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[From the American Bar Association Journal, July 1960]

CONSTITUTIONAL LAW: THE STATES AND THE AMENDING PROCESS-A REPLY

(By Bernard Fensterwald, Jr., of the Massachusetts and District of Columbia Bars)

This article is in answer to an earlier one appearing in the February, 1959, issue of the Journal. The earlier article declared that Congress was duty-bound to call a constitutional convention for the purpose of proposing an amendment to the Constitution limiting the Federal Government's power to collect income taxes. This contention rested upon the author's calculation that the legislatures of thirty-three statestwo thirds of the forty-nine had submitted resolutions calling for such a convention. Mr. Fensterwald examines the problem and answers the contentions put forth in the 1959 article.

In the February, 1959, issue of this Journal there was an article calling for a constitutional convention to draft an amendment to limit federal income taxes. The author was Frank E. Packard, who is Executive Vice President of the Western Tax Council and a veteran of the Spanish-American War.

The first paragraph of his article was as follows:

"On March 2, 1957, the Legislature of Idaho passed a resolution memorializing the United States Congress to call a convention for the purpose of proposing an amendment to the Constitution of the United States limiting federal income tax rates. On March 30, 1957, the Tennessee General Assembly followed suit. This meets the requirement of Article V of the Constitutions that if two thirds of the states, or thirty-three in number, petition Congress to call the convention for the purpose of proposing an amendment to the Constitution, then Congress "shall" do so. The thirty-three states which have enacted such memorializations are: Alabama, Arkansas, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming." In the balance of the article, Mr. Packard raised and ostensibly resolved some doubts as to the validity of the applications of several states, including those of seven states which have "attempted" to rescind their actions. He clearly implies that the Congress is shirking a binding duty to call a special constitutional convention to consider an amendment to limit federal income taxes. Mr. Packard goes on to say that "if Congress refuses to call a constitutional convention . . . [it] can be forced in the matter . . . [and] an action at law of mandamus in the District Court of the United States would lie against every member of the Congress".

If Mr. Packard is correct, his charge against the Congress is a most serious one. This article is an attempt to assess the validity of his position.

Let it be made clear at the outset that no effort will be made to delve into the many complex economic and political questions raised by proposals to limit the federal taxing power. We are concerned here solely with the legal and, more particularly, the constitutional aspects of the charge of dereliction of duty leveled at the Congress by Mr. Packard.

TWO METHODS OF AMENDMENT

Article V of the Constitution provides two distinct methods for proposing amendments to the states: (1) "The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments"; or (2) "[the Congress] on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments".

Method No. 1 is the only one that has been used: the Constitution has been amended twenty-two times in our one hundred and seventy years, and each time it has been the Congress which has proposed the amendment to the states, three fourths of which have ratified.

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Method No. 2 has never been used. However, this lack of use does not affect its availability. If two thirds of the states validly apply for its use, the Congress shall call a convention; conversely, until two thirds validly apply, Congress has no right or power to call such a convention.

Although Mr. Packard implies throughout his article that Congress has little or no discretion in assessing the adequacy or validity of the applications, it seems patently obvious that it is the Congress itself which must pass upon this question. Otherwise it cannot carry out its constitutional responsibility.

Are there a sufficient number of valid applications on file with Congress to confer on that body both the duty and the right to call a convention to limit federal income taxes? As a 1952 congressional report correctly observes, “In view of the serious nature of the amending process and the difficulties inherent in convention proceedings, the question of determining when Congress must call a Federal convention at the behest of the States is of more than academic interest." Therefore, let us see whether or not the two thirds requirement has in this case actually been met."

TEN LITTLE INDIANS

Agatha Christie once wrote a very popular book ("And Then There Were None") and play ("Ten Little Indians"), both of which were based on an old nursery rhyme. Every time there was a murder in the story, another little Indian statue would disappear. Eventually there were none left.

Upon examination, the thirty-three state applications are very much like the little Indians-they keep on disappearing. Not all of them vanish, but a sizable number do.

