to the amendment process and lead to less confusion in that only positive acts would be counted towards final ratification. The United States Supreme Court had an opportunity to consider this approach when it reviewed the decision of the Kansas court. From the Supreme Court's opinion in the Coleman matter it appears that this approach found little approval. In the "Opinion of the Court" Justice Hughes wrote that they found "no reason for disturbing the decision of the Supreme Court of Kansas . . . its judgment is affirmed but upon the grounds stated in this opinion." Coleman, 307 U.S. at 456, 59 S.Ct. at 983 (emphasis added). Thus they rejected the approach of the Kansas court and chose to base their decision on other criteria. A third approach which has received support is that both the subsequent acts of ratification after a rejection and rescission after ratification should be recognized. Of course, one clear limitation is evident which is that any subsequent rescission after a prior ratification could not come after three-fourths of the states had ratified, for at that point the amendment automatically becomes part of the Constitution and a [1148] state cannot withdraw its consent thereafter. This approach is grounded on the argument that it is illogical to impute more finality to ratification than to rejection, especially since the act of ratification itself has no binding effect until concurred in by the requisite three-fourths majority. Furthermore, this view is justified on the grounds that not allowing a withdrawal of approval might make an overly-cautious legislature hesitant to act, or bind an overly-zealous legislature to a position which upon mature reflection it does not support. From the approaches outlined above, in order to decide which should be controlling in the Court's determination of the validity of a state's rescission in light of its powers under article V, it is necessary to understand what a state is doing when it acts on a proposed amendment. First, it must be observed that the drafters of the Constitution considered it important that the power to change the Constitution must in some respect draw on that same power which is the source of the original authority of the Constitution-"the consent of the people." The structure of article V indicates that it is the state that must ascertain the existence of local consent and reflect that sentiment when acting on an amendment. "[W]hen . . [the requisite three fourths of the States are] united in the desire of a particular amendment, that amendment must infallibly take place." Federalist Paper #85 (Hamilton). All of the cases which have considered article V have reaffirmed the vision of the founding fathers that the essential democratic value of the will of the people be inextricably linked with the state's action in considering ratification. For example, the Court in Hawke v. Smith, No. 1, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920), indicated that the role of ratification given to the states called for "action by deliberative assemblages representative of the people, which it was assumed would voice the will of the people" Id. at 227, 40 S.Ct. at 497. The court went on to say that "ratification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the State to a proposed amendment." Id. at 229, 40 S.Ct. at 498. The court in Dillon v. Gloss, supra, gave the state's role in the ratification process a far more careful examination. They wrote: Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several States and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assem= blies, and (b) that ratification by these assemblies in threefourths of the States shall be taken as a decisive expression of the people's will and be binding on all. Id. 256 U.S. at 374, 41 S.Ct. at 512 (emphasis added). Thus, the essence of a state's role in considering an amendment is to act as the mechanism whereby the will of the people is expressed. 59 [22] 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-[1149] fourths of the states have acted in affirming the amendment.60 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 notion 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 con sent. The only apparent criticism of the approach which would recognize a rescission after a ratification is that to allow a change after a ratification would create confusion and uncertainty and essentially paralyze the process. This objection has little merit when it is realized that all Congress or its designate must do is count the state's most recent official certification to determine whether or not three-fourths have ratified. In addition a brief review of amendatory history reveals that as a standard practice, questions regarding ratifications have usually been viewed in favor of disqualifica ** It could be argued that if true democratic consensus is the goal of the amendment process then the people should act directly on an amendment by way of referendum. But the courts have directly addressed this question and indicated that while a consensus of the people is the goal of the amendment process, article V