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1868, 30 states were listed including those that had rescinded and those that had ratified over their prior rejection. Also, Georgia was included in the proclamation. 15 Stat. 708-711 (1868). The proclamation indicated that the amendment had been ratified by these states "being three fourths and more of the several States of the Union." Cong. Globe, supra at 4266 (emphasis added).

Inasmuch as Congress did not act to declare the fourteenth amendment part of the Constitution until additional ratification over and above the ratifications of three-fourths of the loyal states. had been certified, it is plausible to infer that the view expressed by Senator Sumner and Congressman Bingham that the amendment had become effective before the further ratifications or attempted withdrawals were made had been rejected. The resolution adopted by Congress declaring the amendment part of the Constitution, however, is not inconsistent with their thesis, particularly because no debate or legislative record can be found to indicate whether the "three fourths and more of the several states" accepts the view that only 22 states constitutes the three fourths, or whether 28 states were needed to fulfill the three-fourths requirement. Therefore, because the question of whether the seeding states should be counted in ascertaining the number of states necessary for ratification by three-fourths was inconclusively dealt with, it is impossible to find in this legislative history a clear endorsement of the proposition that Congress based its decision to declare the fourteenth amendment part of the Constitution on the fact that it found both [1144] rejections and rescissions ineffective. Furthermore, if the Sumner-Bingham view is rejected and a full 28 out of 37 states were needed to constitute three-fourths, the fact that 30 states were included in the declaration of ratification makes it similarly impossible to determine whether or not Congress really decided that the two rescinding states, Ohio and New Jersey, were needed in order for the amendment to become part of the Constitution. In fact, it might be safe to say that the inclusion of the additional two states obviated the need to make that decision, and thus one was not made.

In appraising the argument that Congress conclusively dealt with the questions of rejection and rescission in its promulgation of the fourteenth amendment, it is important to note that Congress has never considered that decision to be determinative of the issues. This is demonstrated by the actions of essentially the same Congress that dealt with the fourteenth amendment when it was presented with the problems of the fifteenth amendment. With the fifteenth amendment, again Ohio reversed itself, this time by approving the amendment after first rejecting it. Cong.Globe, 41st Cong., 2d Sess. 110-111 (1869). New York, on the other hand, repudiated its earlier assent. Cong.Globe, 41st Cong., 2d Sess. 377 (1870). In discussing these developments on the floor of the Senate, Roscoe Conkling of New York took the position that a ratification was irrevocable but that a rejection had no legal effect whatsoever. Id. at 1477. Senator Davis of Kentucky argued that a vote by a state legislature either to reject or to ratify was final and conclusive. Id. at

1479.52 Significantly, neither mentioned the adoption of the fourteenth amendment nor the resolution of Congress declaring it to be in effect. A resolution including Ohio and New York was introduced in Congress to proclaim the adoption of the amendment, but it died without vote. 53 The Secretary of State later proclaimed the adoption of the amendment by a certification that included Ohio and New York, the latter's attempted withdrawal, however, was noted. This certification was not made, however, until two additional states had ratified, thus obviating the necessity of reliance on either Ohio or New York's action. Id. at 2290. If the fourteenth amendment did resolve the question of rejection and rescission, it is surprising it was not referred to as a precedent in this situation.

The lack of a definitive determination of the questions of rescission or rejection by Congress during the period following the fourteenth amendment was highlighted by the introduction of a bill that would make the attempted revocation of a state's consent to an amendment null and void. Cong. Globe, 41st Cong., 2nd Sess. 28 (1869). Although the measure passed the House, Cong. Globe, 41st Cong., 2d Sess. 5356 (1870), the Senate Judiciary Committee reported it out adversely; and the bill died without further action. Cong. Globe, 41st Cong., 3rd Sess. 1381 (1871). Congressional action since the Civil War era has been equally indecisive. 54

From the foregoing it is plain that Congress has not come to any conclusion regarding the question of rescission. The fact that congressional action could be viewed at best as equivocal would indicate that even [1145] if the Court felt compelled to defer to a decision made by Congress, it would be impossible to do so. Therefore. the application of the political question limitation in this situation is not mandated by prudential considerations; furthermore, its ap plication would be highly inappropriate in that it would work to further confusion in an area where stability should be considered a premium.