For example, South Dakota's application relates to procedures for amending the Constitution itself rather than to an amendment with respect to federal income taxes.3

And then there were thirty-two...

Maryland's memorial was adopted by the state's House of Delegates but not by its Senate, and therefore was not an application from the "legislature" as required by the Constitution.*

And then there were thirty-one...

Identical resolutions relating to limitations of the federal taxing power were passed by the two houses of the Texas state legislature, but neither house concurred in the resolution of the other, and no application was ever filed with Congress.5

And then there were thirty...

The resolutions of two states (Nevada and Montana) and the most recent resolution of a third state (Massachusetts, which also filed an application in 1941 and a rescission thereof in 1952) called upon Congress itself to propose an amendment to the Constitution which would place a limitation on its taxing powers, but made no request for Congress to call a constitutional convention." The absence of any mention of such a convention in the three later resolutions can be considered prima facie evidence that the states in question did not intend their resolutions to be regarded as applications for a constitutional convention, and Congress is of course under no legal compulsion to treat them as such. Indeed, it is most doubtful that Congress has the legal right to count these as valid applications if and when it must determine whether or not two thirds of the state legislatures have applied for the calling of a convention on a particular subject.

And then there were twenty-seven, or at best twenty-eight...

1 U.S. House of Representatives. Committee on the Judiciary. Staff Report: Problems Relating to State Applications for a Convention to Propose Constitutional Limitations on Federal Tax Rates. Washington: GPO, 1952, page 1.

2 The whole question has been rendered technically moot by Hawali's recent accession to the Union, with thirty-three states no longer constituting the necessary two-thirds before Congress must act; it now takes thirty-four. However, if Mr. Packard's contention regarding the thirty-three memorials is correct, the question remains on the horizon and cannot be so easily dismissed.

3 Brickfield, Cyril F. Problems Relating to a Federal Constitutional Convention, Washington: GPO. 1957, page 87. (Printed for the House Committee on the Judiciary.)

U.S. House of Representatives, op. cit., page 5; see also 84 Congressional Record 3320 (1939).

5 U.S. House of Representatives, op. cit., page 6.

6 Ibid., page 66; Nevada, 98 Congressional Record 8395 (1952); Montana, 97 Congressional Record 2537 (1951); Massachusetts, 98 Congressional Record 1793 (1952).

These are the only "applications" which might well be found to be invalid ab initio. There are a number of others which might well be deemed defective by Congress and which might reduce the number of valid applications to approximately one third of the state legislatures, rather than the required two thirds. In the remainder of this article I shall not attempt to predict the exact number of "little Indians" that might be left after congressional scrutiny; I shall confine my remarks to several general problems which bear on the validity of the applications.

CAN STATES CHANGE THEIR MINDS?

Mr. Packard discusses at some length whether states, once they have made application to Congress for a convention, can later change their minds and rescind their applications. He lists seven states which have adopted and forwarded to Congress resolutions to rescind their original application. He refers to Alabama, Arkansas, Illinois, Iowa, Kentucky, Rhode Island and Wisconsin. A complete list would include five more states: Louisiana, Maine, Massachusetts, Nebraska and New Jersey. It is not surprising that Mr. Packard expresses the view that such resolutions to rescind are "null and void".

He begins his argument by stating:

"Obviously, an amendment which arises through memorialization by states is equated with an amendment which arises through proposal by Congress. Similarly, the right of a state to withdraw memorialization must be equated with the right of Congress to withdraw a constitutional proposal." [Italics added.]

The first sentence is reasonable, but the use of the verb "must" in the second sentence not only seems to imply that Congress is powerless to pass upon the validity of resolutions to rescind, but also that the proposition is beyond question. Among those whom he quotes is ostensible support of his view is Professor Francis M. Burdick, who says, "It seems safe to assert that Congress, having once submitted a proposed constitutional amendment to the States, cannot thereafter withdraw it from their consideration." [Italics added.] Mr. Packard goes on to cite an impressive number of court decisions to the effect that interstate compacts or constitutional amendments, "when ratified by the legislature of a state ... will be final as to such a state." He was unable to cite a single decision bearing on the finality of applications for a constitutional convention.

