Section 4

Section 4 Introduction—Section 4 An Analysis of Supreme Court Rulings Relevant to an Article V Convention An Article V...

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Section 4

Introduction—Section 4 An Analysis of Supreme Court Rulings Relevant to an Article V Convention An Article V Convention is a department of government created by the United States Constitution which is assigned a limited constitutional task—the proposal of amendments to the federal Constitution. Thus a convention is a constitutionally limited governmental power as the Constitution limits the convention to a single purpose—proposal of amendments. Many have suggested, and this will be discussed in greater detail later in this Appendix, that a convention can be limited as to agenda and amendments proposed. However this is an incorrect interpretation as the Constitution clearly grants the convention the authority to propose amendments meaning multiple subjects. Clearly multiple proposals mean a multiple agenda as the opposite, a convention repeatedly proposing the same amendment is too absurd to contemplate.. The clearest example of the right to propose amendments is the action of Congress following ratification of the Constitution when that body proposed twelve amendments simultaneously on numerous subjects. As will be shown in this section Mr. President, the courts do not agree with the interpretation of the term limited that is, pre-determination of agenda and amendment subject for the convention. It should be also noted Mr. President that while convention critics are quick to suggest a “limited” convention as to agenda and subject, none have ever proposed Congress can also be limited to such a standard. The courts have made it clear, and this will be demonstrated, that what applies to Congress equally applies to a convention. Hence, if Congress cannot be limited by the states as to agenda, amendment subject or proposal, then neither can the convention be so limited. The courts have held the people limit all government through constitutional provisions meaning the Constitution limits both extremes of government: if the Constitution mandates an act, government must perform it. If the Constitution prohibits an act, it cannot be executed. Therefore a convention to propose amendments cannot be limited to a single amendment proposal unless the convention itself so determines this choice as their action is representative of the people and not the states. As explained by John Marshall, (Chief Justice 1801-35, United States Secretary of State (1800-01), member of Congress (1799-1800), in Marbury v Madison, 5 U.S. 137 (1803) (hereafter Marbury) :

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“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible …That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American Marshall fabric has been erected. … The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? … It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. … Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. … This doctrine [the constitution is level with legislative acts] would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring those limits may be passed at pleasure. … This is too extravagant to be maintained.” Employing the principle of constitutional supremacy established in Marbury which specifies no department of government may either ignore or subvert any

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constitutional clause the Supreme Court, tasked with interpretation of the Constitution, has, and throughout its history issued several rulings relevant to an Article V Convention. These rulings have defined the “narrow limits” of the amendment process both convention, Congress and the states. Notably, while these rulings deal with a question of the amendment process as it relates congressional action the Court does not affirmatively exclude the convention from its interpretation such that the effect of the ruling does not equally apply to both Congress and convention. Further in nearly all rulings, the Court quotes from Article V and includes that portion of the article referring to a convention. From this action can be drawn the inference the Court intended its ruling apply to both Congress and convention; otherwise why include the convention process at all? Why not simply ignore that language or better still, note explicitly the ruling in question only applied to Congress and had no bearing whatsoever on the operation of a convention. In aggregate, therefore these rulings answer nearly all of the operational and constitutional questions about an Article V Convention. Many people erroneously assume Mr. President because the convention clause is found in the text of Article V, only that text applies to a convention. As with all departments of government created by the Constitution, as Marshall explains, the convention is limited by all constitutional clauses. No clause may be exceeded or ignored by any entity described in the Constitution including the convention. Thus, any constitutional question about a convention requires the examination of all constitutional clauses and may therefore be answered by one or number of clauses located elsewhere in the Constitution. Under this principle the courts have addressed all issues surrounding the convention providing the necessary interpretations required allowing the convention the ability to function constitutionally and operationally. In the case of an Article V Convention, the courts, as will be shown Mr. President, have determined Article V is a specific, set procedure which when followed ultimately results an amendment to the Constitution. The courts have made two points abundantly clear through repeated rulings: (1) the people are the source of sovereignty (re-affirming the statement made in the Declaration of Independence that it is the right of the people to alter or abolish our form of government) and (2) that the procedure specified in Article V may not be modified by either state or federal court or legislatures. In sum, the people must be part of the amendment process and cannot be excluded from that process and unless Article V textually states as part of its specified procedure an act or power of a designated entity, such power or act does not exist. Likewise, if the Article does textually state as part of its specified procedure an act or power of a designated entity, said entity cannot refuse to comply with the constitutional command by any means of evasion whatsoever.

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This section examines several relevant Supreme Court rulings related to an Article V Convention. Each Court ruling will be presented with a discussion page preceding it explaining the significance of that Court ruling. In some instances other relevant material will be presented along with the decision. In some instances, due to the length of the ruling, only the relevant portion of that ruling is presented. This will be noted as appropriate. Rulings of shorter duration will be presented in full length.

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General Discussion

HOLLINGSWORTH v. STATE OF VIRGINIA, 3 U.S. 378 (1798) Hollingsworth v State of Virginia, 3 U.S. 378 (1798) (hereafter Hollingsworth) is a landmark decision of the Supreme Court of the United States. The specific question put before the Court in 1798 was “whether the Amendment [the Eleventh Amendment] did, or did not, supersede all suits depending, as well as prevent the institution of news, suits, against any one of the United States, by citizens of another State.” The Eleventh Amendments states, “The Judicial power of the United States shall not be construed to extend to any suit in law and equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state.” The Court was asked to decide whether any amendment had effect on already commenced proceedings (in this case already begun legal proceedings). Arguments that the amendment did not prohibit such actions already commenced or that would be commenced were (1) “The amendment has not be proposed in the form prescribed by the Constitution, and, therefore, it is void” and (2) the language of the amendment had grammatical errors within it making the words “commenced or prosecuted” “ambiguous and obscure.” Samuel Chase, (Associate Justice 1796-1811, Signer of the Declaration of Independence 1776), dispensed with the second argument with a single footnote notation, “The words ‘commenced and prosecute,’ standing alone, would embrace cases both past and future.” Chase

For our purposes Mr. President no further time need be spent on this portion of the ruling. This then leaves the first objection, that “upon an inspection of the original roll, it appears that the amendment was never submitted to the President for his approbation. The Constitution declares that ‘every order, resolution, or vote, to which the concurrence of the senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, etc.’ Art 1.s.7. … The Constitution, likewise declares, that the concurrence of both Houses shall be necessary to a proposition for amendments. Art. 5. … The concurrence of the President is required in matters of infinitely less importance; and whether on subjects of ordinary legislation, or of constitutional amendments, the expression is the same, and equally applies to the act of both Houses of Congress.”

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Again Justice Chase dispensed the argument with a single footnote, “There can, surely, be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.” Chase’s determination was clearly based on the argument of U.S. Attorney General Charles Lee (1785-1801) who argued in part: “An amendment of the constitution, and the repeal of a law, are not manifestly, on the same footing. … The amendment, in the present instance, is merely Lee explanatory, in substance, as well as language. From the moment those who gave the power to sue a state, revoked and annulled it, the power ceased to be part of the constitution; and if it does not exist there, it cannot in any degree be found, or exercised else where. The policy and rules, which in relation to ordinary acts of legislation, declare that no ex post facto law shall be passed, don not apply to the formation, or amendment, of a constitution. The people limit and restrain the power of the legislature, acting under a delegated authority; but they impose no restraint on themselves. They could have said by an amendment to the constitution, that no judicial authority should be exercised, and any case, under the United States; and, if they had said so, could a court be held, or a judge proceed, on any judicial business, past or future, from the moment of adopting the amendment? On general ground, then, it was in the power of the people to annihilate the whole, and the question is, whether they have annihilated a part, of the judicial authority of the United States? Two objections are made: 1st, That the amendment has not been proposed in due form. But has not the same course been pursued relative to all the other amendments that have been adopted? And the case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy, or terms, of investing the President with a qualified negative on the actions and resolutions of Congress.” The similarity between Lee’s statement and Marshall’s statement in Marbury cannot be disregarded. Both men based their propositions on the principle that the people have the right to alter or abolish not any other political body. While the people may operate through representative bodies in order to execute their desire, nevertheless the history of this nation demonstrates irrefutably the people have the inherent right to choose who shall represent them in this endeavor and through that act therefore determine what changes in their form of government shall occur.

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Before addressing the obvious question of the Hollingsworth and its apparent conclusive resolution regarding president involvement in the amendatory process versus the request made in my letter, there is one other relevant piece of information to consider. In 1861, President James Buchanan, 15th President of the United States, (1857-61), submitted an application for an Article V Convention from the state of Kentucky to Congress (pages 17475). The Senate ordered the resolution to “lie on the table” as prescribed by Madison in 1789. The House also took note of the application ordering it to be published in the Congressional Globe. Buchanan At this time, public record shows there were insufficient applications to cause a convention call. Therefore President Buchanan, unlike today, could take no further action regarding any application. The significance of this presidential action and subsequent acceptance of it by both houses of Congress cannot be overlooked Mr. President. Congress accepted the president may bring to its attention applications submitted by the states for a convention call. Thus Congress has permitted the President of the United States to insert himself in the convention process. But to what extent is the president permitted to do this and under what basis of law may he interpose himself? The Supreme Court ruled emphatically in Hollingsworth that the president shall have no part “in the proposition or adaptation of amendments.” But in this circumstance Mr. President you have proof of violation of the Constitution by Congress as to its obedience of the amendment process. The Constitution mandates Congress commence a process of amendment procedure Congress refuses to comply with. In doing this Congress violates other constitutional provisions—the oath of office and supremacy clauses. The Constitution explicitly states the president shall “take care that the laws be faithfully executed.” His oath of office demands he “…preserve, protect and defend the Constitution of the United States.” Between these two textual clauses there is no doubt the duty of the president is not only to preserve statutory but constitutional law as well. Hence if law exists within the Constitution that mandates an action by the government the president is authorized (indeed mandated) to take care to preserve the Constitution. Any other interpretation of presidential duty permits the destruction of the Constitution. As Chief Justice Marshall stated, “This is too extravagant to be maintained.” In preserving the integrity of the Constitution, when the president uses a power expressly assigned him by the Constitution how can it be argued he cannot use this power to carry out his assigned duty of constitutional

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preservation? How can it be reasonably proposed that in faithfully preserving the constitutional process of amendment while not being involved in any specific amendment proposal, the president has violated the terms of Article V which, while not assigning a specific role in the process, are based on the presumption all parties who are involved will obey the process as described and will not violate the process described either by overt act or omission. In the circumstance of Congress refusal to obey the Constitution, the act of disobedience is not directed against any one amendment proposal such that president intervention would aid in the proposition or adoption of that amendment but instead is directed at the entire amendment process. The fact of the obstruction is what mandates presidential intervention, not the promotion of a particular amendment proposal. The president is therefore dealing with the process rather than a proposal. The issue in Hollingsworth concerned a specific amendment proposal. The Court did not say the president cannot preserve the Constitution when it comes to the amendment process only that he may not be involved in the proposition of a specific amendment in that his consent is not required for that specific amendment to be proposed. Surely the president, particularly when he has expressed powers to resolve this constitutional violation, cannot be restrained by the assumption his action violates Hollingsworth in that the president shall have no role in the proposition or adoption of amendments meaning he has no veto power over an amendment proposal (which was specifically the question the Court addressed in its response) when in fact he is dealing with an assumed veto power by Congress not prescribed or contemplated by the people who created the Constitution. The president’s job simply put is to preserve the Constitution “as is” not as others in power would like it to be. Moreover, the applications, Mr. President, are intended for the convention not Congress to resolve. By its act of refusal to call when mandated to act, Congress has unconstitutionally inserted a new provision into the Article V process such that applications intended by the states for a convention to address are instead resolved by Congress by its assumption of a veto of the entire convention process. The convention cannot carry out its function to propose amendments until it exists to do so. Article V is explicit: Congress must take the necessary step of call in order to begin the convention and cannot abort the process by any means whatsoever. Thus, Mr. President, causing Congress to convene in order to count state applications for an Article V Convention cannot be considered involving yourself in an amendment proposal as the convention still retains all aspects of consideration related to proposal and it will be the convention, not you sir, that will propose the amendments and exclusively holds the right of veto over any amendment proposal. Rather you are preserving the constitutional process described in Article V by compelling Congress to be bound by that process as

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the Constitution mandates without effecting or affecting any conclusions regarding amendment proposals a convention will determine. Mr. President you are simply ensuring the law of the Constitution is faithfully executed as you are required to do for any law. Moreover, Mr. President, the Constitution affords you the means to avoid any question of constitutional impropriety. The Constitution requires the president call Congress into special session. No other officer is so authorized. The Constitution does not require the president attend or actively participate in the special session. Therefore the president may avoid any question of constitutional impropriety by sending in his place the only person in government who simultaneously holds office in two branches of government— the vice president. Hollingsworth does not prohibit the vice president from being involved in the “proposition or adaptation of proposed amendments” because the vice president, an officer of the executive branch, also is President of the Senate, an officer of the legislative branch. The vice president has every right to participate in the “proposition and adaptation of proposed amendments” to the extent provided in the Constitution. In this latter capacity the vice president can preside over the special session of Congress and present each application to Congress until 34 applications from 34 states are presented and verbally counted by Congress. At which point the Constitution demands Congress issue a convention call. As no debate, vote or committee is permitted of Congress, as noted in the accompanying letter, the on-going convention call makes future special sessions unnecessary. In sum, Hollingsworth does not restrict the president from using designated constitutional powers assigned the president by the Constitution with the specific intent of preserving the constitutional processes within the Constitution where Congress, wholly without constitutional support, has violated that process.

