42

FEDERAL CONSTITUTIONAL CONVENTION

evidence on which could not be appropriately received in a court. Chief Justice Hughes stated: 20

*the question of a reasonable time in many cases would involve, as m this case it does involve, an appraisal of a great variety of revelant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice. Similarly, in Colegrove v. Green 21 the Court would not interfere with the reapportionment of congressional districts within a State upon the ground that the legislature was better equipped to acquire information and set up a sound districting system. So also in Chicago and Southern Airlines v. Waterman Steairship Co.," the Supreme Court declined to review a decision of the Civil Aeronautics Board relating to international air transportation, because the evidence needed to make a proper determination in the case depended upon information on foreign relations unavailable to the Court.

It is probably easier to look to the effects or results which these decisions have on issues rather than try to reconcile the reasons underlying the decisions. The fact is, however, that the Supreme Court has expanded, over the years, the number of subjects which are classified "political questions.' Many of today's political questions might well have been justiciable had the Court so wished to decide them. In general, it may be said the Supreme Court has found it more practical and expedient to leave the decision of certain questions to governmental bodies more appropriately adapted to decide them. And so far as the amending clause, article V, is concerned, at least four members of the Supreme Court have stated that Congress has undivided control over the process:

Undivided control of that process has been given by the article exclusively and completely to Congress. The process itself is "political" in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point."

Argument may be made that where an appropriate agency of government has failed or refused to act, the courts will be unable to determine a particular issue because they will have no express view of the agency to entertain. What such an argument fails to take into account is that inaction or no action can be regarded as a positive position taken by the agency concerned." All the courts need do is determine that the question is one which should be properly decided by a particular agency and leave it with the agency to decide it. Post has aptly outlined the proposition: When the Court declares a question "political" it accepts the decision of the political departments whether the decision be expressed or not expressed. He stated:

when a court declares a question to be a political question, it disclaims all jurisdiction and authority over the question and accepts the decision of the political departments, whether this decision be expressed by act of Congress, official statement or declaration, or treaty, though such decision may well be found in the absence of such expressions.25

The fact that the matter is left in midair, so to speak, would not seem to foreclose the courts from declaring an issue political. In fact the Supreme Court, in Coleman v. Miller, has indicated that such is the case, in stating that failure on the part of Congress to set up a reasonable time limitation on ratification of amendments did not east can Babe of deciding what constitutes

the courts son ble tru"

Willoughby, The Constitutional Law of the Tutted states (1929), III. 1326

Field, The Doctrine of Political Questions in the Federal Courts 1924), S Minnesota Law Renew AN Coleman v. Miller, 307 U. S. 433, 454 (1939).

Ibid., 453-454 (1939).

16 How. 635 (U. S. 1853).

16 How. 635, 657 (U. S. 1853).

3 Dall. 199, 260 (U. S. 179.

2 Curt. 454, 461 (C. C. Mass. 1885) aff'd, 2 Black 41 U. S. 1562).

The Protector, 12 Wall. 700 (U. S. 1871); Hamilton 7. Dillon, 21 Wall. 73 (U. S. 1874,: United States v. 129 Packages, Fed. Case No. 15941 (1862).

Chinese Exclusion Case, 130 U. S. 581 (1889).

Luther v. Borden, 7 How. 1, 42 (U. S. 1849). In this case, the United States Supreme Court observed that "when the Senators and Representatives of a state are admitted into the councils of the Luion, the authority of the government under which they are appointed, as well as its republican character, is recoknized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." See also Pacific Telephone Co. v. Oregon, 223 U. 8. 118 (1912).

12 Rose v. Himley, 4 Cranch 241 (U. s. 1808); United States v. Klintook, & Wheat. 144 (U. 8. 1820). :3 Luther v. Borden, 7 How. 1 (U. S. 1849).

14 Frank, John P., "Political Questions" set out in Supreme Court and Supreme Law, edited by Edmond N. Cahn, Indiana Univ. Press, Bloomington (1954).

15 Post, Charles G., Jr., The Supreme Court and Political Questions (Baltimore: The Johns Hopkins Press, 1936).

Post, p. 124.

17 U. 8. Constitution, Art I, sec. 5.

Coleman v. Miller, 307 U. B., 433, 459 (1939).

