(R and Coleman cases found that as a "subsidiary matter of detail" to this congressional prerogative, Congress must also determine whether or not the local expressions of consent are "sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period. . . ." Dillon 256 U.S. at 375, 41 S.Ct. at 512. In making its determination that the requisite consensus has been reached in a sufficiently contemporaneous period, the Supreme Court in Coleman, supra, indicated that if no time restriction is set initially, Congress retains its authority [1152] to decide that issue when the requisite number of states have acted. Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the condsideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts. Id. 307 U.S. at 454, 59 S.Ct. at 982. The court in Dillon further clarified the scope of Congress' power by indicating that while Congress is not compelled to make a determination of a reasonable time period in advance of the actions of the requisite number of states, it is not precluded from doing so. The Dillon court held that Congress may fix a reasonable time in advance "so that all may know what it is and speculation . . . be avoided." Id. 256 U.S. at 376, 41 S.Ct. at 513. It should be noted that the Dillon court did not intimate that the setting of a definite time period was a projection or preliminary assessment of a reasonable time period which would be reevaluated as time passed. Rather, the Court indicated that the exercise of Congress' power to set a time period for ratification is one which is intended to infuse certainty into an area which is inherently vague. Thus the inference that can be drawn from Dillon and Coleman is that within Congress' role of determining a reasonably contemporaneous consensus, or in other words, determining whether the socio/political, economic forces giving rise to the amendment remain alive and unchanged during the period in which the states act in giving their assent to the proposal, Congress may exercise its function in one of two ways: first, it can leave the question of a reasonable time open until the requisite number of states have acted and thus continually monitor the viability of the amendment; second, where it appears to Congress that the socio/ political, economic factors giving rise to the amendment are such that they are unlikely to change for an indefinite period of time, and rather than have the proposed amendment pending perpetually, Congress can set an arbitrary yet reasonable time period in order to establish a termination point for consideration and thus promote prompt action on the amendment by the states.66 [26] It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon-"so all may know and speculation . . . be avoided"-the congressional determination of a reasonable period once made and proposed to the states cannot be altered. If Congress determines that a particular amendment required ongoing assessment as to its viability or monitoring of the time period, it can do so, not by defeating the certainty implied by the Dillon case, but by not setting a time period at the outset and reserving the question until threefourths of the states have acted. The Court's conclusion that Congress cannot change the ratification period once it is set also finds support from the form in which it is presented to the states. While the setting of a time period for ratification has been described as a, "subsidiary matter of detail," pursuant to Congress' power to propose the mode of ratification, if the Congress chooses to fix a time period by making it part of its proposal to the states, that determination of a time period becomes and [1153] integral part of the proposed mode of ratification. Once the proposal has been formulated and sent to the states, the time period could not be changed any more than the entity designated to ratify could be changed from the state legislature to a state convention or vice versa. Once the proposal is made, Congress is not at liberty to change it. [27, 28] In any event, while the general power of Congress to change its prior proposal may be argued, it is more than clear that in this instance Congress' promulgation of the extension resolution was in violation of the constitutional requirement that Congress act by two-thirds of both Houses when exercising its article V powers. Since Congress can act only within the authority given it by article V, and in none other, when proposing amendments or the mode of ratification, arguments relating to acceptable parlia mentary order or procedure have little bearing in determining what voting requirement is necessary for Congress to alter a proposed time limitation on ratification. This is because such an argument presumes Congress is functioning in a legislative capacity when exercising its powers under article V. To determine in what manner Congress must act in utilizing its authority under article V, reference must first be made to the Constitution itself. If it is silent, then the courts can leave Congress to decide its own procedural requirements. See Dyer v. Blair, 390 F.Supp. (N.D.Ill.1975). Article V grants Congress only one power which can be exercised with regard to two separate considerations. Congress has the power to "propose." It can "propose" the text of the amendment and it can "propose" the mode of ratification. When acting in its function of proposing the amendment itself, article V has given the term "Congress" a particular definition. Article V states, "The Congress, whenever two thirds of both Houses shall 1291 66 It appears from the legislative history of the proposed twenty-seventh amendment that the seven-year time period was well considered and found necessary to prevent the amendment from pending for an inordinate period of time. See S.Rep.No.92 689, 92d Cong. 2d Sess. 1972; 118 Cong Rec. 9552 (1972). Legislature will be the first to perceive, and will be most 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 amend39 Madison, supra, note 34 at 692 3. ments, which shall be valid, to all intents and purposes, as Federalist Paper #85. Thus, in promoting the first value of the amendment clause, i.e., providing a means by which the Constitution can remain_responsive to change, authority was goven to both the states and Congress to propose necessary amendments. The national government was given the power to propose [1132] amendments because as Hamilton wrote the state legislatures can "erect barriers" against its encroachment. Since the power to propose is equally divided, the power to create barriers against the national government must flow from the distribution of authority in determining whether or not proper consent for the change is derived from the people. While the drafters of the Constitution found it appropriate to grant the same power to propose amendments to both the local and national governments, a somewhat different distribution of authority was applied for determining whether there is sufficient consensus or support for the change. Like the power to propose amendments, both the states and Congress were given a part in determining the extent of consent but unlike the power to propose amendments, the authority given each is distinctly different. Article V gives Congress complete and unrestricted control of designating the "Mode of Ratification", the power to propose which of the two local entities, the state legislature or state convention, will act in ratifying the amendment.40 The essential purpose behind this grant of authority is for Congress to determine which of these entities will best reflect the local sentiment regarding the proposed amendment.41 The states, on the other hand, acting through the body chosen by Congress, have the responsibility of ascertaining the local sentiment or actual popular consent regarding the amend 40 The Supreme Court confirmed this fact in United States v. Sprague, 282 U.S. 716, 732, 51 S.Ct. 220, 222, 75 L.Ed. 640 (1931). 41 To illustrate why this determination is essential consideration should be given to the relationship of who proposes the amendment and who ratifies. If the states, through their legisla tures, apply for a convention to propose amendments to the Constitution, and by that method succeed in proposing an amendment, Congress then has the clear option of deciding whether to submit the matter for ratification to the state legislatures, who in essence proposed the measure, or an alternative local group which might better reflect the local sentiment. If Congress proposes the amendment, there does not appear to be any particular reason why one entity should be preferred above another. But then again, the legislative history of the twenty-first amendment should be given careful scrutiny. ment. It is clear that in formulating article V the framers found that the states could most accurately reflect the existence vel non of consent. [16] In considering the scope of the power granted to Congress to set the mode of ratification the Court has found that certain natural inferences must be read into that delegation of authority. In Dillon v. Gloss, 265 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994 (1921), a suit challenging Congress' power to restrict the period in which an amendment can be considered by the states for ratification, the court observed that [w]e do not find anything in the Article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the States may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the States, there is a fair implication that it must be sufficiently contemporanous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress [1133] to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article V is no exception to the rule. Whether a definite period for ratification shall be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. Id. at 374-6, 41 S.Ct. at 512-13. As a subsidiary matter of detail, Congress has the power, pursuant to its authority to designate the mode of ratification, to set a reasonable time period in which ratification may take place. It is significant that the Dillon court in discussing the Congress' power to set a particular time period for ratification spoke of the need for the amendment process being completed within a reasonably contemporaneous time period so as to indicate the existence of the proper crescendo of consent necessary for the amendment to legitimately become part of the Constitution. Thus, as part of its power |