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U.S. Supreme Court HOLLINGSWORTH v. STATE OF VIRGINIA, 3 U.S. 378 (1798) 3 U.S. 378 (Dall.) Hollingsworth, et al.

v. Virginia. February Term, 1798 The decision of the Court, in the case of Chisholm, Ex'or. versus Georgia, (2 Dall. Rep-419) produced a proposition in Congress, for amending the Constitution of the United States, according to the following terms: 'The Judicial power of the United States shall not be construed to extend to any suit in law and equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state.' The proposition being now adopted by the constitutional number of States, Lee Attorney-general, submitted this question to the Court, Whether the Amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits, against any one of the United States, by citizens of another State? W. Tilghman and Rawle, argued in the negative, contending, that the jurisdiction of the Court was unimpaired, in relation to all suits instituted, previously to the adoption of the amendment. They promised, that it would be a great hardship, that persons legally suing, should be deprived of a right of action, or be condemned to the payment of costs, by an amendment of the Constitution ex post facto; 4 Bae. Abr. 636 7. pl. 5. And that the jurisdiction binder, before regularly established, the amendment notwithstanding the words 'shall not be construed,' etc. must be considered, in fact, as introductory of a new system of judicial authority. There are, however, two objections to be [3 U.S. 378, 379] discussed: 1st. The amendment has not been proposed in the form prescribed by the Constitution, and, therefore, it is void. Upon an inspection of the original roll, it appears that the amendment was never submitted to the President for his approbation. The Constitution declares that 'every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the

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Senate and House of Representatives, etc.' Art. 1. s.7. Now, the Constitution, likewise declares, that the concurrence of both Houses shall be necessary to a proposition for amendments. Art. 5. And it is no answer to the objection, to observe, that as two thirds of both Houses are required to originate the proposition, it would be nugatory to return it with the President's negative, to be repassed by the same number; since the reasons assigned for his disapprobation might be so satisfactory as to reduce the majority below the constitutional proportion. The concurrence of the President is required in matters of infinitely less importance; and whether on subjects of ordinary legislation, or of constitutional amendments, the expression is the same, and equally applies to the act of both Houses of Congress. 2nd. The second objection arises from the terms of the amendment itself. The words 'commenced or prosecuted,' are properly in the past time; but, it is clear, that they ought not to be so gramatically restricted; for, then, a citizen need only discontinue his present suit, and commence another, in order to give the court cognizance of the cause. To avoid this evident absurdity, the words must be construed to apply only to suits to be 'commenced and prosecuted.' The spirit of the constitution is opposed to every thing in the nature of an ex post facto law can be passed by the Legislature of any individual State. Ibid. s. 10. It is true, that an amendment to the Constitution cannot be controuled by those provisions; and if the words were explicit and positive, to produce the retrospective effect contended for, tHey must prevail. But the words are doubtful; and, therefore, they ought to be so construed, as to conform to the general principle of the Constitution.* In [3 U.S. 378, 380] 4 Bae. Abr. 650. pl.64. it is stated, that 'a statute shall doctrine never have an equitable construction, in order to overthrow an estate;' but, if the opposite I prevails, it is obvious that many vested rights will be affected, many estates will be overthrown. For instance; Georgia has made and unmade grants ofland, and to compel a resort to her courts, is, in effect, overthrowing the estate of the grantees. So, in the same book (p. 652.pl.91. 92.) it is said, that 'a statute ought to be so construed, that no man, who is innocent, be punished or endamaged;' and 'no statute shall be construed in such manner, as to be inconvenient or against reason:' whereas the proposed construction of the amendment would be highly injurious to innocent persons; and, driving them from the jurisdiction of this court saddled with costs, is against every principle of justice, reason, and convenience. Presuming, then, that there will be a disposition to support any rational exposition, which avoids such mischievous consequences, it is to be observed, that the words 'commenced and prosecuted' are sinonimous. There was no necessity for using the word 'commenced,' as it is implied and included in the word 'prosecuted;' and admitting this glossary, the amendment will only affect the future jurisdiction of the court. It may be said, however, that the word 'commenced' is used in relation to future suits, and that the word 'prosecuted' is applied to suits previously instituted. But it will be sufficient to answer, in favor of the benign construction, for which the Plaintiffs contend, that the word 'commencing' may, on this ground, be confined to actions originally instituted here, and the word 'prosecuted' to suits brought hither by writ of error, or appeal. For, it is to be shown, that a state may be sued originally, and yet not in the Supreme Court, though the Supreme Court will have an appellate jurisdiction; as where the laws of a state authorize such suits in her own courts, and there is drawn in question the validity of a treaty, or statute of, or authority exercised under, the United States, and the decision is against their validity. 1 Vol. p. 58. s.13. p. 63. s. 25. Upon the whole, the words of the amendment are ambiguous and obscure; but as they are susceptible of an interpretation, which will prevent the mischief of an ex post facto Constitution (worse than an ex post facto law, in as much as it is not so easily rescinded, or repealed) that interpretation ought to be preferred. Lee, Attorney General. The case before the court, is that of a suit against a state, in which the Defendant has never entered an appearance: but the amendment is equally operative in all the cases against states, where there has been an appearance, or even where there have been a trial and judgment. An amendment

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[3 U.S. 378, 381] of the constitution, and the repeal of a law, are not, manifestly, on the same footing: Nor can an explanatory law be expounded by foreign matter. The amendment, in the present instance, is merely explanatory, in substance, as well as language. From the moment those who gave the power to sue a state, revoked and annulled it, the power ceased to be a part of the constitution; and if it does not exist there, it cannot in any degree be found, or exercised, else where. The policy and rules, which in relation to ordinary acts oflegislation, declare that no ex post facto law shall be passed, do not apply to the formation, or amendment, of a constitution. The people limit and restrain the power of the legislature, acting under a delegated authority; but they impose no restraint on themselves. They could have said by an amendment to the constitution, that no judicial authority should be exercised, in any case, under the United States; and, if they had said so, could a court be held, or a judge proceed, on any judicial business, past or future, from the moment of adopting the amendment? On general ground, then, it was in the power of the people to annihilate the whole, and the question is, whether they have annihilated a part, of the judicial authority of the United States? Two objections are made: 1st, That the amendment has not been proposed in due form. But has not the same course been pursued relative to all the other amendments, that have been adopted?* And the case of amendments is evidently a substantive act, unconnected with the ordinary business of legislation, and not within the policy, or terms, of investing the President with a qualified negative on the acts and resolutions of Congress. 2nd, That the amendment itself only applies to future suits. But whatever force there may be in the rules for construing statutes, they cannot be applied to the present case. It was the policy of the people to cut off that branch of the judicial power, which had been supposed to authorize suits by individuals against states; and the words being so extended as to support that policy, will equally apply to the past and to the future. A law, however, cannot be denominated retrospective, or ex post facto, which merely changes the remedy, but does not affect the right: In all the states, in some form or other, a remedy is furnished for the fair claims of individuals against the respective governments. The amendment is paramount to all the laws of the union; and if any part of the judicial act is in opposition to it, that part must be expunged. There can be no amendment of the constitution, indeed, which may [3 U.S. 378, 382] not, in some respect, be called ex post facto; but the moment it is adopted, the power that it gives, or takes away, begins to operate, or ceases to exist. The Court, on the day succeeding the argument, delivered an unnanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state.

Footnotes [ Footnote * ] Chase, Justice. The words 'commenced and prosecuted,' standing alone, would embrace cases both past and future. W. Tilghman. But if the court can construe them, so as to confine their operation to future cases, they will do it, in order to avoid the effect of an ex post facto law, which is evidently contrary to the spirit of the

constitution. [ Footnote * ] Chase, Justice. There can, surely, be no necessity to answer that argument. The negative of the President applies only to the ordinary cases oflegislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.

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Tbe PRESIDING OFFICER laid before the Senate a lette1· from the chief clerk of the Court of Clnims, transmitting decisions of the Cout·t of Claims adverse to the claim of Thomus O. Selrridge; the claim of Thankful Nengle, administra· tor of E11os Grannis; the dnim of James Paxton, executor of John Jordon; and the claim of Moses Yale. · Also, decision& of the Court of Claims in favor of the claim of Constance Bateman and others; the clain1 of Jacob p. Leese, ruisignce of Thomas O. Lnrllin, accompanied by the following bills: A bill for thll relief of CQnstancc Bateman a 11 d others; and A bill for tho rclfof of Jacob P. Leese, assignee of Thomas O, Larkin. ,T he reports and bills were referred to the Comnmtee on Claims. · RBCONSrDBll.ATION Oli' A l!ILL.

HOUSE OF REPRESENTATIVES. TtrESDA.Y, Ftl1ru11ry 5, 1861. The Hous11 met at t\velvc o'clock, m. Prayer by the Chnpl11in, Rev. TH0~1As H. STO~KTOY. ThcJ ournal of yesterday was ~eud and approved. REPORT -ON FOREXON COlIMERCE.

The Speaker, by unanimous consent, laid befoi-e the House a letter from the SeG•-etary of State, transmitting the annual report on foreign commerce for the year1860; whiohwnslaidupon the.table, and ordered to b~ p1·inted_ Mr. FLORENCE moved that five thousand extra copie~ of said repllrt be prin U)d. The _mo~1on was f!?Ce;red, under the rules, to the Commmee on Pnntmg. CJJARLES GORDON. ·



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>M ~reotMtl•fact!on 10 perform th!• duty; and lfe<>I qolte .:onndem tbot Congre., wm· bestow npon these resoluUons

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-resoJuti~ns odopt~ by thc·ocner.nl Assembly oftbat Commnnwenlth, crmtainln: an applicaLion to Coogre.. 11>r tho call of 1rconvcnt!on for propoi>in~ ••nondments to tho G
OrJ.,..,i, Thnt thefurdter eon•idernUon uicrcofbc poot·

--~;,:.,;!' tB ll~e~opi9ft~~-l>J!I!~ ~.

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rri!· tbehT;~it~yi-;;;f3!b~;e!~~efa:~ ~!~if~:

· l hav~ received frorn ll•<:...Covernor of Kentucky certain

poned to to-morrow. The PRESIDING OFFICER. The $enntor firom cxns moves lhattho Senate d o now a djourn. Mr. BIGLER. Insk the Senntor to wilhdi·aw , . [ Oh t h e mouon for a moment. , no. · · was ngreed "to; nn d th'}e S enate Tl1e mouon d 8 d"

,

referred to ihe Committee on Territorie11. . Mr. I objec.t. There is such Terri· tory in existence. • · · The SPEAKER. H can be received undertlie I d ill b ...r. d th c· ru es, an w e r ... erre to e ommlttec on Tetritoric.s. · Mr. SICKLES. As a memorial ? The SPEAKER. y cs, sir; ,.,, a memorjal.

To the Sena la end llouse of lWpr•••nl
On motion of Mr. BAYARD, that the Senate reconsidet• the vote on the passage of the bill (H. R. No. 554) to extend the dght of appeal from decisions of circuit cou1•ts to the Supreme Court af the United States.

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DEL&GATB lllWM IDAHO.

RESOLUTIONS OF XENTUCil:Y.