24 A notable example is when Congress failed to reapportion Congressional districts after the 1920 census. It was clear, because of attendant publicity, that Congress, by its inaction, intended to do nothing about reapportionment.

25 Post, p. 124.

See also Frank, citing Post, p. 37.

37 307 U. 8. 433, 452-453 (1939).

CHAPTER 13

"REASONABLE TIME" AFFECTING APPLICATIONS

The conclusion reached in chapter 11 that an application remains in force for a reasonable time raises the further question of what constitutes a "reasonable time." Orfield suggests that the maximum life of an application should not continue for more than a generation. Quite possibly a reasonable time may be measured by changes or improvements of the social or economic conditions out of which an amendatory move arises. The purpose underlying each application no doubt should also be taken into consideration.1

The cases of Coleman v. Miller and Wise v. Chandler before the State courts of Kansas and Kentucky presented for judicial determination, among other things, the question of what is a reasonable time under article V. Both cases involved the question of the validity of a State's purported ratification of the proposed child-labor amendment more than 12 years after it was proposed by Congress. The United States Supreme Court, in Dillon v. Glass,' had earlier held that Congress, in proposing an amendment, could fix a reasonable time for ratification and that the 7 years which it had prescribed for the adoption of the 18th amendment was, without question, a reasonable time. The Kansas and Kentucky cases offered an opportunity for a further judicial decision on whether a reasonable time had been exceeded in those instances."

The State courts reached opposite results, the Kansas court holding that despite the lapse of 12 years the proposed amendment still reflected the "felt needs of the day" and was, therefore, still open to ratification; the Kentucky court, on the other hand, holding that a reasonable period during which the State might have acted had expired, and that a resubmission of the proposed amendment by Congress was necessary if further action was to be taken on it.'

However, the Supreme Court, in Coleman v. Miller, 10 decided the question by concluding that it was essentially political and not subject to judicial determination. In so deciding, the Court reasoned that, inasmuch as the Constitution set forth no satisfactory criteria for judicial determination of the question, and since a decision would involve an appraisal of a great variety of political, social, and economic conditions, the question was more appropriately one for congressional than for judicial determination.

The Court distinguished Dillon v. Gloss" on the ground that Congress had set a definite time within which the proposed amendment had to be ratified. It did not follow, as the Court pointed out. that when Congress has not set a time limitation, the courts had to take on the responsibility of deciding what constitutes a reasonable time. 12

When a proposed amendment is based upon the needs, economic or otherwise, of the Nation, it is necessary to consider, in determining

FEDERAL CONSTITUTIONAL CONVENTION

45

what is a reasonable time, the conditions then prevailing throughout the country, and whether they had so far changed since the submission of the proposed amendment as to make the proposal no longer responsive to the conception which inspired it. As the Supreme Court stated (p. 453):

In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of Government. The questions they involve are essentially political and not justiciable. They can be decided by the Congress with the full knowledge and appreciation ascribed to the National Legislature of the political, social, and economic conditions which have prevailed during the period since the submission of the amendment.

It must certainly be conceded that what is a reasonable time in one situation will not necessarily be reasonable in another. To illustrate: A comparatively short time could probably be held reasonable in the case of an amendment necessitated by the exigencies of a national emergency such as a war or an economic crisis, whereas a much longer period would conceivably be reasonable in the case of an amendment changing the term of office of the President. The suggested test laid down by Jameson 13 which seems to be a workable one is that a proposed amendment

has relation to the sentiment and felt needs of today, and that, if not ratified early while the sentiment may fairly be supposed to exist it ought to be regarded as waived ***

Such a test certainly sets up no rigid rule which will result in a similar time limitation being applied to every case. It only prescribes that an independent judgment should be used in each particular case in deciding whether sufficient time has elapsed to render the passage of an amendment unnecessary from a practical standpoint and unsupported by general public sentiment.

CITATIONS

! Orfield, Lester B., The amending of the Federal Constitution (Chicago Callaghan & Co., 1942), p. 42. 146 Kan. 390 (1937), aff'd, 307 U. S. 433 (1939).

