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 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 23 to this Constitution, which... shall be valid to all Intents and Purposes, as part of this Constitution, 24 when ratified 25 by the Legislatures 26 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 27. U.S. Const. Art. V (emphasis and footnotes 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.28 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. For this it is necessary to turn to the foundations of article V and an understanding of the purposes and operation of this critically important section of the Constitution. Professor Lester B. Orfield in his seminal work on the constitutional amendment clause, The Amending of the Federal Constitution (1942), offers an insightful, analytical beginning point in understanding the function of article V and the interrelationship of the entities involved in that process by considering the philosophical contributions made by article V.29 Professor Orfield points out 23 The National Prohibition Cases, 253 U.S. 350, 40 S.Ct. 486, 64 L.Ed. 946 (1920) considered this portion of article V. This case established the principle that "two-thirds of both Houses" could be two-thirds of a congressional quorum rather than the full membership of each House. Furthermore, this case determined that the mere act of Congress proposing an amendment is sufficient to indicate that it is "deem[ed]. necessary." Id. at 386. Finally, the court decided that the term "amendment" includes additions to the Constitution rather than mere changes in matters already present in the Constitution. Id. 24 In Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994 (1921) the Supreme Court considered this language and determined that an amendment becomes part of the Constitution as of the date of the ratification of the last state necessary for three-fourths, instead of the time of its promulgation by the Secretary of State of the Administrator of General Services. 25 Dyer v. Blair, 390 F.Supp. 1287 (N.D.III.E.D., 1974). A three-judge district court interpreted the word "ratified" and determined that "article V delegates to state legislatures-or the state convention depending on the mode of ratification selected by Congress-the power to determine their own voting requirements." Id. at 1308. 26 In Hawke v. Smith, No. 1, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920), the court held that a provision in a state constitution allowing legislation to be approved by referendum was inapplicable to ratification of a constitutional amendment because ratification is not an ordinary legislative act. In reaching this decision the court based its decision on its interpretation of the word "legislature" as found in article V. Id. at 228 9, 40 S.Ct. at 497 98. 27 In United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) the court considered this phrase in deciding that Congress had complete discretion in determining which entity could act to ratify a proposed amendment. Id. at 730, 51 S.Ct. at 221. 28 See footnote 47 and accompanying text. 29 See Chapter V pp. 127, 168. that in the realm of political-philosophy and legal institutions, the idea of a written constitution developed at a late stage of Western Civilization and at [1127] the forefront of this development was the American experience. The doctrine of popular sovereignty had a strong appeal to the inhabitants of the colonies, and because the people were considered sovereign it followed that the people could create a constitution to dictate the legal structure of their government. Furthermore, as part of establishing a constitution, it also follows that once created, the constitution could also provide a mechanism for changing or amending the document. This idea of amending an organic instrument, Professor Orfield points out, is markedly and uniquely American and has a dramatic impact on the philosophical concept of legal sovereignty. A legal sovereign, as opposed to the popular sovereign (or those who are the source of public opinion, etc.) by definition is a person or body which is said to have unlimited lawmaking power which is not subject to any person or body legally superior to him; or in other words, the legal sovereign is defined as having unlimited lawmaking or legislative power. By way of illustration, in the English system the Parliament is the legal sovereign in that whatever it legislates is the supreme law of the land. A dictatorship has the despot as its legal sovereign for the same reason. In the American experience, however, even though the people have been referred to as the source of all political power, the creation of a written constitution shifted the ultimate lawmaking powers from the people, as a whole, and spread it among the various branches of government. It is this shift of power from the people to the constitutional structure that creates the question of where the legal sovereignty resides. In analyzing each of the possible alternatives, Professor Orfield in turn rejected the proposition that legal sovereignty rested in the states, either individually or collectively; the federal government; or the states and the federal government jointly, or finally the judiciary. Professor Orfield's resolution of the question of the location of legal sovereignty was that it ultimately resides in the amending body ias constituted and governed by article V. Professor Orfield wrote: Finally it must be seen that the status of the amending body has an important bearing on the controversy over the nature and extent of the powers of the federal government and the states, and on the general