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Articles of Confederation, art. XIII, Documents of American History 115 (5th ed. Commanger 1949). (emphasis added)

The requirement of a perfect consensus of the states effectively precluded change thus protecting the autonomy of the states but it had the devastating effect of undermining the ability of the government under the Articles of Confederation to respond to political and economic crises.31 As history bears out any attempt under the Articles of Confederation to strengthen the national government was defeated by some individual or coalition of states. This inability to respond adequately to crises under the Articles of Confederation was one of the main concerns that eventually led to the Constitutional Convention of 1787.32

The framers' experience with the Articles of Confederation underscored the need for an amending process in the new constitution that would allow the government and the political system to respond effectively to a changing political, social and economic environment. The framers attempted to construct a written constitution that could undergo change when necessary, and, by implication, that could change in a manner that would effectively respond to specific problems. While on the one hand, they sought an amendatory process that would promote necessary and effective constitutional change, the framers also firmly maintained their view that the people, as the original source of all legitimate powers, must consent to any change in the original document. This reference to a popular consensus is viewed as an important response to the particular fear of abuse of power by the national government. For example, Alexander Hamilton wrote in Federalist Paper #22, "The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority." (emphasis in original)

Thus it was with a focus on promoting these two essential values—(1) flexibility to respond to pressures; and (2) the importance that the change proposed be supported by a consensus of the people—that the founding fathers sought to balance the amending power between the national and local representatives. Keeping this purpose in mind the Court turns to a consideration of the allocation of amending authority.

When the Constitutional Convention assembled on May 14, 1787, and during the next several weeks, plans to improve the constitutional basis for government were [1130) presented by Charles Pinckney (May 29), Edmund Randolf (May 29), and Alexander Hamilton (June 18).33 The Virginia Plan as presented by Edmund Randolf consisted of fifteen resolutions. Resolution XIII provided for amendments as follows: "Resolved, that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem neccessary; and that the assent of the National Legislature ought not to be required thereto." 34 While some initial support was found for this proposal, two essential charges were brought against it: first, doubt was expressed as to the propriety of an amendment clause itself; second, and probably a more poignant challenge was made to the proposition that the national legislature was to be excluded from the amendment process. As for the first challenge, the amendment clause was adequately defended on the grounds that the new and difficult experiment entered into by the states would require periodic revision as was found under the Articles of Confederation.35 An amendment provision would be needed to lend stability to the government and provide a reliance on orderly change rather than to trust in chance or violence. 36 The second challenge to the proposal regarding the participation of the national legislature in the amendment process appears to have stemmed from a fundamental apprehension of increasing federal power. In essence, the opponents to congressional participation in an act of such fundamental import as the reallocation of the basic distribution of power through constitutional amendment believed that giving Congress a substantial role would be “exceptional and dangerous" because in any action that would curb or affect on the national government's authority, the Congress would abuse its power and refuse to assent to the change.3

See Federalist Paper #22 (Hamilton). sa For example, James Madison wrote:

The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement

which gives to the new system the aspect of an entire transformation of the old. Federalist Paper #40.

" The Virginia (Randolf) and New Jersey (Pickney) Plans, together with Hamilton's Plan, are available in Document of American History 134 8 (5th ed. Commanger 1949); Farrand, The Framing of the Constitution of the United States, 87 9, 225 32 (1913); Drafting the Federal Constitution, 46 90 (Prescott ed. 1941).

An alternative plan proposed by charles Pinckney visualized a more expanded role for Congress. In his “Plan of a Federal Constitution", article XVI read:

If two-thirds of the Legislatures of the States apply for the same, the Legislature of the United States shall call a convention for the purpose of amending the Constitution; or, should Congress, with the consent of two-thirds of each House, propose to the States amendments to the same, the agreement of two-thirds of the Legislatures of the States shall be sufficient to make the said amendments parts of

the Constitution. 38 Alexander Hamilton supported the move to give Congress a significant part in the amendment process. He argued that

[t]he State Legislatures will not apply for alterations; but
with a view to increase their own powers. The National

37

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34 Madison, Journal of the Federal Constitution, 63 (Scott ed. 1898).

35 When the proposition was taken up for discussion on June 5, Madison recorded that "Mr. Gerry favored it,” since "the novelty and difficulty of the experiment," to Gerry's mind, re quired “periodic revisions," the prospect of which would also give intermediate stabilty to the government,” for nothing had yet happened in the States where this provision existed to prove its impropriety.” Madison, supra, note 34 at 110.

36 Madison reports that Mason defended the proposal believing the plan adopted by the Convention would "certainly be defective, as the Confederation has been found on trial to be." Therefore he thought the amendments would be necessary and it would be better to provide for them in an easy, regular and constitutional way, than to trust to chance and violence. It would be improper to require the consent of the National legislature, because they may abuse their power, and refuse their assent on that very account." Madison, supra, note 34 at 149.

37 Madison, supra, note 34 at 72. 38 Elliot, Debates on the Adoption of the Federal Constitution 2d ed., 127 28 (1937) facsimile of 1836 ed).