Mr. Packard's contention that "the right of a state to withdraw a memorialization must be equated with the right of Congress to withdraw a constitutional proposal" is open to some doubt. Obviously, memorials by states do not in themselves produce agreement on a proposed amendment to the Constitution; such memorials are in constitutional terms-applications by state legislatures to Congress, requesting the latter to "call a convention for proposing amendments". It is the convention which proposes "an amendment" to the states for ratification.

In drafting, adopting and submitting a proposed constitutional amendment to the states for ratification, a constitutional convention would be performing an act analogous to that of Congress in proposing a constitutional amendment to the states. However, it is difficult to see how the analogy can be extended to include applications by states to Congress. It is more difficult to conclude, as Mr. Packard does, that, "The right of a state to withdraw a memorialization must be equated with the right of the Congress to withdraw a constitutional proposal." [Italics added.]

Nor are Supreme Court decisions denying the right of states to change their minds after their legislatures have already ratified interstate compacts or constitutional amendments relevant to the case in point. (Mr. Packard cites, inter ali, State of West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951), and attempts by New Jersey and Ohio to rescind their ratifications of the Fourteenth Amendment.) Ratification is the final act by which sovereign bodies confirm a legal or political agreement arrived at by their agents; a state application to Congress to call a convention is of an entirely different nature.

On the other hand, the Supreme Court stated in Coleman v. Miller that, "The question of the efficacy of ratifications by state legislatures, in the light of pre

Louisiana, 100 Congressional Record 9420 (1954); Maine, 99 Congressional Record, 4311 (1953); Massachusetts, 98 Congressional Record 4641 (1952); Nebraska, 99 Congressional Record 6163 (1953); New Jersey, 100 Congressional Record 11943 (1954).

vious rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendments." If an attempt to rescind on so important and final a matter as the ratification of proposed constitutional amendments is "a political question" for Congress to decide, then it does not seem extravagant to suggest that the validity of attempts to rescind applications for a convention would likewise be deemed a political question subject to the verdict of Congress.

It is true that Congress might wish to stipulate a cut-off date for rescissions. For example, it might say that no rescission will be considered valid after either House, upon application of two thirds of the states, has adopted a resolution to call a constitutional convention. This circumstance of course does not apply in the present case, where Congress itself has not carried out any act in the amending process beyond recording receipt of the applications. If Congress chose to accept rescission resolutions as valid, Mr. Packard's thirty-three applications would be still further reduced-to sixteen.

CONTEMPORANEOUSNESS AND HOMOGENEITY OF APPLICATIONS

There are additional problems which arise with respect to the contemporaneousness and homogeneity of those applications which were valid in the first instance. In this regard, Corwin and Ramsey state the following sensible view:

"To be obligatory upon Congress, the applications of the states should be reasonably contemporaneous with one another, for only then would they be persuasive of a real consensus of opinion throughout the nation for holding a convention, and by the same token, they ought to be expressive of similar views respecting the nature of the amendments to be sought."

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The applications listed by Mr. Packard could not be called "reasonably contemporaneous" with any degree of confidence. The first application-that of Wyoming-was made twenty years ago, and eleven of the remainder, excluding those which have been renewed, were made fifteen or more years ago.

In Dillon v. Glass, the United States Supreme Court upheld the right of Congress to fix a reasonable time for ratification of a proposed amendment, and concluded that the seven years prescribed by Congress for adoption of the Eighteenth Amendment was reasonable. The implications and scope of the Dillon v. Glass decision were further expanded by the Supreme Court in Coleman v. Miller, which also involved a proposed constitutional amendment. Here the Court stated:

"... 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." "1

In Coleman v. Miller, the Supreme Court recognized that changing political, social and economic conditions might affect the desirability of constitutional amendments proposed in response to the felt needs of a particular day, and that it was for Congress, rather than the courts, to establish time limits for ratification of proposed amendments on the basis of these "political" considerations. Although state applications to Congress repersent an earlier stage in the amending process, changing conditions naturally have an equal effect on the

8307 U.S. 433, 450 (1939).

Edward S. Corwin. The Constitutional Law of Constitutional Amendment, 26 Notre Dame Lawyer 185, 195-196 (1951). Note also the following statement by the Supreme Court with respect to contemporaneousness of ratifications:

"We do not find anything in the Article [V] 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" Dillon v. Glass 256 U.S. 368, 374.

