Congress as precedent. . . ."48 This argument is even more persuasive when one considers that presumably Congress' own determination would have no binding effect on any subsequent Congress.49 [20] In the application of this prudential consideration calling for deference to a decision made by a political branch, one unequivocal factor necessary before the Court can take cognizance of this limitation on its jurisdiction is that there must be a clear, definitive decision in existence that the courts can defer to. In Coleman v. Miller, supra, apparently one of the first times this prudential consideration was given application, the court found that the question of the effectiveness of a ratification after a prior rejection was a political question based on the fact that "the political departments of the Government dealt with the effect of both previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification." Id. 307 U.S. 449, 59 S.Ct. at 980. In reaching this conclusion, the court drew upon the history of the ratification of the thirteenth, fourteenth, and fifteenth amendments. Coleman, supra, is cited as precedent in this case, particularly with regard to the question of the validity of a rescission, for principally two reasons: First, while any reference to Coleman as to the effectiveness of a rescission is clearly dicta, the deference the court chose to give to the congressional resolution of the conflict over the adoption of the Civil War Amendments could also be applicable here since those amendments were confronted not only with questions of ratifications after prior rejections, but also of rescissions after prior ratifications. Second, there are some analytical similarities between a rejection and a rescission which would indicate that they should be treated the same. The application of the Coleman decision, however, to the issues advanced in this case have been resisted on a number of different grounds. First, as mentioned earlier, statements regarding the effectiveness of a rescission in Coleman are dicta and have no precedential value. Second, the whole of the court's analysis of the question of rejection is also dicta and thus should not be followed by the Court. Finally, if the Court is to look to congressional handling of the question of the effect of a rescission, a brief review of the full history of congressional decision making regarding this issue makes it clear that Congress has consistently refused to render a final decision. Thus it would be impossible for this Court to find a clear decision by the political branch on the question of the effect of a rescission to which it would be appropriate to defer. Turning attention to the first contention, there is little dispute that the Coleman court was not presented with the question [1142] as to the effect of a rescission. Since the question was not before the court, any discussion regarding that issue would clearly be dicta and have only the force of its underlying analysis to persuade subsequent courts to follow. As for the second contention that the court's holding that a "political question" is presented when there is an inquiry into the effectiveness of a ratification after a prior re 48 Orfield, supra, note 30 at 20. 49 "Based] on the most familiar and fundamental principles, so obvious as rarely to be stated no Congress has the power to bind the consciences of its successors, with respect to grave ques tions of constitutional law. . . ." Black, Amending the Constitution, 82 Yale L.J. 189, 191 92 (1972). jection is dicta, this allegation is derived from a strict reading of the Coleman decision. The Coleman court held that Congress has the power to declare a proposed amendment is no longer viable by refusing recognition of a state's ratification where action has not been taken in a reasonably contemporaneous time period. Since in Coleman there was considerable doubt whether the Child Labor Amendment was still viable after thirteen years, as is evidenced by the fact that two dissenting justices insisted that the amendment had lapsed,50 and a determination by Congress that the time period had indeed lapsed would have suspended the need for a determination of the effect of a prior rejection on a state's subsequent ratification by rendering those questions moot. The court's ruling on the question of ratification after a rejection would not have had to be made in light of how Congress would have decided the question of a reasonable time limitation. Finally, the last and most substantial challenge to the Coleman decision that no congressional decision regarding the issue in this case has been worthy of deference-bears careful scrutiny. From a review of the history of the proceedings surrounding the Civil War Amendments which served as the basis for the holding in Coleman and the subsequent actions of Congress regarding the amendment process, the Court is persuaded that, in fact, no decision has been made by a political branch which would necessitate the Court's deferral