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Mr. FARNSWORTH. I rise to a question of vilef. 1 de$ire to present the certifietite. of

The PRESIDING OFFICER laid before the Senate the following message from the President of the United States: •

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OONGRESSIDNAL: GLOBE; -.

If l can objeet . to i~, I

the Halts of leg1slatton.

certam!y-do.

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The SPEAKER. The gentleman from Lou•

isiana will proceed, by unanimoiis·consonl. . · Mr•.TA YLOR. ·Mr. anll genUemen of the House· of Represcm.atives, tfie :11ci which it ~o my purpose.toferform,of-wi.thr;l!a\tiil~trpm tlus assemblage o the. RepreSl!ntaQvc.s ~of. the AmArir.an people, in obedience . ~- the ·will ·of the L!AnILI:I'IES o~· SBIP•OWNERS. people of my Stale, fa one of-..iio ordinary oe,curMr. ELY, by unanimous consent, introduced rence, and ii i.s one which impresses me with reel· a bill .lo amend 1111 act entitled ... An act to limit in)1;a of the gravest and most profound.anx:iety. the liability of ehip-owners, and for other pur- , With the permission of the HoiJSe, I wilha]!"e the poses," arproved Mnrch 3, 1651; which was read liberty of saying that-which· occura to my mind n ?r.st and second time, and 1cferred lO 1.lte Com-. in regard to the eondit~on in wliich we are now mtuce on Commerce. 1 pla~d as a pevple,and tn regard to whatts·before MOWRY BATES 1 us in the future. I "hall notc"'!t any look back• . ward. lsh1>llrnnke no obs,,..w.i.uonaon .1 heoccur• Mr. BRAYTON. ~ask the unanimoU;S con- , renccs that huve proch>ced -the results now before I sent of the House to d1scha1Je the Co~!"lltee_ of us: l shall onl.y speak of the presen~po~ition of the '\-V:hole House fr~m the iurther ~ons1derauon I, this gl·eal. country, an.d the fulure which '"_about of a bill (H. R. No. •85) for the relief of Mowry I to open upon l\B. • , .. Butcs, of Rhode Islund. l We, the Repre$ental.\ves ofthegreate.st Repu}).. ~r. FENTON I cnll for tile l·cgulnr order of lie whjch the world has el'i:r yetseet?, the Reprc. busmeas. sentativ.csof a .people who, in the ordinary-course SEOl:SSlON OF LOUISIANA. of Provldencc, were destined to become the great· The SPEAKER. The Chail· !\Sks the permis- est t!'e world. has eyer yet k~own, arc now wit· sioii of the House to give the tloor lo the gentle- nessmg the d1ssolut1on of a . mighty f1.11meof Go.v man from Louisionn, [Mr. Tayi.oR,] who tlruiires eromeSnt. ll!ithSin thol lna,t fe.wh_wcUek~, WJ bavde to make n few observations, seen rate n ..er ta.te eaymg t is mon •Orme No. o])jection \vns made. by ou1· fathers for lhe common good of all; We know that that has been caused by dilfe~ences of Mr.TAYLOR. Mr. SlJeaker, I send to the ' ormion between the inhabitants of two portions Clerk'll desk, io order that lt may lie read, a copy o this Confederacy-differences of otiinion that of the ordioo.ncc of the Stata. of Louieiano., by have grown out of the change of aent.1ment ariswhich site declares bereonncction with the U11ion . ing out·of a change in the situation of the peop)e now existing between tho States to be dissolved. of a portion of the States. Without sp~alting of Thnt ordinance was, I am told, received by the thooo circums1anccs, wilhout speaking of t!te fiicts Senators from the Stute of Louisiru1a, on Satur- that have Jed to the diepl•y of these dit:rerence~, d I I · d ~ ~ ay !lSt. 1 was not commumcate LO me, nor it is enough fot me to BILY tbnt these ditTeren<:cs hnd I any knowledge of ils having nrrived in this are of such a character that the people of..a le.rgc · ·11 ·, JI · d b 1J city• t1J 1• IWill> ca•ua of the United Stat~,,, · tl Y menuone · r l Y sn gen e· ~rtion "· the peonle ,. of a "num~ mo.ow >om met!n ie court-roomo 11c upI"?me r of the sovereign States, bave arrived ru. the Court of the . Un11ed States, yesterday mo.-mog. conclusion thnt they can no longer remain mem· I then went mto ihe Sennta Chambrr_, and there bers of this Unioo wi1h safety to .1hemselves and the foet was. arm.ounccd _that n.,,,cot<>dU.ol.cU•c~mio~hcl1...,,U.aSl4t~ojI.outhe boundaries set to that action by the public 1SUIM a~d other stat!" >mzt..i "il~lic~,und.,. lh• '°"'P'"t . sentiment of the country when the Government ~!f•d The Ctni.tilutl=oftli< Unilcd Sl.attuf .limV~, the pooplc of tho Srnte ort.ouisi~na, in convention 1:here .are llO'! _pending before this Hou~e a a.s;cmbl~renn<) orrtaln,nud iz i• hereby decloz.od variety of propos11iona ref>Orled from n comm1t1ec audord:u11ed,d1ntt11eord111aucepassodby_u~U)COD\'e11tion ' coniposed of members or all the States of wl1ich r~~~;l~:,;•y.,~rtf.~v:i~'~:~{ ~.!:~;};r1~~::;:~:~~1;{:,~ this Union. consiated when this Congres_s nsacm· amendments or •aid C l ~~~~!i~~r:.~;gi:~c':'~.~.~ 1'!Jlf.~~~ft~~~i~~=~~t~::1~!: one ~f those who dissented from the mnjo~ily ttia.t lier clll~•n• are :tb•olwd from _nil allegi:mc~ 10 oaid that rlired from the ':'•ews of those wbo supported. t!tem tn and \•ested 1mdcr the Constitution of the United States, the comm1tteetand favor their adopuon~ My any ""1 uf Congre•-, or t.tea•y, or ~nc!or any law of U.i• belief to-day iswba.tit was d1en; and,in my judg0 ;;;0 ~.~~ ~::d j,'ii,~tl~:: ~::,~ !~:C~~~tiht:;,;,W:;:.;; ment, standin_g in the p03ition Vf!Ueb. l now ocbad not been passed. -cupy, I owe 1t to myseJf, _[-Owe u to the people The undc,.1gned h.crtby certJG•d lhnt 1bq above
Speaker,

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Congressional Globe 037 Pg 00773 Yr 1861-KY-Slavery_HL.JPG (J...

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THE CONGRESSIONAL GLOBE. •

.

773

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Ji The PRESID ING OFFJCER. The question

'Ji bi\ 1he

moti on lo p.-oceed. to the consideralion ofcsecuiive bus iness. ;,1'hu motion wus nol ngrced to; there being, on "·.· division-tt;\'~•15 , noes 21. \ Mr. WIG~ ALL. Mr . P.-esidcnt-. ·• Mr. SIMMONS. 1 would like the Senntor from Tex.us lo r crmit me to fix some day for the i:o~side.-ation or tlrn tariff bill. '"'T ho P R!!:SiD! NG OFFICER. Docs theSen~pto ~· fro 111 Tcxn::> give way to Lhe Senator from •'Rhode lskmd? ·~ Mr. CLI NGMAN . 'With the permission of · !ny fric11d from Tex.cs, (os it is now four o'clock,) • l move that the Sonul£ adjourn , amt th is question will r.omt: Ufl as unfinisbC"d business to·nlOrrow. • The PRESIDING Ol'FJCER.. I un dcr~tnnd the Sr.J1fHOI' from Tc~.xas to yield to Lhe.t motion. • Mr. 'WIGFA LL . 1 ho.,·e no preforencc about -' it. I desii·e to nnswer lbe speech that hns been · in~dc by the Scuntor frQ!l'l Tennessee. l should {ls soon do ii. now us to-morrow, Jt is a fll{\tt<' l' Of no sort of consei.:ing: mode. Mr. CAMERON. A How mo an insla.nt. l th ~11k the S i.:n ato r from 'feXlUJ will givo way for a m1T""1,:"p' 'lESfDI NG OFFICER . Do•• tile S•n· . ~ .'" •

on Russian rive.r nnd at C!enr lake, (us per A1·mstron.,. •s receipts, dated Mnrch 23, nnd Mny 23 , 1852,) one hundred thou•nnd pounrl s o f beef, nt eig;hL cents per poun~, us sec. forth i n the cc.nifi~ HOUSE OF R1': PRES£NTAT fVES . cute-of R . McKee, United States Indian agen t llnd disbursing allent fo1· Cnlifo1'11i11 . Thc11mount Vo/ eo11ESDA v, H&1•tm·y G, 1861. is _to lie paJd by t11c Secrctn:y ?J' tbe Trcnsmy LO The H o1JM met nt twelve o'clock, m. Prnyer Richard Che11cry, nr to h1~ 1ct;ulfy a111lumzcd by_ the Chaplain, Rev. TaoMAs H . STOc>:TON. ng_ent or assignee, upon reccirn>g n full ucqu it· T he J ournnlof estcrdn w11sreadnnd 111 roved. k~nco therefor, signed by Chcne1·y, his ngcnt or ==....,=====;i.;i~.;.;;.;;.:..;,i assignee . hlllSSAG!l l'ItO~l 'fl!E PRESIDENT. Mr . SHERMAN. I rnustcnll for the regular The SPEAK£R iniu bcfor" the House lhcfol· orde1· ofuusiness. lowing ·message from the Presid~m of the United Mr. BURCH. T here can l:Hl no object ion to States : th is bill; nnd I hope it will be pusscu. Totkc Senate awl Uou.sc.~f J?. c1wc.fn1tati1Jes: Mr . SI'1ERi.\IJAN. T here 13 tio reason why l hav" recctvctl from""' Govero"' Qf K ntuel
proceeded to lhe consi
w.-...:::=====...

1

· ·Otor f1·oin Texus give wuy to the Senator from . Pt nnsyl i.·anfo? . ¥r. WlGF{\ ~L. 1 win give way to anybody 1f g~ntlcmi.·n will JU.St ge: L through, Wt!.h

what they wnnt, a11d ~lien kt me nlone. Mr. CAMEil.ON . 1 sec lhut it is late. ["Oh , no. 0 J L et me get 1..hl'ollgh . lt is $trl\nge thn.t n man ea11not sa;1 a wor
.,

The question beingpi.\lon i.\fr . CAM~RoN's m o· tion, thet-e were, on a division ~~y~s 22,.noes 20. EXECU:rIVE SESSION.

So the motion wru1 agreed to; and the Senate

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~~~Lu~io~ ~'f}~~~ U~:~etlr:lt~~~~,~ fu~ ~ ~~~::~~~ ii~~~ i ;11oo~~i lmmc1llawly !•lace 1110 sruuo before tlmt bndy.