270 Ky. 1 (1937), aff'd. 271 Ky. 252 (1937), dis'd 307 U. S. 474 (1939).

443 Stat. 670 (1924).

256 U.S. 368 (1921).

Ibid., 376. Congress adopted the seven year limitation provision because, at that time, several proposals which had long lain dormant were nevertheless subject to being resurrected and acted upon by several states. Between the adoption of the Constitution and 1920, twenty-one amendments had been proposed by Congress and seventeen had been ratified by the requisite three-fourths of the states-some within a single year after their proposal and all within four years (256 U. S. 372). Each of the remaining four, however, while ratified by some of the states, was not ratified by a sufficient number. Two, in fact, were missing only one state for the required ratification (U. S. Congress, House, 54th Cong., 2l sess., 1897, H. Dor. 353, pp. 300, 323). Ohio tried to ratify a long-dormant amendment, in order to defeat the slavery issue. In the light of these circumstances, Congress, in proposing the Eighteenth Amendment, fixed seven years for the period of ratification (U. S. Congress, Congressional Record, 65th Cong., 1st sess., 1918, ibid., 2d sess., 1919, pp. 423-478).

As of 1949, the average time for ratification of the first twenty-one amendments has been computed to be 1 year, 6 months, 21 days; 3 years, 6 months, 25 days has been the longest time used in ratifying (Coleman v. Miller, 307 U. S. 433, 453 (1939)).

146 Kan. 390 (1937).

270 y. 1 (1937) aff'd, 271 Ky. 252 (1937), dis'd 307 U. S. 474 (1939).

10 307 U. S. 433 (1939); on the same day the court diemussed Chandler v. Wise, 307 U. S. 474 (1939) on the round that the Governor's action had rendered the question moot.

"1256 U. S. 348 (1921).

1. The view naght be taken that as a result of the Coleman cas, the issue of "reasonable time" is no loncer pertinent, or necessary, that Congress, with cole authority over the amending process, can recognize state action regardless of whether the states aced withta a reson., le time. As a practical matter, with Jeral question put aside, it would seem that Caat schmalfuse, is good procedure, the reasonable time metuol 1 Consider Bit maestions vel tung to th

Tappeson Costitutional Conventy

CHAPTER 14

WITHDRAWAL OF STATE APPLICATIONS

May a State, once having made application for the call of a constitutional convention, withdraw or rescind its application? Some writers on the subject believe that the legislatures may do so; at least one does not.

1

3

The Supreme Court in Coleman v. Miller, on the question of whether a State could withdraw or rescind its prior rejection of a proposed amendment to the Constitution, stated that the matter concerned a political question over which Congress had the ultimate power of decision. Congress, with respect to the 14th amendment, did not permit the States of Ohio and New Jersey to rescind their ratifications of that amendment. It has taken no position with respect to the withdrawal of State applications.

If precedent of the ratification process is followed, then it would seem that legislatures could not withdraw their applications.3a However, the wisdom of applying such similar reasoning may well be questioned.3 The rescinding resolutions of Iowa in 1945 and of North Carolina in 1951 both point out that their applications were being withdrawn because of the change in world conditions following World War II. It would not seem politically wise for the Congress to refuse to permit withdrawal of a State application where there was good reason to believe that a proposed amendment would be undesirable and would run counter to the public interest.

The requirement, discussed in other chapters, that applications be "contemporaneous" and related, generally, in subject matter would have reduced meaning if States were not permitted to rescind their applications. Such a requirement would not, in truth and in fact be met, since the general sentiment for a convention could not be said to exist in the necessary two-thirds of the States when one or more of those States are attempting to withdraw their applications.

The present attitude among legislators seems to be that withdrawal is a permissible procedure since 12 States in the last 12 years alone have adopted resolutions rescinding their applications. The application process is, of course, distinguishable from the ratifying of proposed amendments. In the one instance, in a State application only an initiating action is sought with no one finally committed to the substantive proposition contained in the application, not even the State which submits it. In the other instance, Congress has completed its work and is committed to the position outlined in the proposed amendment. Further, many States submit applications for the sole purpose of prodding Congress into taking action on a proposed amendment pending in the Congress, without ever having the slightest hope that Congress will call a convention. To hold them bound to their petitions would not be a politic or realistic approach. Since this question, like others, is a political one, Congress notwithstanding its