The alternative ground advanced for following the Coleman hold ing on the nature of the question of the validity of a rejection is that analytically a rejection and a rescission should be treated the same, i.e., both "political questions," since they are both but nega tive expressions of a state's power to ratify. The Court is disin clined to accept this argument because the nature of the question of the effectiveness of a rescission of a prior ratification is essen tially different from the question presented in Coleman as to the effect of a ratification after a prior rejection. Thus, it is appropriate

52 "Both Conkling and Davis argued from the premise that ratification by a state legislatur had the same effect as would ratification by a convention in case that method were chosen b Congress. Both assumed that ratification by a convention would be final. Davis made the furthe assumption that rejection by a convention would exhaust the power of a state to act on a amendment.

Note. The Constitutional Law of Constitutional Amendments, 26 Notre Dame Lawyer 185, 2 n. 70 (1951).

53 The resolution of promulgation read much the same as the resolution adopted by the 40t Congress to promulgate the fourteenth amendment, but Congress refused to act on Cong.Globe, 41st Cong., 2d Sess. 1444, 2738, 3142 (1870).

54 For example, the following acts have been initated in Congress: S. 2307, 90th Cong., 1s Sess. (1967); S. 623, 91st Cong. Ist Sess. (1969); S. 215, 92nd Cong., 1st Sess. (1971); S. 1271, 93Cong., 1st Sess. (1973), most would confirm the state's right to rescind but none have receive enough support to be enacted as law.

to treat one as presenting a "political question" and the other as one proper for judicial declaration.

To understand the Court's view that different questions are presented by rescission and rejection which should not be treated the same, it is necessary to understand that this perception stems from the basic relationship between the states and Congress in the amending process and particularly in the procedure of determining whether or not there is sufficient consent to warrant the constitutional change. First, it is important to recognize that it is the state's role to act as the voice of the people in expressing their consent to the proposed amendment. Second, it is also necessary to recognize that Congress under its power to determine whether there is a reasonably contemporaneous consensus acts in coordinating the local expressions of consent by considering them in light of the lapse of time and change of circumstances since the amendment was proposed. Because of this relationship, it is clear that Congress' power to determine whether or not a state is part of the growing crescendo of consent does not come into play until the state has acted indicating that the people wish to be included as part of the consensus. And then Congress' authority is limited to only the question of contemporaneousness of the expression of consent and does not extend to a continuous monitoring of the continued existence of actual local consensus. Instead, Congress is bound by the official certifications of the state on that matter. Thus, the question in Coleman as to the effectiveness of a ratification following a rejection is reasonably "political" if it is understood that what the Congress is deciding is not whether the ratification in truth overturned the state's prior negative stance, clearly a matter beyond its authority to determine, but rather whether or not that ratification is within that reasonably contemporaneous time period so as to correspond with the other expressions of consent. If the state's rejection rather than ratification correlates with the contemporaneous time period established by Congress, then the later ratification which is beyond the reasonably contemporaneous time period would be ineffective. This would be the Congress' only grounds for finding a ratification after a rejection ineffective.

[21] A rescission, on the other hand, brings into play a different combination of responses which can best be understood by the following. In order to have a valid ratification of a proposed amendment, two elements must be found: (1) the state's determination of consent, and (2) the congressional assessment of contemporaneousness. The various acts of a state in considering a proposed amendment bring into play various combinations of these two factors. A rejection indicates the state's lack of consent and indefinitely bars the operation of Congress' authority in the adoption process, because clearly there is nothing for Congress to coordinate with the other expressions of consent. A state's certification of ratification expresses the existence of local consent and engages Congress' power to determine the timing requirements of a contemporaneous expression of consent. A rescission of a prior ratification indicates a reassessment of the state's expression of [1146] consent, and by terminating its consent, it suspends the need for a congressional deci

sion as to the contemporaneousness of the prior consent.55 Thus, a state's action in ratifying after a previous rejection would bring into play Congress' role of determining whether or not the ratification is effective, which by its very nature takes into consideration factors that are uniquely political. A rescission, on the other hand, revokes the state's assent to being included in the consensus suspending congressional or "political" inquiry.

If the question of the effectiveness of a ratification after a rejection and the effect of a rescission on a prior ratification are treated similarly as "political questions," it would, in effect, mean that Congress would have control over ultimately assessing whether or not there is continued local consent. For example, if Congress could refuse to recognize a state's rescission, it would mean that Congress would supplant the expression of the people's representative with its own assessment of consent by holding that the prior expression of consent is still valid. Such a broad interpretation of congressional powers would destroy the balance created in article V and remove the state's power to create a barrier to encroachment by the national government. Therefore, while it might be conceded that the effectiveness of a ratification in light of a prior rejection is proper for resolution by a political arm of government, the question of the effect of a rescission in light of a prior ratification does not not bring into play the same type of considerations, and thus, because the questions posed by a rescission are not proper for consideration by the political branch, they should be treated differently.

