of the President after extensive legislative hearings on the constitutional issues involved, is barred by Article V from adding three years and three months to the time an earlier Congress had proposed for deliberation and decision on the Equal Rights Amendment.

If the modest step Congress took in this instance truly deserves to be struck down, this Court rather than an individual federal judge should deliver the fatal blow. If, as NOW urges, the blow was indefensible, this Court should

seal the wound while time remains. (Id. at 10) Turning to its specific objections to the lower court decision, NOW maintained once again that the decision as to whether to give states more time to consider an amendment's ratification was a subject “committed to the surveillance of Congress.” It was, said NOW, a nonjusticiable political question, and this conclusion was clearly buttressed by the Coleman v. Miller and Dillon v. Gloss decisions. Further, even if the matter was deemed justiciable, NOW contended that the extension's validity would have to be sustained because the original seven-year limitation was not part of the text of the proposed amendment (it was in the resolving clause) and therefore could be altered by Congress. There was "no basis," the organization argued, for a claim that the seven-year language conferred upon anyone "a vested right to have the proposed amend

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