of its constitutional function of interpreting the Constitution. The Court reaches this conclusion after considering the following review of the clear historical precedents found in the amendment process. The fourteenth amendment was proposed and sent to the states on July 21, 1866. By 1868, however, most of the northern states had ratified the proposal but all the ex-Confederate states, except Tennessee, had rejected the proposal. On January 11, 1868, before any state had attempted to change its mind either by ratifying after having rejected, or by retracting its prior consent, Senator Sumner of Massachusetts introduced a joint resolution which recited that 22 states had ratified the fourteenth amendment and declared that it was for all intents and purposes a part of the Constitution. Cong. Globe, 40th Cong. 2d Sess. 453 (1868). Twenty-two would have been three-fourth of those loyal states left in the Union at the end of the Civil War and those who proposed the amendment. A similar resolution was offered in the House of Representatives by Representative Bingham on January 13, 1868. Id. at 475. Two days later, the Ohio legislature voted to revoke its ratification which previously had been certified to the Secretary of State. On January 31, Sumner expressed the opinion that the attempted withdrawal of Ohio's ratification was ineffective because the amendment was already a part of the Constitution. He declared: This amendment was originally proposed by a vote of two thirds of Congress, composed of the representatives of the loyal States. It has now been ratified by the legislatures of three fourths of the loyal States, being the same * See Mr. Justice Butler and Mr. Justice McReynolds' dissent Coleman v. Miller, 307 U.S. 433, 470, 59 S.Ct. 972, 989, 83 L.Ed. 1385 (1939). States which originally proposed it, through their repre- Id. at 877 (emphasis added). The resolutions of ratification and rescission sent by Ohio were referred to the Senate [1143] committee on the judiciary along with Senator Sumner's motion. Id. at 453, 878. No further action was taken on the matters until July 9, 1868. During the interim, howev er, the Congress, on June 25, 1868, passed an act which conditioned representation in Congress of the recalcitrant southern states on the reorganization of their state governments and the ratification of the fourteenth amendment. Id. at 3857. Most of the southern states then took action to ratify the amendment including Louisiana, North Carolina, and South Carolina who had specifically rejected the amendment earlier. On July 9, 1868, the House called upon the Secretary of State to compile "a list of the States of the Union whose legislatures have ratified the fourteenth article of the amendment." Id. at 3857. By this time New Jersey had acted in voting to revoke its prior ratification. In a certificate of the Secre tary of State issued on July 20, 1868, listing those states that had ratified, Louisiana, North Carolina, South Carolina, Ohio and New Jersey were all included. The Secretary of State apparently had no doubts as to the ability of the legislatures of Louisiana, North Carolina, and South Carolina to reverse their earlier rejection, but as to the Ohio and New Jersey resolutions withdrawing consent, the proclamation stated: [i]t is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and therefore ineffectual . . . . [I]f the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid Amendment are to be deemed as remaining in full force and effect, notwithstanding the subsequent resolutions of the legislatures of those States, which purport to withdraw the consent of said states from such ratification, then the aforesaid Amendment has been ratified in the manner hereinbefore mentioned, and so has become valid. 15 Stat. 706 07 (1868). On July 21, 1868, Georgia, under its newly-constituted government, ratified the fourteenth amendment.51 That same day without debate, both houses passed a concurrent resolution declaring the Fourteenth Amendment to be part of the Constitution and that should be promulgated as such. Cong. Globe, 40th Cong., 2d Sess. 4296 (1868). In its resolution of promulgation compiled on July 28, 51 The Congress was well aware of Georgia's ratification before action was taken on Secretary Sewards' certification. The contents of Georgia's ratification were received by the House by tele gram and read on the floor. 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 application 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, 20 n. 70 (1951). 53 The resolution of promulgation read much the same as the resolution adopted by the 40th Congress to promulgate the fourteenth amendment, but Congress refused to act on it 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.. Is Sess. (1967); S. 623, 91st Cong. Ist Sess. (1969); S. 215, 92nd Cong., 1st Sess. (1971); S. 1271, 93rt Cong., 1st Sess. (1973), most would confirm the state's right to rescind but none have receiver enough support to be enacted as law. |