When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument.[6] Instead the House decided to propose them as supplementary.[7] It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals.[8] In the National Prohibition Cases[9] the Supreme Court ruled that in proposing an amendment the two Houses of Congress thereby indicated that they deemed it necessary. That same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the members present—assuming the presence of a quorum—and not a vote of two thirds of the entire membership present and absent.[10] The approval of the President is not necessary for a proposed amendment.[11]
Ratification
Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Two amendments proposed in 1789, one submitted in 1810 and one in 1861, were never ratified. In Dillon v. Gloss[12] the Court intimated that proposals which were clearly out of date were no longer open for ratification. However, in Coleman v. Miller,[13] it refused to pass upon the question whether the proposed child labor amendment, submitted to the States in 1924, was open to ratification thirteen years later. It held this to be a political question which would have to be resolved by Congress in the event three fourths of the States ever gave their assent to the proposal. With respect to the Eighteenth, Twentieth, Twenty-first and Twenty-second Amendments, Congress included in the text of these proposed amendments a section stating that the article should be inoperative unless ratified within seven years. In Dillon v. Gloss the Court sustained this limitation on the ground that it gave effect to the implication of article V that ratification "must be within some reasonable time after the proposal."[14] Congress has complete freedom of choice between the two methods of ratification recognized by article V—by the legislatures of the States, or conventions in the States. In United States v. Sprague[15] counsel advanced the contention that the Tenth Amendment recognized a distinction between powers reserved to the States and powers reserved to the people, and that State legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several States. The Eighteenth Amendment being of the latter character, the ratification by State legislatures, so the argument ran, was invalid. The Supreme Court rejected the argument. It found the language of article V too clear to admit of reading any exceptions into it by implication.
The term "legislatures" as used in article V means deliberative, representative bodies of the type which in 1789 exercised the legislative power in the several States. It does not comprehend the popular referendum which has subsequently become a part of the legislative process in many of the States, nor may a State validly condition ratification of a proposed constitutional amendment on its approval by such a referendum.[16] In the words of the Court: "* * * the function of a State legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State."[17]
Authentication and Proclamation
Formerly official notice from a State legislature, duly authenticated, that it had ratified a proposed amendment went to the Secretary of State, upon whom it was binding, "being certified by his proclamation, [was] conclusive upon the courts" as against any objection which might be subsequently raised as to the regularity of the legislative procedure by which ratification was brought about.[18] This function of the Secretary, purely ministerial in character, was, however, derived from an act of Congress, and was recently transferred to a functionary called Administrator of General Services.[19] In Dillon v. Gloss,[20] the Supreme Court held that the Eighteenth Amendment became operative on the date of ratification by the thirty-sixth State, rather than on the later date of the proclamation issued by the Secretary of State, and doubtless the same rule holds as to a similar proclamation by the Administrator.
JUDICIAL REVIEW UNDER ARTICLE V
Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was conclusive upon the courts,[21] it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller.[22] This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the proposed child labor amendment to the Constitution to the effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds: (1) that the amendment had been previously rejected by the State legislature; (2) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favor of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four members of the Court. The majority ruled that the plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process "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."[23] Whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favor of ratification presented a justiciable controversy was left undecided, the Court being equally divided on the point.[24] In an opinion reported as "the opinion of the Court," but in which it appears that only three Justices concurred, Chief Justice Hughes declared that the writ of mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress.[25] On the same day, the Court dismissed a writ of certiorari to review a decision of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratify the child labor amendment illegal and void. Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State court, the Supreme Court found that there was no longer a controversy susceptible of judicial determination.[26]
Notes
[1] II Madison, Journal of Debates in the Constitutional Convention, 385-386 (Hunt's ed., 1908).