ltnfford•

U:t'A lJ RllSOLU'!'IONS-AGATN.

~~~,fid~~!tg~~~~t~~,~~~et;'-t t~~r;?~~~~~!~ ~~~;, 171~~~ ~e~~:i~,~ 1~1 1~~

l\1r. GROW~ l move to reconsider the refer-

ence of the 1·P.soluttons or the Utnh Lcgislatu.re in fuvor of n Pneific 1·{\Hrond . The Committee' on

th'l Ci.ll'Cfnf c:onsill~iatit.m

m \Yhlch th('y me tmincndr t·n.. thh?d, ~n 11ccou11tol'thcdisHni;ui'ihed ~.11111 p..'1.lrlotlc iioul'
Tcnit.ories hns not.bin~ to do wi th them. They sho\l!d .go to t·hC eomrnatce oil the Ptlcific i·o.ili·oad . Mr. PHELPS. I thin k they J1nJ better go to the. Committee. on Territories. M1·. GROW. "Well, le~ them be referred to the Committee on Publ ic L ands . 'l'bey wero so reforrctl.

frnrn whic h they vrocccd, as W<'ll as ihc grC":.tl iinpunancc ot t!il' su.tijccl whi<'h they 111 ''0l \'(I, j lVAsms-oTo!i, 1-'dirwJ.r!i 5) lBGl.J AM ES UUCHAN',\N. T he m essa.~e nnd acco m1 1anyin2: l'csolutions

·• . were refenotl to the select co mnmtce of five, and ordered be printed.



Ol\ONANC!l DEPAl\T)IENT'

PnIVJ\TE LAN D CLAI MS IN NEW )[f)XJCO. T he SPEAICE:R olso lnid before the Housen communication from the acting Sccretat·y of the lnterio•·, t1•a 11smittjng a letter f1•om the sul"veyor geno1·nl of Ne\1;• i\l exico in relation Lo the nutnllcring of certain privnlc lund claims in thnt Tcrritory; also , n com1nu1ticntion from •he same source, trnn~ni i uing documt:.n ts in the New 1\!l~~x~ icnn prinuc lnnle.

Mr . WI NDOM, by unanimous consent, prns~ntcd join• resolutions of the Legislature of tlrn State of Minncsom in regnrd to n Pacific rnilrond; which were laid on lhc t ~blc, nnd Ol'dcred to uc printed. DESTITUTION IN KANSAS. .Mo-. SHERMAN. l call for the regulnro rtlcr ofl)tls ines$. Mr \ VELLS. If thcgentlcmnn from Ohio will \isl.on to mo for a moment, l think he will yielU to ma. 1-0e~i rt! LO offer a joint resolution for the considei·:.nion or the House, in regn:rd to the condition of the pcoi>lc of Kansas. A great public calnmity now hnngs over the people of that MW Stale , v.ntl I think it is n rnnttcr whieh ct1lls for eou$itler~ti on by Congress . 1 ask tlrnt the rnsolution which l propose mny be co11sidcrctl by the :House. M r. PHELPS. 1 object. L et us proceed with 1 the regular order of busi ness .

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LOAN DILL.

The SPEAKER. T he regular order of busiuess is the consideration of tbc Senate amcnumen ts to the act (H. R. 972) l\Uthorizing a loan. First nmendn,ent of lhc Senate : After the word ueuch" inso rt lhe wonl " loo.n ;n1 ~o llliH it wUI .,-cud,~' thnt =:J (::.tlcc.J r1roµo.suls tu1· :mcli Joa11/ &.e. Mr. PHELPS. l suppose there i.s no ol>jcc· tion to t..hntamondmoot. L ctL hC
se:ntt!d the memoria' of the Governor. arid L(\gislnturc of Utah T er l'itot'Y pm.ying for the consi.fuc-

tion of n railroa
I tH:~y .

·wa.3

concurred in .

ttmen
ME:\!Olt!ALS Fl\OM IJTAil .

Mr. HOOPER, by unanimous consem, pre-

I

OF MIN~SO'.rA LEOISLA'l'lJRJ;.

lt•:SOLO:t'rON

The SPEAKER also lnid before the H ousen communicntion from the Sccreiary of W iw, inclosin" an c$timatc from th
$~t umo, ~Jtlltl<:d

1

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1or the rcde:nptton rtpC.\l.h..·d.

Alt ll,(;L Oluthorlzlnit ntn;m :1.111.11mw:dl11~

ornot....-:s," he,. und the so.me. ls hi-:ret>y,

Mr . PHEL PS. I hop0 Ll1e H .ouso will concu1· in this 1.nn<'nl\111 •111 of th
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Secretary of the Tt·Cul:'iur v LO oLl.ain nearly foLtr-

T he bill wns re"d. It appropriates, for the · tcell mil!ion J ollarn, tho H ouseort!ersllncw lonn purpose ol' 1;1ayrng Lhe cltti1n of Richard Chenery, of f,2fi,000,01l0 10 lie ncgo.tintou . The conditio11 or Callfo rn wt for forn i~h l ng atlll dc]j,·c:ring, HC- of .the 'l'rt!nsury' .arHJ lh~ <:Onthtion of 1he publie cording to contrnct, to Gcoq:;c P. Arms
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General Discussion

MCCULLOCH v MARYLAND, 17 U.S. 316 (1819) McCulloch v Maryland, 17 U.S. 316 (1819) (hereafter McCulloch) was delivered by Chief Justice John Marshall. The ruling established two important principles of constitutional law—that implied powers exist in constitutional law and states cannot impede valid constitutional exercises of power by the Federal government. The decision declared the source of sovereignty in this nation lies Marshall with the people rather than the states. This fact is significant Mr. President as many in the convention movement believe the states, specifically the state legislatures, possess sole sovereign authority and therefore can control all aspects of an Article V Convention with no input from the American people whatsoever. McCulloch makes it clear that sovereign authority, and hence the authority to alter the Constitution, comes from the people, not the states. Therefore the state legislatures are not empowered to disenfranchise the American people from the amendment process. Moreover the decision places grave doubt on the theory advocated by some that states may “rescind” applications already submitted by them to Congress for a convention call. As already noted by Madison, Congress has no vote, debate or committee in the process. To accomplish a rescission of an application requires all three. Under the circumstance of no vote, debate or committee therefore such action violates a valid constitutional exercise of power by Congress in that it imposes on Congress an action it cannot constitutionally fulfill and prevents a convention call when otherwise the call is mandated to occur. McCulloch is too long to present in full length in this Appendix. Therefore only the excerpt related to Marshall’s explanation of why the people of the United States are the source of sovereignty in this country is presented. In sum Marshall states that while the state legislatures may have drafted the Constitution, it only became an effective legal document when the people, meeting in conventions, ratified the document. Thus, it was by consent of the people that the Constitution assumed sovereignty over us, not because state legislatures drafted it. Marshall also states that by this action the people also bound the states to the terms of the Constitution thus terminating any concept of independent sovereignty that had existed in the Articles of Confederation. Hence, Mr. President, the McCulloch decisions makes it clear that any actions taken by the colonies or while those colonies/states existed under the Articles of Confederation had no validity as sovereign power under the Constitution.

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importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of [17 U.S. 316, 401] hostile legislation, perhaps, of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the supreme court of the United States has the constitution of our country devolved this important duty. The first question made in the cause is-has congress power to incorporate a bank? It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation. It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer

and more complete than this. But it is conceived, that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles ofliberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. The power now contested was exercised by the first congress elected under the present constitution. [17 U.S. 316, 402] The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first, in the fair and open field of debate, and afterwards, in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity, to assert that a measure adopted under these circumstances, was a bold and plain usurpation, to which the constitution gave no countenance. These observations belong to the cause; but they are not made under the impression, that, were the question entirely new, the law would be found irreconcilable with the constitution. In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion. [17 U.S. 316, 403] It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing congress of the United States, with a request that it might 'be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states-and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the

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lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions, the constitution derives its whole authority. The government proceeds directly from the people; is 'ordained and established,' in the name of the people; and is declared to be ordained, 'in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure [17 U.S.

316, 404) the blessings ofliberty to themselves and to their posterity.' The assent of the states, in their sovereign capacity, is implied, in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. It has been said, that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government, does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), is, [17 U.S. 316, 405] emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist. In discussing these questions, the conflicting powers of the general and state governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might expect it would be this-that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, [17 U.S. 316, 406] 'this constitution, and the laws of the United States, which shall be made in pursuance thereof,' 'shall be the supreme law of the land,' and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form

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the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding.' Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only, that the powers 'not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;' thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles [17 U.S. 316, 407] of confederation, and probably omitted it, to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding. Although, among the enumerated powers of government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended, [17 U.S. 316, 408] that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution, by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the north should be transported to the south, that raised in the east, conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred, which would render these operations difficult, hazardous and expensive? Can we adopt that construction (unless the words imperiously require it), which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, [17 U.S. 316, 409] ifthe existence of such a being be essential, to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be

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General Discussion

DODGE v. WOOLSEY, 59 U.S. 331 (1855) Dodge v Woolsey, 59 U.S. 331 (1855) (hereafter Dodge) is significant in that for the first time the Supreme Court explicitly stated Congress was mandated to call an Article V Convention if the states applied in sufficient numbers to meet the two-thirds requirement of Article V. In 1855 when John Moore Wayne, (Associate Justice 1835-67, member of Congress 1829-35), delivered the Court’s opinion, the states had not submitted enough applications to satisfy the requirement. Yet the Court had no issue regarding interpreting the Article V requirement.

Wayne

As with McCulloch, only a portion of Dodge related to the people’s sovereignty and the obligation of Congress to call a convention is presented. Along with this portion is the Court’s ruling regarding obligation of oath of office and obedience to the Constitution by members of Congress. As noted by the Court, these conclusions are not reached “by way or argument or inference, but in the words of the constitution, the particulars in which it is declared to be supreme…” The Court goes on to say, “[The Constitution is supreme] to the extent of its delegated powers, over all who made themselves parties to it; States as well as person, within whose concessions of sovereign powers yielded by the people of the States, when they accepted the constitution in their conventions.” It is clear the Court’s discussion about the convention was not intended to be dicta, but instead was part of the ratio decidendi, in that it laid for the foundation of all that followed in the ruling by establishing the Constitution was supreme over the people, the departments of government and the states.

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court, in the absence of any attempt on their part to prove it in the circuit court. We remark, as to the subject-matter of the suit being within the exclusive jurisdiction of the state courts, that the courts of [59 U.S. 331, 34 7] the United States and the courts of the States have concurrent jurisdiction in all cases between citizens of different States, whatever may be the matter in controversy, if it be one for judicial cognizance. Such is the constitution of the United States, and the legislation to congress 'in pursuance thereof.' And when it was urged that the jurisdiction of the case belonged exclusively to the state courts of Ohio, under the 7th article of the amendments to the constitution, and the 16th section of the judiciary act of 1789 was invoked to sustain the position, it seems it was forgotten that this court and other courts of the United States had repeatedly decided that the equity jurisdiction of the courts of the United States is independent of the local law of any State, and is the same in nature and extent as the equity jurisdiction of England, from which it is derived, and that it is no objection to this jurisdiction, that there is a remedy under the local law. Gordon v. Hobart, 2 Sumner, C. C. Rep. 401. It was also said by both of the counsel for the defendant, and argued with some zeal, that if the court

sustained the jurisdiction in this case, it would be difficult to determine whether any thing, and how much of state sovereignty may hereafter exist. We shall give to this observation our particular consideration, regretting that it should be necessary, but not doubting that such a jurisdiction exists at the suit of a shareholder, and that the appellate jurisdiction of this court may be exercised in the matter, not only without taking away any of the rights of the States, but, by doing so, giving additional securities for their preservation, to the great benefit of the people of the United States. If it does not exist and was not exercised, we should indeed have a very imperfect national government, altogether unworthy of the wisdom and foresight of those who framed it; incompetent, too, to secure for the future those advantages hitherto secured by it to the people of the United States, and which were in their contemplation, when, by their conventions in the several States, the constitution was ratified. Impelled then by a sense of duty to the constitution, and the administration of so much of it as has been assigned to the judiciary, we proceed with the discussion. The departments of the government are legislative, executive, and judicial. They are co ordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, rightfully done by either, is binding upon the others. The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, any thing which may be done unauthorized by it is unlawful. But it is not only over the departments of [59 U.S. 331, 348] the government that the constitution is supreme. It is so, to the extent of its delegated powers, over all who made themselves parties to it; States as well as persons, within whose concessions of sovereign powers yielded by the people of the States, when they accepted the constitution in their conventions. Nor does its supremacy end there. It is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them, by the congress of the United States, when two thirds of both houses shall propose them; or where the legislatures of two thirds of the several States shall call a convention for proposing amendments, which, in either case, become valid, to all intents and purposes, as a part of the constitution, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths of them, as one or the other mode of ratification may be proposed by congress. The same article declares that no amendment, which might be made prior to the year 1808, should, in any manner, affect the first and fourth clauses in the ninth section of the first article, and that no State, without its consent, shall be deprived of its equal

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suffrage in the senate. The first being a temporary disability to amend, and the other two permanent and unalterable exceptions to the power of amendment. II Now, whether such a supremacy of the constitution, with its limitations in the particulars just mentioned,

~'

