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ment, we must interpret the Constitution

we must first determine what power the Constitution confers ... before we can determine to what extent, if any, the exercise of that power is subject to judicial review.

In other words, whether there is a "textually demonstrable constitutional commitment of the issue to a co-ordinate political department” of government and what is the scope

of such commitment are questions we must resolve . . Powell v. McCormack, supra 395 U.S. at 519, 521, 89 S.Ct. at 1963, 1964.

Therefore, in order to determine the existence and extent of any "textual commitment” to the various actors under article V it is necessary to turn to the Constitution itself in order to determine the allotment of powers among the participants and the degree to which each is subject to judicial review or interpretation. While it is noted that the text of the Constitution does not expressly deal with either of the substantive questions presented nor does it direct either the Congress or the judiciary to determine how article V should be interpreted, this fact “is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed." Dillon v. Gloss, 256 U.S. 368, 373, 41 S.Ct. 510, 512, 65 L.Ed. 994 (1921). In attempting to determine what is implied by article V, it appears appropriate for the Court to try first to ascertain why article V was structured as it is and what the intent of the framers was in providing for this section of the Constitution. In order to do so the philosophical and historical underpinnings of article V must be scrutinized. In addition, since the courts have not been reluctant in interpreting article V, the authoritative case law must be reviewed.

[15] Before embarking on a review of the allocation of powers under article V to determine the existence of a constitutional commitment of the pending issues to a particular party, one of the defendant's contentions must be considered. 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 amer.datory proce dure. 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 Supreme 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

[1126) 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 23 to this Constitution, ... which

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 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.

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 “deemsed) . . 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.

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. Vir. ginia, 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 a 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
in the majority of the people of the Union; and this au-
thority would be competent at all times, like that of the
majority of every national society, to alter, or abolish its
established government. Were it wholly federal, on the
other hand, the concurrnce of each State in the Union
would be essential to every alteration that would be bind-
ing on all. The mode provided by the plan of the conven-
tion is not founded on either of these principles. In requir-
ing more than a majority, and particularly in computing
the proportion by States, not by citizens, it departs from
the national and advances towards the federal character;
in rendering the concurrence of less than the whole
number of States sufficient, it loses again the federal and

partakes of the national character. 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-
served by every State, and the Union shall be perpetual;
nor shall any alteration at any time hereafter be made in
any of them, unless such alteration be agreed to in a Con-
gress of the United States, and be afterwards confirmed by
the legislatures of every State.

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).

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