FEDERAL CONSTITUTIONAL CONVENTION 37 about, the present restrictive clause would not bar such a change in the Constitution once consented to by the State or States concerned. Once consented to, the prohibition would no longer exist. CITATIONS 1 National Prohibition Cases, 253 U. S. 350 (1920), concerning the validity of the Eighteenth Amendment to the United States Constitution. See Willoughby, The Constitutional Law of the United States (2d ed.; 1929), I, 958. Machen, is the fifteenth Article Void? (1910), 23 Harvard Law Review 100, Neal Delaware, 103 U. 8. 370 (1880). Marbury, The limitations Upon the Amending Power (Dec. 1919), 33 Harvard Law Review, p. 223. See also, for contention that state autonomy and reserved powers may not be altered, Curtis, Constitu tional History of the United States (1897), II, 100; McCulloch v. Maryland, 4 Wheat. 316, 403 (1819); Collector v. Day, 11 Wall. 113, 124 (1870); Gordon v. United States, 117 U. 8. 607, 705 (1884). Fifteenth Amendment, by Neal v. Delaware, 103 U. 8.370 (1880); Eighteenth Amendment by National Prohibition Cases, 253 U. B. 350 (1920); Nineteenth Amendment by Leser v. Garnett, 258 U. 8. 130 (1922). 1258 U. 8. 130 (1922). Elliott's Debates (2d ed.; 1937), L, 316-317; Madison's Papers 531-582 and 551-552. PART IV TIME LIMITATIONS WITH RESPECT TO STATE APPLICATIONS CHAPTER 11 LAPSE OF TIME AFFECTING APPLICATIONS When two-thirds of the States have applied for a convention, the applications, supposedly, attain binding force. Such action, ordinarily, would preclude discretionary power or decision on the part of Congress, since article V directs that body to convene a convention. As noted in preceding chapters, however, article V provides no legal sanction for its own enforcement, and there seems to be no judicial process for enforcing its provisions. A convention, under article V, after the requisite number of States have made application, does not automatically come into being. It must be called by the Congress. Whether Congress can be made to act has already been discussed. Whether Congress should act and when, assuming it is willing, raises still further problems. Does an application, for example, once made, remain always alive and valid, or can it become legally ineffective because of a lapse of time that may have occurred after its adoption by the State legislature and during its pendency before the Congress? Does an application lapse into a state of invalidity because, possibly, some factor intervened to shorten its life? 1 The amending article is silent on the subject of what force or effect the lapse of time will have on an application. The Supreme Court dealt with an analogous situation concerning the length of pendency of an amendment proposed by the Congress to the States for ratification in the case of Dillon v. Gloss 2 and thought that amendments ought not be left open for all time: We 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. In the Dillon case, Congress proposed to the States for ratification a resolution which resulted in the 18th amendment. In the resolution, Congress fixed a period of 7 years within which three-fourths of the States had to ratify or else the resolution would have been lost. In upholding this action on the part of Congress, the Court announced (1) that Congress could fix a reasonable time within which proposed amendments had to be ratified, and (2) that 7 years was without question a reasonable time. The Court also noted that the proposal of an amendment and its ratification were not unrelated FEDERAL CONSTITUTIONAL CONVENTION 39 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 contemporaneous 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. In passing on this case the Court enunciated the so-called "contemporaneous" test and it would seem logical to apply this same interpretive technique in dealing with State applications for constitutional conventions. Certainly there is nothing in article V which suggests that an application of a State, once made, is to be valid for all time or that the application of one State may be separated from those of other States by many years and still be effective. On the contrary, the implications seem to go the other way. Using the same reasoning which the Court employed in Dillon v. Gloss, quoted above, and employing it by way of analogy, it would appear, first, that State applications and the calling of a convention are not unrelated acts but are succeeding steps in a single endeavor, not to be widely separated in time. Secondly, since it is only when legislatures deem amendments to be necessary that applications for a convention are made to the Congress, a reasonable inference is that such a convention is needed to "presently" dispose of the needs of the people. Thirdly, since an application is made in response to popular demand and is effective when made by the legislatures of two-thirds of the States," "there is a fair implication that it must be sufficiently contemporaneous in that number of States to reflect the will of the people, in all sections at relatively the same period" which applications "scattered through a long series of years would not do."From this the conclusion may be drawn that an application should have force for a reasonable time only. CITATIONS The duty of answering or developing solutions for solving these problems finally devolves on Congress. The States, in anticipation, may influence the Congress and even control its decision to some degree by submitting applications in a form and manner which they believe desirable. See ch. 7, supra. 