The application of the prudential consideration formulation of the "political question" doctrine to the procedural issues surrounding the problem of the constitutionality of the congressional extension of the ratification deadline is also not warranted. Nothing in the nature of the questions nor in the legislative history of the extension resolution is present which would convince the Court that the congressional enactment of the extension resolution is the type of determination by a political branch which the courts ought to unquestioningly adhere to.

From the Court's review of all the ramifications of the "political question" doctrine, there does not appear to be any compelling rea sons for it to withhold its jurisdiction with regard to the questions presented. Furthermore, the Court is persuaded that both the ques tions of the efficacy of a rescission and the proper procedure for es tablishing a time period for ratification are the type of question: that must be interpreted with the kind of consistency that is char acteristic of judicial rather than political decision making. What ever the outcome of these questions as they relate to the power vested by article V, they must interpreted consistently for each

55 An obvious reason that the congressional power to determine contemporaneousness is su pended is that there is no longer a statement of consent by the state to be associated with th other local expressions of consent. Also, it is eminently clear that Congress cannot nullify state's rescission under the powers it is given by article V. Looking at the essential questi Congress must consider in exercising its article V authority of determining a contemporaneou consensus, it is evident that to nullify a state's action on an amendment, Congress must deter mine that the basic social/economic, political milieu has so changed that the state's acta cannot be said to relate with the other expressions of consent. Such a determination, howeve would mean that the amendment is no longer viable, thus terminating all states' actions wit regard to the amendment.

amendment that may be proposed. The Court will now turn to a consideration of how these questions should be resolved.

D. Rescission

In addressing the question of whether or not a rescission of a prior ratification is a proper exercise of the state's authority under article V to act on proposed amendments, it must be noted that whatever authority the states have is derived solely [1147] from the Constitution itself.56 The critical portion of article V that the Court must examine provides that an amendment becomes part of the Constitution "when ratified by the Legislatures of three-fourths of the several States, or by Conventions. ... With reference to the phrase "when ratified", commentators 57 and courts have explored a variety of interpretations to what can best be termed "subsequent acts," i.e., the subsequent act of ratifying after a rejection or rescinding after a ratification. Three separate approaches have been postulated which are important to review in this Court's consideration of the question of the state's power to rescind.

The first approach to be considered contends that whatever action is initially taken by the state, whether rejection or ratification, exhausts the state's power under article V making any subsequent act to reverse the prior action a nullity. This approach was argued in Wise v. Chandler, 270 Ky. 1, 108 S.W.2d 1024 (1937) before the highest state court of Kentucky and was defended on the grounds that the power of a state legislature to ratify cannot be any greater than its alternative, the state convention. Since a convention exhausts its authority by its initial action, whatever that action may be, it would be consistent to view a legislature as having only the same amount of authority. Advocates of this position also argue that treating both acceptance and rejection as conclusive would lend a consistency and concreteness to the system which would benefit an already difficult process. Furthermore, this approach would arguably be consistent with the notion that when a state acts under its power to ratify, it is not legislating but exercising a ministerial or constituent function. The Chandler case was appealed to the Supreme Court and the Court granted certiorari but dismissed the case because it determined that the issues presented were moot. Therefore, the Court did not approve or disapprove this approach.58

The second approach postulated would condone only the act of ratification, and the negative expression of rejection or rescission would be treated as a nullity. This approach was relied upon by the State Supreme Court of Kansas in adjudicating the issues in Coleman v. Miller, 146 Kan. 390, 71 P.2d 518 (1937). This approach is premised on a literal reading of article V which speaks only of ratification. The argument follows that because the article does not confer upon the states the specific power to reject or rescind, but only to ratify, any of these negative acts cannot be recognized. Advocates of this position argue that greater efficiency would be given

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56 See footnote 21, supra.

57 See generally Orfield, supra. note 30 at 70-73 and the accompanying authority.

58 It can be persuasively argued that the court's ruling in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) effectively does away with the one-shot approach by at least tacitly indicating that a state might be able to ratify after a prior rejection.

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