doctrine of sovereignty. Sovereignty rests in neither the federal government nor in the states, but, if it may be said to reside anywhere, in the amending body. The amending capacity demonstrates neither the supremacy of the states nor of the federal government. At one time it may operate in favor of the states, and at another in favor of the federal government. That the rights of neither will be impaired is guaranteed by their joint action in the amending process. Both are but agents of the composite states. Id. at 164-5. Regarding the amending body as the repository of legal sovereignty has an interesting impact on the perception of the amendment process and the participants therein. Initially it should be noted that the two participants listed in article V having a part in the amendment process-Congress and the state legislature or state convention-comprise an independent body which solely has the power to alter the fundamental laws of the land. In short, a body which transcends both federal and state authority. When acting as part of the amending body, both participants act pursuant to the power and authority granted by article V and their traditionally defined roles have no bearing on their authority to either limit or expand them. See Hawke v. Smith, No. 1, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920) (“ratification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word. . . . The power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution." Id. at 229-30, 40 S.Ct. at 497-98); Hollingsworth v. Virginia, 3 U.S. 3 Dall 378, 1 L.Ed. 644 (1798). (In proposing or acting on a proposed constitutional amendment Congress is not acting pursuant to its "ordinary" legislative powers found in article I but acts according to those powers granted [1128] under article V. Id. at 380 n.(a)). Within article V each of the participants are assigned certain powers which appear to be carefully balanced and approximately equally distributed. For example, Professor Orfield, in commenting upon the proposition that the states are really the sovereign in that amendments are ultimately ratified by them, writes that [a]n amendment is never brought about without prior initiation by Congress. Even when a constitutional convention is applied for by the state legislatures, the call must go forth from Congress. Congress, moreover, has the power to select the mode of ratification. Looked at from one angle, Congress has a dual capacity in proposing amendments. It actually initiates the amendment, while, at the same time, its vote in favor of it is in way a vote of ratification, inasmuch as, without it, the amendment cannot even go before the states. It is in Congress that amendments have been buried. The initiatory powers of the state legislatures have never as yet been brought to a successful fruition. It thus appears that the powers of the federal government with reference to amendments are fully equal to those of the states. A true sovereign must therefore embrace both governments. Id. at 154. Thus, each participant works within his scope of authority in order to bring about constitutional change. The authority of each appears to be delicately balanced to avoid any unseemly encroachment or potential for abuse. This balance between the participants works from the premise that both are the agents of the people, the sole legitimate source of constitutional change, representing them in markedly different fashions. James Madison made reference to this balance in his writing in the Federalist Papers. He wrote: If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside Federalist Paper #39 (Madison). The careful balance between the participants in the amendment process is critical to understand in order to assess the full scope of authority each has been assigned. For such an understanding it is necessary to probe the deliberations of the founding fathers in their drafting of article V, as well as their experiences under local state charters, constitutions, and, the Constitution's predecessor, the Articles of Confederation. It appears that the founding fathers were well schooled in the concept of the amendability of governing laws. Most, if not all, of the original states had constitutions or charters which provided for orderly change, by amendment, pursuant to specific procedures. 30 When the Articles of Confederation were drafted provision was made for amendments of error, but concern was expressed at the same time that the ability to [1129] amend would augment the power of the national government to the detriment of the autonomy of the states. See, Federalist Papers #21 (Hamilton). The Articles of Confederation reflected this fear of a strong national government by emphasizing both the autonomy of the states and the delegated limited authority to the national government. The amendment provision found in the Articles of Confederation was written to ensure the states' continued control over the national government. This was done by virtually precluding any substantive change in the basic distribution of power between the national government and the states. The amendment provision read: the Articles of this Confederation shall be inviolably ob- 30 "The first written charters or constitutions providing for their amendment appear to have been the charters of the Colony of Pennsylvania, which was the only colony to make such provision. Eight of the state constitutions during the period between the declaration of independence and the meeting of the Constitutional Convention of 1787 contained amendment clauses." Orfield, The Amending of the Federal Constitution, 1 (footnotes omitted). |