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and with the further restriction laid by the people upon themselves, and for themselves, as to the modes of amendment, be right or wrong politically, no one can deny that the constitution is supreme, as has been stated, and that the statement is in exact conformity with it. Further, the constitution is not only supreme in the sense we have said it was, for the people in the ratification of it have chosen to add that 'this constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.' And, in that connection, to make its supremacy more complete, impressive, and practical, that there should be no escape from its operation, and that is binding force upon the States and the members of congress should be unmistakable, it is declared that 'the senators and representatives, before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of [59 U.S. 331, 349] the several States, shall be bound by an oath or affirmation to support this constitution. Having stated, not by way of argument or inference, but in the words of the constitution, the particulars in which it is declared to be supreme, we proceed to show that it contains an interpreter, or has given directions for determining what is its meaning and operation, what 'laws are made in pursuance thereof,' and to fix the meaning of treaties which had been made, or which shall be made, under the authority of the United States, when either the constitution, the laws of congress, or a treaty, are brought judicially in question, in which a State, or a citizen of the United States, or a foreigner, shall claim rights before the courts of the United States, or in the courts of the States, either under the constitution or the laws of the '' United States. or ' from a·' trea!Y,..,·- - - - - - - - - - - - - - - - - - - - - - - - - - - - . . . . . ,,... ·'"' '-:. ·r .,iv:_..,~-'.•

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All legislative powers in the constitution are vested in a congress of the United States, which shall consist of a senate and house of representatives. Then stating of whom the house shall be composed, how they shall be chosen by the people of the several States, the qualification of electors, the age of representatives, the time of their citizenship, and their inhabitancy in the State in which they shall be chosen; how representatives and direct taxes shall be apportioned, how the senate shall be composed, with sundry other provisions relating to the house and the senate, the powers of congress are enumerated affirmatively. The 9th section then declares what the congress shall not have power to do, and it is followed by the 10th, consisting of three paragraphs, all of them prohibitions upon the States from doing the particulars expressed in them. Our first suggestion now is, as all the legislative powers are concessions of sovereignty from the people of the States, and the prohibitions upon them in the 10th section are likewise so, both raise an obligation upon the States not to legislate upon either; each, however, conferring rights, according to what may be the constitutional legislation of congress upon the first; and the second giving rights of equal force, without legislation in respect to such of them as execute themselves, on account of their being prohibitions of what the States shall not do. For instance, no legislation by congress is wanted to make more binding upon the States what they have bound themselves in absolute terms not to do. As where it is said 'no State shall enter into any treaty, alliance, or confederation, grant letters of marque and reprisal, coin money, emit bills of credit, make any thing but gold and silver coin a tender in payment of debts, pass any bill of

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GULF, C&S. F. R. Co. v. ELLIS, 165 U.S. 150 (1897) Gulf, C&S. F.R. Co. v Ellis, 165 U.S. 150 (1897) (hereafter Gulf) is one of several Supreme Court decisions dealing with equal protection under the law as mandated by the 14th Amendment to the Constitution. David Josiah Brewer, (Associate Justice 18901910), delivered the Court’s split decision. The Court found that it is unlawful to discriminate between citizens of the same class unless a reasonable basis “which bears a just proper relation to the attempted classification and is not a mere arbitrary selection” for such discrimination exists.

Brewer

Justice Brewer states membership in a group does not pose a barrier to equal protection under the law. Justice Brewer said, “It is well settled that corporations are persons within the provisions of the fourteenth amendment of the constitution of the United States. The rights and securities guarantied to persons by that instrument cannot be disregarded in respect to these artificial entities call ‘corporations’ any more than they can be in respect to the individuals who are the equitable owners of the property belonging to such corporations. A state has no more power to deny to corporations the equal protection of the law than it has to individual citizens.” While a convention is not a corporation, it is a group composed of individual citizens who are entitled to equal protection under the law just as members of Congress are entitled to such protection. Both groups are comprised of individual citizens. Any discrimination therefore toward either group cannot be arbitrary and must be done for reasonable cause. Moreover, as both groups are elected by the people, discrimination against one group or by one group against the other or by an outside group against one of the groups is even less supportable. Such discrimination affects not only the citizens of the group but those citizens who elected that group. Hence, the electorate has unequal representation in a constitutional body where the Constitution does not prescribe any discrimination or provide any basis or reason for there being discrimination. The function of both convention and Congress is constitutionally identical, i.e., the proposal of amendments to the Constitution. The effect of the proposal, if ratified, is identical. The Constitution authorizes no other political bodies to make amendment proposal. Article V strictly and equally limits the power of amendment proposal upon both convention and Congress. Given these facts, there is no possible way to classify the two bodies differently, i.e., two legal classes, as they are identical as to authority, effect, limit, and exclusiveness. As the Constitution excludes all others from amendment proposal, there is no

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constitutional basis for anybody to create a classification. There is no authority in the Constitution for any political or judicial body to do so. The equal protection of law clause also applies to the efforts of any group attempting to effect or affect the legal class of Congress/convention including Congress itself attempting to discriminate against the convention. Specifically state or congressional attempts to control the choice of delegate selection and convention agenda by means of state felony laws or congressional legislation are discriminatory and therefore unconstitutional. At least one state has already passed state law denying the people the right to vote for convention delegates as guaranteed by both the 14th Amendment and existing federal law. These state laws hold the delegates represent, not the people, but the state legislature. While this matter will be explored in greater depth later in this Appendix, it is enough to point out now that according the Court’s ruling in Gulf as well as McCulloch and Dodge, such legislative arbitrariness is unconstitutional. The Constitution does not grant states such authority of arrest and agenda regulation vis-à-vis members of Congress. The speech and debate clause (Article I, §6 (1)) expressly forbids such state coercion. Further Article I, §2, (1) and the 17th Amendment) guarantees members of Congress are elected. Nothing in the Constitution supports such draconian measures as elimination of the electorate from choosing members of Congress when they propose amendments or allowing the states the authority to pre-determine congressional amendment agenda. No text exists in the Constitution supporting such discrimination for the convention. Accordingly, no reasonable basis for such discrimination exists. Thus, regulation of the convention in this manner violates the principles of the 14th Amendment articulated in Gulf by Justice Brewer. As express constitutional language provides constitutional protection to one portion of the legal class, this means the express language must equally apply to convention delegates. As Justice Brewer (quoting Black, J., in State v Loomis, 115 Mo. 307, 314, 22 S. W. 350,351) states, “Classification for legislative purposes must have some reasonable basis upon which to stand. It must be evident that differences which would serve for a classification for some purposes furnish no reason whatever for a classification for legislative purposes. The differences which will support class legislation must be such as, in the nature of things, furnish a reasonable basis for separate laws and regulations.” As both convention and Congress are equal as to constitutional authority, effect, limit and exclusiveness, it follows that which creates such authority, effect, limit and exclusiveness for one portion of the class (Congress) cannot arbitrarily limited but must be all-inclusive to the remainder of the class (the convention). Hence, as Congress is elected so must delegates to a convention. (This argument is self-evident given Congress has already specified in federal

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law that convention delegates are to be elected; see 18 U.S.C. 601). Under what conditions a member of Congress is elected and what portion of a state he shall represent likewise must be equal to convention delegates. In sum, all that is required in order to place a citizen as a member of Congress empowered to propose amendments to the Constitution must equally apply to convention delegates as there is no reasonable basis to deny the equality given the circumstance of equal protection under the law as such decision would be arbitrary denying not only the delegate equal protection under the law but the citizens he is elected to represent. However, the Constitution establishes one major difference between members of Congress and convention delegates. Members of Congress, who are assigned multiple duties beyond amendment proposal, are assigned a definite term of office, either two years or six years. The convention, on the other hand is assigned a specific, single duty—proposal of amendments to the Constitution. When those amendments are proposed, the business of the convention must terminate, as the convention has no other constitutional business to conduct. Thus the term of office for a convention delegate only exists so long as the convention conducts its single constitutional duty. When the convention terminates that duty, the term of office for delegates terminates. Therefore the Constitution itself provides a reasonable purpose for discrimination as to a different term of office for delegate and member of Congress. The discrimination is not arbitrary but is a natural outcome of the differences of constitutional function between the convention and the constitutional function of Congress outside the amendment process. Finally, Mr. President, the Constitution does not provide another alternative method for reasonable determination of pragmatic questions of delegate selection, representation and so forth other than the 14th Amendment principle of equal protection under the law. Convention opponents are quick to raise questions regarding the operational aspects of a convention asserting the lack of answers justifies constitutional disobedience by Congress—that is not calling a convention when state action mandates a call. While these constitutional detractors may pose fallacious questions which ignore constitutional solutions the president does not enjoy this luxury. Article V is plain: if the states apply, a convention must be called and held. Therefore any questions regarding this absolute mandate must be resolved rather than being used as excuse to veto the Constitution. This is particularly true when a procedure exists in the Constitution to accomplish the task. It is too extraordinary a proposition to suggest unconstitutional methods such as arrest, disenfranchisement or other discrimination can be employed to execute a constitutional function. Gulf affirms the Court’s position in this regard.

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U.S. Supreme Court GULF, C. & S. F. R. CO. v. ELLIS, 165 U.S. 150 (1897) 165 U.S.150

GULF, C. & S. F. RY. CO.

v. ELLIS. No.133.

January 18, 1897 [165 U.S. 150, 152] E. D. Kenna and J . W. Terry, for plaintiff in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. The single question in this case is the constitutionality of the act allowing attorney fees. The contention is that it operates to deprive the railroad companies of property with- [165 U.S. 150, 153] out due process of law, and denies to them the equal protection of the law, in that it singles them out of all citizens and corporations, and requires them to pay in certain cases attorney fees to the parties successfully suing them, while it gives to them no like or corresponding benefit. Only against railroad companies is such exaction made, and only in certain cases. We have not been favored with any argument or brief from the defendant in error. Doubtless he believed, and justly, that nothing could be added to the arguments so fully and strongly made in support of the constitutionality of this law in the respective opinions of the two highest courts of the state. The supreme ourt of the state considered this statute as a whole, and held it valid, and as such it is presented to us for consideration. Considered as such, it is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts. No individuals are thus punished, and no other corporations. The act singles out a certain class of debtors, and punishes them when, for like delinquencies, it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts, as other litigants, under like conditions, and with like protection. If litigation terminates adversely to them, they are mulcted in the attorney's fees of the successful plaintiff; if it terminates in their favor, they recover no attorney's fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They

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must pay attorney's fees if wrong. They do not recover any if right; while their adversaries recover if right, and pay nothing if wrong. In the suits, therefore, to which they are parties, they are discriminated against, and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. All this is obvious from a mere inspection of the statute. It is true, the amount of the attornery's fee which may be charged is small, but, if the state has the power

to thus mulct them in a small amount, it has equal power to do so in a larger sum. The matter of amount does not determine the question [165 U.S. 150, 154] of right, and the party who has a legal right may insist upon it, if only a shilling be involved. As well said by Mr. Justice Bradley in Boyd v. U.S., 116 U.S. 616, 635 , 6 S. Sup. Ct. 524, 535: 'Illegitimate and unconstitutional practices get their first footing in that

way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens and against any stealthy encroachments thereon. Their motto should be obsta principiis.' While good faith and a knowledge of existing conditions on the part of a legislature are to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation is to make the protecting clauses of the fourteenth amendment a mere rope of sand, in no manner restraining state action. It is well settled that corporations are persons within the provisions of the fourteenth amendment of the