Legislature will be the first to perceive, and will be most
sensible to, the necessity of (1131) amendments; and ought
also to be empowered, whenever two-thirds of each branch
shall concur, to call a Convention. There could be no
danger in giving this power, as the people would finally

decide in the case. 39 Since it was felt that neither the states nor the Congress would act other than to promote its own interest or what it perceived to be the present need, the final draft of article V struck the middle ground of granting to each the power to propose amendments to the Constitution. As Madison pointed out in defense of the presently constituted article V.

That useful alterations will be suggested by experience could not be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficult, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the

experience on one side or on the other. Federalist Papers #43. The workings of the balanced approach to proposing amendments is probably best explained by Alexander Hamilton.

In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part, I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicabe to the organisation (sic) of the government, not to the mass of its powers; and on this account alone I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing thirteen States at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion, constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt that the observation is futile. It is this, that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged "on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amend

39 Madison, supra, note 34 at 692 3.

.

F. Mandatory Injunction

[29,30] To begin with, several observations are appropriate. First, the relief the plaintiffs seek is a mandatory injunction.67 Relief in the form of mandamus, it is conceded, is not appropriate in this action. Second, it is well settled that the injunction remedy is a power given the courts under their equitable jurisdiction. Thus the courts' granting or denying of an injunction in a particular case is governed by those fundamental and established principles by which courts of equity are guided and influenced in their judicial action and in administration of relief. Singleton v. Anson County Board of Education, 283 F.Supp. 895 (W.D.N.C. 1968). It is also clear that a mandatory injunction is viewed as an exceptional remedy and thus not regarded with judicial favor. Black v. Jackson, 177 U.S. 349, 20 S.Ct. 648, 44 L.Ed. 801 (1900); Singleton v. Anson County Board of Education, supra. If the Court finds that its application is called for, it should be used with caution and only in cases of great necessity. Id.

[31] From the rulings that this Court has made on the questions of the validity of Idaho's rescission and the constitutionality of the extension, it appears that these declarations alone are enough to settle all disputes between the parties. Since the Court has found the rescission of Idaho's prior ratification to be valid and the congressional act of extension unconstitutional, 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. Therefore, the Court will deny the plaintiffs' request for this extraordinary relief.

In summary, the Idaho plaintiffs have standing to bring this action. The matter is ripe for determination and the Court has jurisdiction and properly should determine the issues presented.

The clear purpose of article V of the United States Constitution is to provide that an amendment properly proposed by Congress should become effective when three-fourths of the states, at the same time and within a contemporaneous period, approve the amendment by ratification through their state legislatures.

To allow an amendment to become effective at any time without the contemporaneous approval of three-fourths of the states would be a clear violation of article V of the Constitution. It follows, therefore, that a rescission of a prior ratification must be recog. nized if it occurs prior to unrescinded ratification by three-fourths of the states. Congress has no power to determine the validity or invalidity of a properly certified ratification or rescission.

Congress, when acting as an amending body under article V, may, by two-thirds vote of both Houses, propose an amendment and the mode of ratification. Congress has no power to propose either an amendment or a mode of ratification except by a twothirds vote of both Houses.

(1155) As part of the mode of ratification, Congress may by a two-thirds vote of both Houses set a reasonable time limit for the states to act in order for the ratification to be effective. When this

67 See plaintiffs' complaint, pp. 42, 47.

time is set, it is binding on Congress and the states and it cannot be changed by Congress thereafter.

Accordingly, the Court declares that Idaho's rescission of its ratification of the twenty-seventh amendment effectively nullified its prior ratification and Idaho may not be counted as a ratifying state. The same is true for any other state which has properly certified its action of rescission to the Administrator of the General Services.

The Court further declares that the majority action of Congress in attempting to extend the period for ratification of the twentyseventh amendment is void and of no effect.

In view of the Court's declarations, it appears that the injunctive relief sought by plaintiffs is unnecessary and the same is denied.

ORDER

This matter having come on before the Court and the Court having heard the arguments of counsel and the matter having been submitted on the briefs, and the Court being fully advised in the premises and having filed its memorandum decision herein;

NOW, THEREFORE, IT IS ORDERED that the defendant's and defendant-intervenors' motion to dismiss or in the alternative for summary judgment be, and the same is hereby, DENIED.

IT IS FURTHER ORDERED, and the Court finds, that the plaintiffs' request for declaratory judgment should be GRANTED, and the Court declares that a state has the power and right to rescind a prior ratification of a proposed constitutional amendment at any time prior to the unrescinded ratification by three-fourths of the states of the United States properly certified to the General Services Administration; and declares that the ratification by Idaho of the twenty-seventh amendment was properly rescinded and such prior ratification is void, as is the ratification of any other state that has properly rescinded its ratification. The Court further declares that Congress' attempted extension of the time for the ratification of the twenty-seventh amendment was null and void.

IT IS FURTHER ORDERED that in light of the Court's declarations, it finds it unnecessary to grant the plaintiffs' requested injunctive relief and therefore will deny the same.

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