speaks only of state legislatures or state conventions. Thus it is only through the media of one of these state entities that the will of the people can be expressed. Kimble v. Swackhamer, 439 U.S. 1385, 99 S.Ct. 51, 58 L.Ed.2d 225 (1978); Hawke v. Smith, No. 1, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920); cf. Trombetta v. State of Florida, 353 F.Supp. 575 (M.D.Fla. 1973). so Orfield. supra, note 30 at 72. tion and have caused little, if any, confusion. For example, in the process of ratifying the twelfth amendment, a question arose as to the validity of New Hampshire's ratification.61 If New Hampshire's ratification would have been considered valid, they would have been the last state necessary for a three-fourths majority. Rather than proclaim the amendment part of the Constitution, the national government waited until another state ratified thus obviating the need for a resolution of the question. In the promulgation of the fifteenth amendment, two states changed their votes. 62 Resolutions were offered in Congress to resolve the questions of validity but the measures were buried in committee. The Secretary of State, who had the responsibility of counting the states' ratifications, withheld proclaiming the amendment part of the Constitution until sufficient votes were received so that a declaration could be made without the need of counting the disputed ratifications. A similar approach was taken in the nineteenth amendment. Again, two states changed their votes and again additional votes were accumulated in order to promulgate the amendment.63 Thus, uniformly where ratifications have been rescinded, the rescissions have been dignified by the national government by waiting and collecting additional ratifications to offset them. Parenthetically, no great confusion has been manifest. It seems clear from the statements of the founding fathers and from most courts in considering the amendment process that a ratification is linked to that great wellspring of legitimate constitutional power-the will of the people. The founding fathers were careful to make sure the Constitution was ratified by the consent of the people, and it follows that any amendment must again draw from that wellspring by securing a contemporaneous consensus before it can become a part of that original docu-[1150]ment. The states are the entity embodied with the power to speak for the people during the period in which the amendment is pending. To make a state's ratification binding with no right to rescind would give ratification a technical significance which would be clearly inappropriate considering that the Constitution through article V gives technical significance to a state's ratification at only one time-when threefourths of the states have acted to ratify. Until the technical threefourths has been reached, a rescission of a prior ratification is clearly a proper exercise of a state's power granted by the article V phrase "when ratified" especially when that act would give a truer picture of local sentiment regarding the proposed amendment. [23-25] Recognizing the validity of a state's power to rescind its prior ratification, the defendant challenges Idaho's rescission resolution arguing that it is procedurally faulty. Defendant maintains 61 The question that arose was regarding the actions of the Governor of New Hampshire in vetoing the resolution of that state's legislature to ratify the proposed amendment. Myers, The Process of Constitutional Amendment, Sen. Doc. No. 314, 76th Cong., 3d Sess. 34 (1940). 62 See discussion p. 1144, supra. 63 Leser v. Garnett, 258 U.S. 130, 42 S. Ct. 217, 66 L. Ed. 505 (1922), dealt with a challenge to the nineteenth amendment. The court wrote: The remaining contention is that the ratifying resolutions of Tennessee and of West Virginia are inoperative, because adopted in violation of the rules of legislative proce dure prevailing in the respective States. The question raised may have been rendered immaterial by the fact that since the proclamation the legislatures of two other States-Connecticut and Vermont-have adopted resolutions of ratification. Id. at 137, 42 S. Ct. at 218. that in passing the House Concurrent Resolution 10, Idaho violated its own rules by adopting the resolution by less than the two-thirds majority used to ratify. Without elucidating on the defendant's contentions, the Court would indicate that under the holding of Dyer v. Blair, supra, the "State legislatures . . . have the power and the discretion to determine for themselves how they should discharge the responsibilities committed to them by the federal government.. . . Moreover . . . there is no federal objection to the state legislatures' independent determination of their own voting requirements." Id. at 1307. Thus, the states have complete discretion over the procedural requirements regarding the requisite majorities to act under its article V powers. This would be true whether the state is exercising its affirmative power of ratification or the negative function of rescission. Furthermore, once the state legislature has forwarded an official certificate of