constitution of the United States. Santa Clara Co. v. Southern Pac. R. Co., 118 U.S. 394 , 6 Sup. Ct. 1132; Pembina Consol. Silver Min., etc., Co. v. Pennsylvania, 125 U.S. 181, 189 , 8 S. Sup. Ct. 737; Railway Co. v. Mackey, 127 U.S. 205 , 8 Sup. Ct. 1161; Railway Co. v. Herrick, 127 U.S. 210 , 8 Sup. Ct. 1176; Railway Co. v. Beckwith, 129 U.S. 26 , 9 Sup. Ct. 207; Railroad Co. v. Gibbes, 142 U.S. 386 , 12 Sup. Ct. 255; Road Co. v. Sandford, 164 U.S. 578 , 17 Sup. Ct. 198. The rights and securities guarantied to persons by that instrument cannot be disregarded in respect to these artificial entities called 'corporations' any more than they can be in respect to the individuals who are the equitable owners of the property belonging to such corporations. A state has no more power to deny to corporations the equal protection of the law than it has to individual citizens. [165 U.S. 150, 155] But it is said that it is not within the scope of the fourteenth amendment to withhold from states the power of classification, and that, if the law deals alike with all of a certain class, it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true (Hayes v. Missouri, 120 U.S. 68 , 7 Sup. Ct. 350; Railway Co. v. Mackey, 127 U.S. 205 , 8 Sup. Ct. 1161; Walston v. Nevin, 128 U.S. 578 , 9 Sup. Ct. 192; Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232 , 10 Sup. Ct. 533; Express Co. v. Seibert, 142 U.S. 339 , 12 Sup. Ct. 250; Giozza v. Tiernan, 148 U.S. 657 , 13 Sup. Ct. 721; Railroad Co. v. Wright, 151 U.S. 470 , 14 Sup. Ct. 396; Marchant v. Railroad Co., 153 U.S. 380 , 14 Sup. Ct. 894; Railway Co. v. Mathews, 165 U.S. 1 , 17 Sup. Ct. 243), yet it is equally true that such classification cannot be made arbitrarily. The state may not say that all white men shall be subjected to the payment of the attorney's fees of parties successfully suing them, and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or all men possessed of a certain wealth. These are distinctions which do not furnish any proper basis for the attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without any such basis.

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As well said by Black, J., in State v. Loomis, 115 Mo. 307, 314, 22 S. W. 350, 351, in which a statute making

it a misdemeanor for any corporation engaged in manufacturing or mining to issue in payment of the wages of its employes any order, check, etc., payable otherwise than in lawful money of the United States, unless negotiable and redeemable at its face value in cash or in goods and supplies at the option of the holder at the store or other place of business of the corporation, was held class legislation and void: 'Classification for legislative purposes must have some reasonable basis upon which to stand. It must be evident that differences which would serve for a classification for some purposes furnish no reason whatever for a classification for legislative purposes. The differences which will support class legislation must be such as, in the nature of things, furnish a reasonable basis for separate laws and [165 U.S. 150, 156] regulations. Thus the legislature may fix the age at which persons shall be deemed competent to

contract for themselves, but no one will claim that competency to contract can be made to depend upon stature or color of the hair. Such a classification for such a purpose would be arbitrary, and a piece of legislative despotism, and therefore not the law of the land.' In Vanzant v. Waddel, 2 Yerg. 260, 270, Catron, J. (afterwards Mr. Justice Catron of this court), speaking for the supreme court of Tennessee, deciared: 'Every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were this otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community, who made the law, by another.' In Dibrell v. Morris' Heirs (Tenn.) 15 S. W. 87, 95, Baxter, special Judge, reviewing at some length cases of classification, closes the review with these words: 'We conclude upon a review of the cases referred to above that, whether a statute be public or private general or special, in form, if it attempts to create distinctions and classifications between the citizens of this state, the basis of such classification must be natural, and not arbitrary.' In Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232 , 10 Sup. Ct. 533, the question was presented as to the power of the state to classify for purposes of taxation, and while it was conceded that a large discretion in these respects was vested in the various legislatures, the fact of a limit to such discretion was recognized, the court, by mr. Justice Bradley, saying, on page 237, 134 U.S., and page 535, 10 Sup. Ct.: 'All such regulations, and those oflike character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature or the people of the state in framing their constitution. But clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition.' It is, of course, proper that every debtor should pay his [165 U.S. 150, 157J debts, and there might be no

impropriety in giving to every successful suitor attorney's fees. Such a provision would bear a reasonable relation to the delinquency of the debtor, and would certainly create no inequality of right or protection. But before a distinction can be made between debtors, and one be punished for a failure to pay his debts, while another is permitted to become in like manner delinquent without any punishment, there must be some difference in the obligation to pay, some reason why the duty of payment is more imperative in the one instance than in the other. If it be said that this penalty is cast only upon corporations, that to them special privileges are granted, and therefore upon them special burdens may be imposed, it is a sufficient answer to say that the penalty

is not imposed upon all corporations. The burden does not go with the privilege. Only railroad of all

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corporations are selected to bear this penalty. The rule of equality is ignored. It may be said that certain corporations are chartered for charitable, educational, or religious purposes,

and abundant reason for not visiting them with a penalty for the nonpayment of debts is found in the fact that their chartered privileges are not given for pecuniary profit. But the penalty is not imposed upon all business corporations, all chartered for the purpose of private gain. The banking corporations, the manufacturing corporations, and others like them, are exempt. Further, the penalty is imposed, not upon all corporations charged with the quasi public duty of transportation, but only upon those charged with a particular form of that duty. So the classification is not based on any idea of special privileges by way of incorporation, nor of special privileges given thereby for purposes of private gain, nor even of such privileges granted for the discharge of one general class of public duties. But, if the classification is not based upon the idea of special privileges, can it be sustained upon the basis of the business in which the corporations to be punished are engaged? That such corporations may be classified for some purposes is unquestioned. The business in which they are [165 U.S. 150, 158] engaged is of a peculiarly dangerous nature, and the legislature, in the exercise of its police powers, may justly require many things to be done by them in order to secure life and property. Fencing of railroad tracks, use of safety couplers, and a multitude of other things easily suggest themselves. And any classification for the imposition of such special duties-duties arising out of the peculiar business in which they are engaged-is a just classification, and not one within the prohibition of the fourteenth amendment. Thus it is frequently required that they fence their tracks, and as a penalty for a failure to fence double damages in case ofloss are inflicted. Railway Co. v. Humes, 115 U.S. 512 , 6 Sup. Ct. 110. But this and all kindred cases proceed upon the theory of a special duty resting upon railroad corporations by reason of the business in which they are engaged,-a duty not resting upon others; a duty which can be enforced by the legislature in any proper manner; and whether it enforces it by penalties in the way of fines coming to the state, or by double damages to a party injured, is immaterial. It is all done in the exercise of the police power of the state, and with a view to enforce just and reasonable police regulations. While this action is for stock killed, the recovery of attorneys' fees cannot be sustained upon the theory just suggested. There is no fence law in Texas. The legislature of the state has not deemed it necessary for the protection oflife or property to require railroads to fence their tracks, and, as no duty is imposed, there can be no penalty for nonperformance. Indeed, the statute does not proceed upon any such theory; it is broader in its scope. Its object is to compel the payment of the several classes of debts named, and was so regarded by the supreme court of the state. But a mere statute to compel the payment of indebtedness does not come within the scope of police regulations. The hazardous business of railroading carries with it no special necessity for the prompt payment of debts. That is a duty resting upon all debtors, and while, in certain cases, there may be a peculiar obligation which may be enforced by penalties, yet nothing of that kind springs from the mere work of [165 U.S. 150, 159) railroad transportation. Statutes have been sustained giving special protection to the claims oflaborers and mechanics, but no such idea underlies this legislation. If does not aim to protect the laborer or the mechanic alone, for its benefits are conferred upon every individual in the state, rich or poor, high or low, who has a claim of the character described. It is not a statute for the protection of particular classes of individuals supposed to need protection, but for the punishment of certain corporations on account of their delinquency. Neither can it be sustained as a proper means of enforcing the payment of small debts, and preventing any

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unnecessary litigation in respect to them, because it does not impose the penalty in all cases where the amount in controversy is within the limit named in the statute. Indeed, the statute arbitrarily singles out one class of debtors, and punishes it for a failure to perform certain duties,-duties which are equally obligatory upon all debtors; a punishment not visited by reason of the failure to comply with any proper police regulations, or for the protection of the laboring classes, or to prevent litigation about trifling matters, or in consequence of any special corporate privileges bestowed by the state. Unless the legislature may arbitrarily select one corporation or one class of corporations, one individual or one class of individuals, and visit a penalty upon them which is not imposed upon others guilty oflike delinquency, this statute cannot be sustained. But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this. No language is more worthy of frequent and thoughtful consideration than these words of Mr. Justice Matthews, speaking for this court, in Yick Wo v. Hopkins, 118 U.S. 356, 369 , 6 S. Sup. Ct. 1064, 1071: 'When we consider the nature and the theory of our

institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.' The first official action of this nation declared the foundation of government in these words: 'We hold these truths to be self-evident, [165 U.S. 150, 160] that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.' While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government. Questions of this character have been frequently presented to the courts, and it is well to notice a few of the decisions. In Alabama a statute provided that a railroad corporation, or any complainant against it, taking an appeal from a judgment of a justice of the peace in a suit for damages to live stock, and failing to sustain such appeal, should be liable for a reasonable attorney's fee incurred by reason thereof. Code Ala. 1715. This statute was less obnoxious to the charge of discrimination .t han the one before us, in that it gave the same right to the corporation as to its adversary, and it was limited to cases in which an appeal was taken from a judgment already rendered by a competent judicial officer; yet the supreme court of that state (Railroad Co. v. Morris, 65 Ala. 193) held it in conflict with both the state and the fourteenth amendment to the United States constitution, saying: 'Justice cannot be sold or denied by the exaction of a pecuniary consideration for its enjoyment from one, when it is given freely and openhanded to another, without money and without price. Nor can it be permitted that litigants shall be debarred from the free exercise of this constitutional right by the imposition of arbitrary, unjust, and odious discriminations, perpetrated under color of establishing peculiar rules for a particular occupation. Unequal, partial, and discriminatory legislation, which secures this right to [165 U.S. 150, 161] some favored class or classes, and denies it to others, who are thus excluded from that equal protection designed to be secured by the general law of the land, is in clear and manifest opposition to the letter and spirit of the foregoing constitutional provisions.' And again: 'The section of the Code under consideration (1715) prescribes a regulation of a peculiar and discriminative character in reference to certain appeals from justices of the peace. It is not general in its provisions, or applicable to all persons, but is confined to such as own or control railroads only; and it varies from the general law of the land by requiring the unsuccessful

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appellant, in this particular class of cases, to pay an attorney's tax fee not to exceed twenty dollars. A law which would require all farmers who raise cotton to pay such a fee in cases where cotton was the subjectmatter of litigation, and the owners of this staple were parties to the suit would be so discriminating in its nature as to appear manifestly unconstitutional; and one which should confine the tax alone to physicians or merchants or ministers of the gospel would be glaring in its obnoxious repugnancy to those cardinal principles of free government which are found incorporated, perhaps, in the bill of rights of every state constitution of the various commonwealths of the American government.' In Mississippi an act somewhat similar in its nature (Laws Miss. 1882, p. 110) was adjudged unconstitutional (Railroad Co. v. Moss, 60 Miss. 641), the court saying, on page 646: 'The right of appeal cannot be fettered and clogged with reference to the parties litigant or the attitude they occupy as plaintiff or defendant. All litigants, whether plaintiff or defendant, should be regarded with equal favor by the law, and before the tribunals for administering it, and should have the same right to appeal with others similarly situated. All must have the equal protection of the law and its instrumentalities. The same rule must exist for all in the same circumstances.' In Michigan a statute was passed (Laws Mich. 1885, c. 234) authorizing the taxing of an attorney's fee of $25 in actions against a railroad company for damages for [165 U.S. 150, 162] cattle killed, and the supreme court of that state held it unconstitutional (Wilder v. Railway Co., 70 Mich. 382, 38 N. W. 289), saying, on page 384, 70 Mich., and page 290, 38 N. W.: 'Corporations have equal rights with natural persons as far as their privileges in the courts are concerned. They can sue and defend in all courts the same as natural persons, and the law must be administered as to them with the same equality and justice which it bestows upon every suitor, and without which the machinery of the law becomes the engine of tyranny. This statute proposes to punish a railroad company for defending a suit brought against it with a penalty of $25, if it fails to successfully maintain its defense. The individual sues for the loss of his cow, and if it is shown that such loss was occasioned by his own neglect, and through no fault of the company, and he thereby loses his suit, the railroad company can recover only the ordinary statutory costs of $10 in the justice's court; but, if he succeeds because of the negligence of the company, the plaintiff is permitted to tax the $10 and an additional penalty of $25; for it is nothing more or less than a penalty. Calling it an 'attorney fee' does not change its real nature or effect. It is a punishment to the company, and a reward to the plaintiff, and an incentive to litigation on his part. This inequality and injustice cannot be sustained upon any principle known to the law. It is repugnant to our form of government, and out of harmony with the genius of our free institutions. The legislature cannot give to one party in litigation such privileges as will arm him with special and important pecuniary advantages over his antagonist.' Lafferty v. Railway Co., 71Mich.35, 38 N. W. 660. So, in Arkansas, an act was passed providing that when stock was killed by a railroad company the owner might demand an appraisement, and that, if the appraised value was not paid within a certain time, and an action was brought, an attorney fee for the plaintiff might be taxed and collected; but it was held by the supreme court (Railway Co. v. Williams, 49 Ark. 492, 5 S. W. 883) that such legislation could not be sustained. It was construed to be an act imposing a [165 U.S. 150, 163] penalty for a failure to abide by an award of appraisers, and contesting its validity in the courts. It is worthy of note that in the same volume is found a decision by the same court, sustaining a statute allowing an attorney fee in actions for the recovery of overcharges by railroads (Dow v. Beidelman, 49 Ark. 455, 5 S. W. 718), but the statute had prescribed the rates of charge for the carriage of passengers by railroads, had forbidden an overcharge, and it was as a penalty for failure to comply with such police regulations that the allowance of an attorney regulations that the allowance of an attorney Brown, 14 Wash. 155, 44 Pac. 149, in which, it appearing that