1256 U. S. 368, 374 (1921). Ibid., pp. 374-875. See also Coleman v. Miller, 307 U. S. 433, noting statement in Gloss v. Dillon that amendment process is a series of related events, succeeding steps in a single endeavor which should be reasonably related in time. CHAPTER 12 POLITICAL QUESTIONS It is well settled that the courts will not decide "political questions." The principal reason is that the duty to determine such questions is to be found in the executive or legislative branches of our Government and not in the judicial. When a case is presented involving a political question the courts will look to the so-called political branches of Government, i. e., the executive and legislative, to learn what position those departments have taken in the matter. The courts then act in conformity with it. The result of such procedure is that the merits of the case are not decided as an independent question by the courts; rather the action of the political department concerned becomes a rule of decision which the courts accept as controlling.2 A reading of the cases indicates that the most important facet in the development of the doctrine, insofar as it is pertinent to this thesis, was the fact that the political departments, in the normal performance of their functions, had better means and facilities available to them to determine the question involved. Most questions of policy are based upon the needs and exigencies of the times in which they arise. They involve an appraisal or evaluation of economic, social, and political issues which can hardly be reduced to exact terms for admission as evidence in a court of law and of which the courts cannot reasonably take judicial notice." As a result, the courts, in developing the "political question" doctrine, have given a finality of action to the decisions of our political departments. Many illustrations are to be found in the field of foreign relations. In Doe v. Braden, for example, the courts refused to inquire into the constitutional powers of the King of Spain with whom the United States had negotiated a treaty. Objection was made that the King, at the time the purchase of the territory of Florida was being considered, could not annul certain grants of land he had made earlier to Spanish citizens within the territory. The court refused to consider the objection, stating that it was for the President and the Senate of the United States to determine whether the King's powers were sufficient in this instance. Whether our Government was right or wrong in interpreting the King's power under Spanish law was not controlling. The conduct of our foreign affairs requires that the State Department have a wide latitude in determining issues in the light of our political needs. To permit others to overrule questions of policy would greatly hamper the conduct of our foreign negotiations. Chief Justice Taney stated the Court's reasoning thusly: * it would be impossible for the executive department of the Government to conduct our foreign relations with any advantage to the country, and fulfill the duties which the Constitution has imposed upon it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the power by the constitution and laws, to make the engagements into which he entered. FEDERAL CONSTITUTIONAL CONVENTION 41 Whether a treaty has been broken has also been held to be a matter which the courts will not determine. In Ware v. Hylton' the United States Supreme Court stated: These are considerations of policy, considerations of extreme magnitude, and certainly, entirely incompetent to the examination and decision of a court of justice. One of the leading cases involving political questions is that of Taylor v. Morton where it was pointed out that the courts had no suitable machinery to determine such questions: These powers have not been confined by the people to the judiciary, which has no suitable means to exercise them; but to the executive and legislative departments of our Governinent. They belong to diplomacy and legislation, not to the administration of existing laws. This view has been expressed in other cases covering many different subjects such as the beginning and ending of wars as declared by Congress and the President, control of aliens," guaranties of a republican form of government under the United States Constitution," recognition of foreign governments, 12 domestic violences.13 These cases all treat political questions as ones which should be properly and finally determined by the legislature or the executive. There is no precise rule which can be cited to describe what is meant by the term "political question." As noted above it has been applied to a variety of issues. John P. Frank states that it is more amenable to description by an itemization of the subjects declared to be political by the courts than by a broad general definition.14 Charles Post says that the term "political questions" is a magical formula which has the practical result of relieving the courts from the necessity of further considering a particular problem. It is a device, according to Post, by which the courts transfer the responsibility for deciding questions to another branch of Government. ments.1 It is evident from a review of the cases that, upon declaring an issue to be political, the courts disclaim all jurisdiction or authority over the question and accept the decision of the political depart16 Some of the reasons for these declarations are apparent. For example, the Constitution places the duty on Congress to detremine the qualifications of its own Members. The courts would not pass upon any issue under this provision because someone else, namely, the Congress, has the clear and unequivocal responsibility to make the particular decision."7 John Frank points out that, in some instances, courts declare issues political because they are reluctant to hand down orders which, due to the lack of proper tools, they are unable to enforce.18 He notes that the judiciary, in many respects, is the weakest division of government, dependent, for its effectiveness upon the acquiescence of other branches of government. Two other categories of political questions--ones directly in point in this dissertation-concern (1) problems which are soluble only by legislative action, and (2) problems where the action involved requires information which a court cannot obtain. For example, in Coleman v. Miller, 19 the Supreme Court was asked to decide how long was a reasonable time for the pendency of a constitutional amendment before the States. In determining that the question was a political one and for the Congress to decide, the Court noted that the issue involved a variety of political, social, and economic conditions |