their action to Congress 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. United States ex rel. Widenmann v. Colby, 265 F. 998 (D.C.Ct. of App. 1920); 64 Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 218, 66 L.Ed. 505 (1922); 65 Chandler Ev. Wise, 307 U.S. 474, 59 S.Ct. 992, 83 L.Ed. 1407 (1939). Therefore, I at this juncture it is not proper for the Court to review the procedure of the rescission resolution since proper certification has been made by the state to the national government. E. Extension The question whether it is a proper exercise of congressional authority under article V to alter a previously proposed time limitation for ratification, and if so by what majority, presents for the Court a question of constitutional interpretation of congressional authority, and an inquiry into the procedural aspects of exercising that power. Thus, the Court's inquiry is two-fold: First, does Congress under its power to "propose" the "Mode of Ratification" have the power to change its proposal once it has been made and sent to the state; second, if the initial proposal can be subsequently changed, may Congress act by less than a two-thirds majority. One related question [1151] that has been raised that should be dealt with at this time is whether or not a state's ratification resolution specifically acknowledging the ratification period set by Congress is impaired if the original time period is extended or whether it is a As was indicated in United States ex rel. Widenmann v. Colby, 265 F. 998 (D.C.Ct. of App. 1920) official notification received under 1 U.S.C. § 106(b) (then Section 205 of the Revised Statutes of the United States) is conclusive. It will be observed that by this section is (sic) was the duty of the Acting Secretary of State [now the Administrator of GSA], upon receiving official notice from three-fourths of the several states (Constitution, art. 5 (sic)) that the proposed amendment has been adopted, to issue his proclamation. He was not required, or authorized, to investigate and determine whether or not the notices stated the truth. To accept them as doing so, if in due form, was his duty. Id. at 999. In Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922), the Supreme Court stated: As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so was conclusive upon him. Id. at 137, 42 S.Ct. at 218. "conditional" ratification arguably prohibited by the amendment process. To begin with, the actions of Congress in relation to a proposed amendment must be properly characterized in order to approach the questions presented. First, it must be recognized that Congress' power to participate in the amendment process stems solely from article V. As Justice Stevens noted, "the 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 . . ." Dyer v. Blair, 390 F.Supp. 1291, 1303 (N.D.II. 1975) (emphasis added). Thus Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I. The power of Congress to set a time period in which ratification must be completed is derived from their function of setting the mode of ratification. See Dillon v. Gloss, 256, U.S. 368, 376, 41 S.Ct. 510, 513, 65 L.Ed. 994 (1921). The defendant in this action attempts to create a substance/procedure dichotomy by contending that since the restriction in this instance is part of the proposing resolution it is proper for reconsideration where if the time period were part of the amendment itself it would not be. The argument follows that a change of a substantive aspect of an amendment is clearly improper once it has been submitted to the states, but a change in the proposing resolution, on the other hand, does not change the essential nature of the amendment and thus is a matter of detail which Congress can change at will. The Supreme Court in Dillon v. Gloss, supra, had an opportunity to address this substance/procedure dichotomy when the eighteenth amendment was challenged on the grounds that the seven-year ratification period called for in Section 3 of that amendment was unconstitutional. While the Dillon court indicated that "[a]n examination of article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments", Id. at 373, 41 S.Ct. at 512, the court did not recognize the setting of the time limitation as being a function of Congress' power to propose amendments but instead indicated that [w]hether a definite period for ratification should be fixed Id. at 376, 41 S.Ct. at 513 (emphasis added). The court did not recognize a substance/procedure dichotomy and thus any authority to limit the time period for consideration must flow from the Congress' power to set the mode of ratification. Accordingly, the Court's attention is drawn to a consideration of Congress' power to set and change the time period for ratification under its power to set the mode of ratification. The United States Supreme Court in United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) recognized that Congress has absolute discretion within its power to propose the mode of ratification to establish which of the two local entities will act as the spokesman for the people. The Supreme Court in the Dillon |