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there was no statutory obligation on railroad companies to fence their right of way, a statute allowing attorney fees in actions to recover damages for stock killed was declared to be unconstitutional; and Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. 1006, in which an act authorizing an attorney fee to be taxed in entering judgments for personal services was set aside. Besides these cases involving attorney fees are others in which legislation imposing special burdens on an individual or a class has been declared beyond the power of the legislature as against equality of right. In Railway Co. v. Wilson, 19 S. W. 910, the court of appeals of Texas held that a statute providing that, in the event of a railroad company's refusing to pay its indebtedness to an employ e within 20 days after demand, he could recover as damages 20 per cent. in addition to the amount due, was class legislation and unconstitutional. In the course of the opinion, after referring to those statutes allowing double damages for stock killed, the court observed: 'But when we consider the relations of railway companies to their own servants, both as to contracts of employment and payment, we find a field in which special legislation has no right ordinarily to enter, and in which railways stand on the same footing with all other corporations or persons.' In Railroad Co. v. Baty, 6 Neb. 37, there was presented for consideration a statute which gave to the owner oflive stock accidentally killed or destroyed on a railroad track [165 U.S. 150, 164] double its value, and it was held that the statute was void. Millett v. People, 117 Ill. 294, 7 N. E. 631, in which an act of the legislature requiring owners and operators of coal mines to weigh coal in a certain specified manner was held invalid as beyond the power of the legislature to single out certain individuals, and impose upon them burdens not imposed upon all. Frorerv. People, 141Ill.171, 31 N. E. 395, where an act which prohibited persons engaged in mining or manufacturing from keeping a store for furnishing supplies to their employees was held in conflict with the constitution. Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62, where a like ruling was made in respect to a statute requiring certain specified corporations to pay the wages of their employees weekly. Eden v. People, 161 Ill. 296, 43 N. E. 1108, which set aside a statute forbidding barbers, and barbers only, to keep open their shops or work at their trade on Sundays. Durkee v. City of Janesville, 28 Wis. 464, in which an act providing that no costs should be recovered against the city in an action commenced to set aside any assessment or tax deed, or to prevent the collection of taxes in said city, was held to conflict with the rule of equality in that suitors in all other cases were entitled to recover their costs; the court saying, on page 4 71, that: 'It is obvious there can be no certain remedy in the laws where the legislature may prescribe one rule for one suitor or class of suitors in the courts, and another for all others under like circumstances, or may discriminate between parties to the same suit, giving one most unjust pecuniary advantage over the other. Parties thus discriminated against would not obtain justice freely, and without being obliged to purchase it. To the extent of such discrimination they would be obliged to buy justice, and pay for it; thus making it a matter of purchase to those who could afford to pay, contrary to the letter and spirit of this provision.' City of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, in which a statute authorizing suits for injunction to be maintained in favor of certain parties under circumstances differing from those which obtained in respect to all other suits of a similar nature, was likewise held to be void. as discriminating and class legislation, in [165 U.S. 150, 165] violation of the spirit of the constitution, and contrary to public justice. In State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, the supreme court of appeals of West Virginia held unconstitutional a statute which prohibited persons engaged in mining and manufacturing from issuing for the payment of labor any order or paper except such as was specified in the act; and on the same day, in State v. Fire Creek Coal & Coke Co., 33 W. Va. 188, 10 S. E. 288, the same court also set aside another statute which prohibited persons and corporations engaged in mining and manufacturing, and interested in selling merchandise and supplies, from selling any merchandise or supplies to their employees at a greater per cent. of profit than they sell to others not employed by them. In Park v. Press Co., 72 Mich.

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s6o, 40 N. W. 731, it was held that an act limiting the recovery in suits brought for libel in certain cases to actual damages, as defined in the act, was not within the scope of constitutional legislation. In Pearson v. City of Portland, 69 Me. 278, a statute, which provided that no damages for injury to person or property caused by a defect in the highway, could be recovered of any city or town by any person who, at the time the damage was done, was a resident of any country where damage done under similar circumstances was not by the laws of that country recoverable, was held to conflict with the equality clause of the fourteenth amendment of the United States constitution. It must not be understood that by citing we indorse all these decisions. Our purpose is rather to show the

extent to which the courts of the various states have gone in enforcing the constitutional obligation of equal protection. Other cases of a similar character may be found in the reports, but a mere accumulation of authorities is oflittle value. It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground,-some difference which bears a just and proper relation to the attempted classification,- [16s U.S. 1so, 166] and is not a mere arbitrary selection. Tested by these principles, the statute in controversy cannot be sustained. The judgment of the supreme court of Texas is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Mr. Justice GRAY, with whom concurred Mr. Chief Justice FULLER and Mr. Justice WHITE, dissenting. The CHIEF JUSTICE, Mr. JUSTICE WHITE, and myself are unable to concur in this judgment. The grounds of our dissent may be briefly stated. Costs in civil actions at law are the creature of statute. From early times, there have been statutes making different rules as to costs, according to the nature of the issue, and the amount involved; and sometimes allowing costs to the prevailing party when plaintiff, and not when defendant. The whole matter of costs, including the party to or against whom they may be given, the items or sums to be allowed, and the right to costs as depending upon the nature of the suit, upon the amount or value of the thing sued for or recovered, or upon other circumstances, is, and always has been, within the regulation and control of the legislature, exercising its discretionary power, not oppressively to either party, but as the best interests of the litigants and of the public may appear to it to demand. Bae. Abr. 'Costs,' passim; Postan v. Stanway, s East, 261; Green v. Liter, 8 Cranch, 229, 242; Kneass v. Bank, 4 Wash. C. C. 106, Fed. Cas. No. 7,876; Lowe v. Kansas, 163 U.S. 81 , 16 Sup. Ct. 1031. The statute of the state of Texas, now in question, does but enact that any person having a valid bona fide claim, not exceeding $so, against a railroad corporation, for personal services or damages, or for overcharges on freight, or for destruction or injury of stock by its trains, and presenting the claim, verified by his affidavit, to the corporation, and, if it is not paid within 30 days, suing thereon in the proper court, and finally obtaining judgment for the full amount thereof in that court, or in any court to which the suit may be appealed, shall be entitled to recover, in addition to other [16s U.S. 1so, 167] costs, a reasonable attorney's fee (if he has employed an attorney) not exceeding $10, to be assessed and awarded by the cm.~rt or jury trying the issue. Gen. Laws Tex. 1889, p. 131, c. 107; Supp. Sayles' Rev. Civ. St. p. 768, art. 4266a. In other words, if an nonest claim, of not more than $so, and coming within one of those classes of small claims which most commonly arise between individuals and railroad corporations, is not promptly paid when presented under oath, and the claimant is thereby compelled to resort to a suit, the corporation, if ultimately cast in the suit, must pay to the successful plaintiff a very moderate attorney's fee, as part of the

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costs of the litigation. The legislature of a state must be presumed to have acted from lawful motives, unless the contrary appears upon the face of the statute. If, for instance, the legislature of Texas was satisfied, from observation and experience, that railroad corporations within the state were accustomed, beyond other corporations or persons, to unconscionably resist the payment of such petty claims, with the object of exhausting the patience and the means of the claimants, by prolonged litigation, and perhaps repeated appeals, railroad corporations alone might well be required, when ultimately defeated in a suit upon such a claim, to pay a moderate attorney's fee, as a just, though often inadequate, contribution to the expenses to which they had put the plaintiff in establishing a rightful demand. Whether such a state of things as above supposed did in fact exist, and whether, for that or other reasons, sound policy required the allowance of such a fee to either party, or to the plaintiff only, were questions to be determined by the legislature, when dealing with the subject of costs, except in so far as it saw fit to commit the matter to the decision of the courts. The constitutionality of statutes allowing plaintiffs only to recover an attorney's fee, as part of the judgment, in particular classes of actions selected by the legislature, appears to have been upheld by the courts of most of the states in which it has been challenged. Railway Co . .v. Mower, 16 Kan. 573, 582; [165 U.S. 150, 168) Railroad Co. v. Yanz, Id. 583; Railway Co. v. Duggan, 109 Ill. 537; Vogel v. Pekoe, 157 Ill. 339, 42 N. E. 386; Dow v. Beidelman, 49 Ark. 455, 5 S. W. 718; Perkins v. Railway Co., 103 Mo. 52, 15 S. W. 320; Railway Co. v. Dey, 82 Iowa, 312, 340, 48 N. W. 98; Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280; Railway Co. v. Ellis, 87Tex.19, 26 S. W. 985; Cameron v. Railway Co., 63 Minn. 384, 65 N. W. 652. It is to be regretted that so important a precedent as this case may afford for interference by the national

judiciary with the legislation of the several states on little questions of costs should be established upon argument ex parte in behalf of the railroad corporation, without any argument for the original plaintiff. But it is hardly surprising that the owner of a claim for $so only, having been compelled to follow up, through all the courts of the state, the contest over this $10 fee, should at last have become discouraged, and unwilling to undergo the expense of employing counsel to maintain his rights before this court.

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General Discussion

MISSOURI PAC. RY.CO. v. STATE OF KANSAS, 248 U.S. 276 (1919) Missouri Pac. Ry. Co. v. State of Kansas, 248 U.S. 276 (1919) (hereafter Missouri) delivered by Edward Douglass White, Jr. (Chief Justice 1910-21, Associate Justice 1894-1910, United States Senator 1891-94), was the first in a series of rulings extending nearly two decades which ultimately defined nearly all questions involving Article V of the Constitution. These series of rulings primarily occurred because of political opposition to the adoption of two constitutional amendments: the 18th Amendment White (outlawing consumption of liquor in the United States and the 21st Amendment (repealing the 18th Amendment). In nearly all cases brought before the Supreme Court raising objections either to liquor being prohibited or consumption liquor being allowed, the parties in question raised various issues of procedure vis-à-vis Article V. While all of the rulings dealt with Congress, in no ruling did the Court exclude the convention portion of Article V from its determination. Therefore given the circumstance of the absence of a reasonable basis upon which to exclude the convention process from the Court rulings expressed in Gulf, coupled with the fact the Court, neither by implication nor expression, excluded the convention from the effects of its rulings, it is reasonable to state these rulings equally apply to Congress and the convention. Chief Justice White summarized the issue before the Court, “The proposition is this, that as the provision of the Constitution exacting a two-thirds vote of each house to pass a bill over a veto means a two-thirds vote, not of a quorum of each house, but of all the members of the body, the Webb-Kenyon Act was never enacted into law, because after its veto by the President it receive in the senate only a two-thirds vote of the Senators present (a quorum), which was less than two-thirds of all the members elected to and entitled to sit in that body.” While the issue before the Court (quorum of members versus full member needed to overturn a presidential veto) does not relate to Article V, Chief Justice White primarily based his opinion on that portion of the Constitution and wrote, “The identify between the provision of article 5 of the Constitution, giving the power by a two-thirds vote to submit amendments, and the requirements we are considering as to the two-thirds vote necessary to override a veto makes the practice as to the one applicable to the other.”

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The Court first cited the actions of Congress in proposing the first ten amendments to the Constitution “embodying a bill of rights.” The Court noted that in both House and Senate the record indicating approval of the proposed amendments was based on a two-thirds vote of the members “present concurring therein.” Chief Justice White then said, “When it is considered that the chairman of the committee in charge of the amendments for the House was Mr. Madison, and that both branches of Congress contained many members who had participated in the deliberations of the convention or in the proceedings which led to the ratification of the Constitution, and that the whole subject was necessarily vividly present in the minds of those who deal with it, the convincing effect of the action cannot be overstated.” Given the endorsement of the Supreme Court regarding Mr. Madison and his knowledge of the amendment process, Madison’s remarks as to the obligation of a convention call by Congress and that such call shall not involve debate, vote or committee the convincing effect of that action also cannot be overstated. Thus, if Madison’s (and others in Congress) remarks require Congress to call a convention on such basis, their interpretation of Article V for that portion of the article must have as equal effect and bearing as does their interpretation and action regarding amendment proposal, quorum and two-thirds vote of Congress. As quoted by Chief Justice White, “The settled rule, however, was so clearly and aptly stated by the Speaker, Mr. Reed, in the House, on the passage in 1898 of the amendment to the Constitution providing for the election of senators by vote of the people, that we quote it. The ruling was made under these circumstances: When the vote was announced, yeas, 184, and nays, 11, in reply to an inquiry from the floor as to whether such vote was a compliance with the two-thirds rule fixed by the Constitution, as it did not constitute a two-thirds vote of all the members elected, the speaker said: “The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says ‘two-thirds of both houses.’ What constitutes a house? A quorum of the membership, a majority, one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before the House. Among the business that comes before the House is the reconsideration of a bill which has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the Houses is present the House is constituted, and