10 256 U.S. 368 (1921).

11 307 U.S. 433, 453, 454.

desirability of constitutional amendments envisaged at that stage. It does not seem extravagant to suggest that the courts would probably also consider it within the province of Congress to fix reasonable time limits within which earlier stages of the amending process must be carried out, including the filing of applications by two thirds of the states. The twenty-year spread covering Mr. Packard's initially valid applications does nothing to strengthen his contention that Congress is now obliged to call a constitutional convention. After all, the demands on the Federal Government, especially demands of national defense, were considerably different before World War II, when the first application was made. The fact that a dozen states have rescinded or-to use Mr. Packard's language attemped to rescind their applications has a bearing on this point.

Then there is the problem of homogeneity. Although the applications which were valid in the first instance would all seek to limit the federal taxing power, there is considerable variation with respect to the stipulations proposed in each application. This in itself would not appear to present any great difficulty. As the remarks of Corwin and Ramsey might suggest, it can hardly be expected that two thirds of the states will arrive at an exact consensus in the wording of a proposed amendment in their applications to Congress for the holding of a convention. That is obviously the work of the convention.

However, five of the states have submitted applications which contain specific and identical reservations bearing upon their own validity. The applications in question are those of Nebraska, New Mexico, and the most recent applications of Michigan, New Hampshire and Maine. By their own terms these applications are effective only if "two thirds of the States make application for a convention to propose an identical amendment to the Constitution for ratification with a limitation that such amendment be the only matter before it, that such convenion would have power only to propose the specified amendment and would be limited to such proposal and would not have power to vary the text thereof nor would it have power to propose other amendments on the same or different propositions." 12 Must Congress accept these applications as being among those which are legally compelling if the stipulations set forth in them are not met? The matter is certainly open to doubt. The earlier, less restrictive applications of the latter three states were filed in 1941, 1943 and 1944, respectively, and as has been previously pointed out, their validity is not entirely certain.

A WRIT OF MANDAMUS?

In sum, a considerable number of the memorials listed by Mr. Packard either had no initial validity as relevant and proper applications, were filed fifteen or more years ago, or have been rescinded. Only about half of them are of the kind which would constitutionally oblige Congress-if there were enough of them-to call a convention for the purpose of proposing an amendment.

Mr. Packard, in asserting that two thirds of the states have filed valid applications for a constitutional convention, concluded that if Congress refused to fulfill its constitutional obligations, a writ of mandamus forcing Congress to act could be issued by the courts. However, in the case of Mississippi v. Johnson, in which the Supreme Court was asked to enjoin the President from enforcing the Reconstruction Acts, the Court declared:

"The Congress is the legislative branch of the Government; the President is the executive department. Neither can be restrained in its action by the judicial department; through the acts of both, when performed, are in proper cases, subject to its cognizance." 13

Under the doctrine of the separation of powers, the courts have refrained from issuing injunctions or writs of mandamus against the President, and they are not likely to serve a writ of mandamus on the Congress of the United States or its members. As we have seen, however, Mr. Packard's legal case is something less than iron-clad. And, as it turns out, he does not seriously propose to take it to the courts.

After attempting at great length to prove that it is mandatory for Congress to call a convention under present circumstances, and after rising the spectre of forcing Congress to act through a writ of mandamus, Mr. Packard states that,

13 Nebraska, 95 Congressional Record 7893-94 (1949); New Mexico, 98 Congressional Record 947-48 (1952); Michigan, 95 Congressional Record 5628-29 (1949); New Hampshire, 97 Congressional Record 10716-17 (1951); and Maine, 97 Congressional Record 6034 (1951). 13 4 Wall. 475 (71 U.S. 475), 500 (1866).

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