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two-thirds of those voting are sufficient in order to accomplish the object. …’ 5 Hinds’ Precedents of the House of Representatives, pp.1009-1010.” Thus Missouri establishes several important rules of amendment proposal for Congress and the convention. First, for any business to be conducted, a quorum of the membership (“one-half and one more”) must be present. Second, in order to propose an amendment, a two-thirds vote of the membership present (assuming a quorum) is required. From these two rules is derived other rules. The third rule concerns the one question remaining as to the composition of the convention: upon what basis shall the count of “membership” for quorum or vote on amendment be determined? Shall the quorum be based on representation of population (district) or representation by state? The answer Mr. President is not as difficult as might be first imagined. It again relates to the Gulf decision which can be summed as, where there is no reason for discrimination, there is no discrimination. The answer begins with the most basic of observations. Each member of Congress has one vote. The reason for this limitation is to prevent any one member of Congress from having more authority on any question before Congress than any other member of Congress. Thus, all elected representatives of Congress whether they are in the House or Senate, represent those who elected them equally in that any power of vote that representative of the people shall exercise is equal to all other members of the Congress. Hence, the principle of equally extends to electorate as well as the member. However the electorates which choose a member of the House of Representatives and choose a member of the Senate are not identical. In the selection of a House member, a portion of a state (in most cases) chooses a representative for that portion of the population called a district. In the case of the Senate however without exception the entire population of the state selects its representative(s) for that body. Thus two distinct types of electoral representation exist in Congress. In Congress this distinction, in regards to proposing amendments is of little significance as each House of Congress represents one category of electoral selection—district or state. The 17th Amendment, while changing the method of selection of a senator from appointment by state legislature to electorate did not alter the fact that once a representative was selected, he still represented the state as a whole as opposed to representing a portion of it as does a member of the House. However, Article V mandates that Congress call “a” convention proposing amendments—singular. Thus, the Constitution mandates that any representation must be held within a single convention, that is, a single house rather than in two houses as is the case with Congress.

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There is no basis of argument that portion of population in a particular state is unequal in rights to the rest of the population of that same state or that a state population of one state is unequal in rights to that of another state. How, in light of Gulf, can it be argued that because of mass of numbers, a citizen of California shall have more “say” in the fate of an amendment proposal at the convention than a citizen from Rhode Island? Is there any reasonable basis for such discrimination simply because more citizens reside in one state than another? How does this unequal distribution of population and hence unequal representation at convention translate that one state shall carry more weight in the decision of an amendment than another which, if ratified, shall equally effect all? Moreover how is such discrimination substantiated in light of the fact that in ratification each state is equal in its effect regardless of population. Hence, it is well established by the terms of Article V that in matter of amendment, states are equal. Equal treatment for the states and the people comprising those states cannot be ignored. State legislatures, authorized by the Constitution, propose the applications which cause Congress to call the convention. The two thirds requirement of Article V means each state is permitted one “vote” or application to cause a convention call. No application can be preferred over another meaning the purpose as well as the contents must be treated equally. Ratification of proposed amendments from the convention is determined by state action either in legislature or convention. Each state casts one ratification “vote” and no vote may be preferred over another meaning all ratification votes at treated equally. These two examples demonstrate an irrefutable fact Mr. President. The states are integral part of the convention process and therefore cannot be discriminated against by denying them equal representation at the convention. If both application and ratification for the states are equal in treatment, that is, precisely identical in both affect and effect as all other sister states, how can it be argued that a state is equal in one portion of the amendment process but not equal in another part of the same process when no means of discrimination exists in the process to permit such discrimination? The Gulf makes it clear no such discrimination is permitted. The Constitution, as well as history, provides solution. In 1787, the various states sent representatives to the 1787 Federal Convention in Philadelphia. There the delegates determined that as all states were equal, each state delegation should vote as a unit and have a single vote. This state vote concept was extended first in Article II, § 1(3) and later in the 12th Amendment both of which required in the process of selecting a president if the Electoral College were tied, that the House of Representatives shall “be taken by States the Representation from each State having one Vote…” The members of the House are therefore transformed into state delegations and these delegations become an artificial person in the House to accomplish a constitutional task.

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As stated in Gulf, discrimination cannot be allowed against a group any more than it can be permitted against individuals comprising that group. Consequently, the artificial persons in Congress must be treated equally under the law while engaging in their constitutional business. The precedent that members chosen by the electorate to perform a constitutional task may be comprised into artificial persons to accomplish that task is well-established as it was ratified as the 12th Amendment to the Constitution meaning ultimately it received two-thirds support from Congress and three-fourths support from the states. It is also established in the formation of the Constitution itself, people such as Madison to whom the Court placed great reliance, relied on the creation of these artificial persons in order to allow for equal representation by all attendees. Based on these two precedents, the mandated equality for both electorate and state and the fact no reasonable basis exists to other discriminate, it is clear a convention must be composed of elected delegates who then are grouped into artificial persons known as state delegations. In this manner both the populace and the states are equally represented. As there is no basis to assert any citizen, without cause can be discriminated over another, so too must this rule apply to states. Hence, no state may be discriminated over another state nor may the procedures of a convention discriminate against Congress. The Constitution provides no means whereby such discrimination is justified. So each state and therefore each state delegation must be equal meaning each state receives one vote on any question before the house. As Congress is limited to passage of an amendment by twothirds vote (assuming a quorum in each house) so must the convention be equally limited. Hence, for an amendment to be proposed in convention, twothirds vote, or 34 state delegations, each delegation representing one state, must approve the proposal, assuming a quorum of 26 state delegations present. Moreover, in order to be consistent with parliamentary rules of procedure and the requirements of equality, it is clear that any motion made by any delegate within the artificial person cannot be seconded by another delegate within that same state delegation or person as this would effectively be the same person seconding his own motion. The motion must receive a second from a member of another state delegation. If each state delegation is viewed as a human body, and parliamentary rules dictate any motion must first be made by one member then seconded by another, it’s clear this process must involve two independent bodies, that is, two humans, artificial or otherwise. If a delegate within a delegation proposed a motion and another delegate within that same delegation seconded it, it would be the same as a single member proposing and seconding his own motion which parliamentary rules do not allow.

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U.S. Supreme Court MISSOURI PAC. RY. CO. v. STATE OF KANSAS, 248 U.S. 276 (1919) 248 U.S. 276

MISSOURI PAC. RY. CO. v. STATE OF KANSAS. No.14. Submitted Nov. 13, 1918. Decided Jan. 7, 1919. Messrs. William P. Waggener and B. P. Waggener, both of Atchison, Kan., for plaintiff in error. [248 U.S. 276, 278] Messrs. James P. Coleman, of Topeka, Kan., and Wayne B. Wheeler, of Washington, D. C., for the State of Kansas. Mr. Chief Justice WHITE delivered the opinion of the Court. To avoid penalties sought to be imposed upon it for illegally carrying intoxicating liquors from another state into Kansas, the defendant railroad, plaintiff in error, asserted as follows: (1) That the state law was void as an attempt by the state to regulate commerce and thus usurp the authority alone possessed by Congress; (2) that if such result was sought to be avoided because of power seemingly conferred upon the state by the act of Congress known as the Webb-Kenyon Law (Act March 1, 1913, c. 90, 37 Stat. 699 [Comp. St. 1916, 8739]), such act was void for repugnancy to the Constitution of the United States because in excess of the power of Congress to regulate commerce and as a usurpation of rights reserved by the Constitution to the [248 U.S. 276, 279] states; (3) because, even ifthe Webb-Kenyon Law was held not to be repugnant to the Constitution for the reasons stated, nevertheless, that assumed law afforded no basis for the exertion of the state power in question, because it had never been enacted by Congress conformably to the Constitution, and therefore, in legal intendment, must be treated as nonexisting. It is conceded that the ruling of this court, sustaining the Webb- Kenyon Law as a valid exercise by

Congress of its power to regulate commerce (Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311, 325 , 37 S. Sup. Ct. 180, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845), disposes of the first two contentions and leaves only the third for consideration. In fact, in argument it is admitted that such

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question alone is relied upon. The proposition is this, that as the provision of the Constitution exacting a two-thirds vote of each house to pass a bill over a veto means a two-thirds vote, not of a quorum of each house, but of all the members of the body, the Webb-Kenyon Act was never enacted into law, because after its veto by the President it received in the Senate only a two-thirds vote of the Senators present (a quorum), which was less than two-thirds of all the members elected to and entitled to sit in that body. Granting the premise of fact as to what the face of the journal disclosed, and assuming for the sake of the argument (Flint v. Stone Tracy Co., 220 U.S. 107, 143 , 31 S. Sup. Ct. 342, Ann. Cas. 1912B, 1312; Raineyv. United States, 232 U.S. 310, 317 , 34 S. Sup. Ct. 429) that the resulting question would be justiciable, we might adversely dispose of it by merely referring to the practice to the contrary which has prevailed from the beginning. In view, however, of the importance of the subject, and with the purpose not to leave unnoticed the grave misconceptions involved in the arguments by which the proposition relied upon is sought to be supported, we come briefly to dispose of the subject. The proposition concerns clause 2 of section 7 of article 1 of [248 U.S. 276, 280] the Constitution, providing that in case a bill passed by Congress is disapproved by the President-'... he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two- thirds of that house, it shall become a law... .' The extent of the vote exacted being certain, the question depends upon the significance of the words 'that house'; that is, whether those words relate to the two houses by which the bill was passed and upon which full legislative power is conferred by the Constitution in case of the presence of a quorum (a majority of the members of each house; section 5, art. 1); or whether they refer to a body which must be assumed to embrace, not a majority, but all its members for the purpose of estimating the two- thirds vote required. As the context leaves no doubt that the provision was dealing with the two houses as organized and entitled to exert legislative power, it follows that to state the contention is to adversely dispose of it. But, in addition, the erroneous assumption upon which the contention proceeds is plainly demonstrated by a consideration of the course of proceedings in the convention which framed the Constitution, since, as pointed out by Curtis (History of the Constitution, vol. 2, p. 267 note), it appears from those proceedings that the veto provision as originally offered was changed into the form in which it now stands after the adoption of the article fixing the quorum of the two houses for the purpose of exerting legislative power and with the object of giving the power to override a veto to the bodies as thus organized. A further confirmation of this view is afforded by the fact that there is no indication in the Constitutions and laws [248 U.S. 276, 281] of the several states existing before the Constitution of the United States was framed that it was deemed that the legislative body which had power to pass a bill over a veto was any other than the legislative body organized conformably to law for the purpose of enacting legislation, and hence that the majority fixed as necessary to override a veto was the required majority of the body in whom the power to legislate was lodged. Indeed, the absolute identity between the body having authority to pass legislation and the body having the power in case of a veto to override it was clearly shown by the Constitution of New York, since that Constitution, in providing for the exercise of the right to veto by the council, directed that the objections to the bill be transmitted for reconsideration to the Senate or House in which it originated. 'but if, after such reconsideration, two-thirds of the Senate or House of Assembly shall, notwithstanding such objections, agree to pass the same, it shall be ... sent to the other branch of the

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Legislature, where it shall also be reconsidered, and if approved by two-thirds of the members, present, shall be a law,' thus identifying the bodies embraced by the words 'Senate' and 'House' and definitely fixing the two-thirds majority required in each as two-thirds of the members present. The identity between the provision of article 5 of the Constitution, giving the power by a two-thirds vote to submit amendments, and the requirements we are considering as to the two-thirds vote necessary to override a veto makes the practice as to the one applicable to the other. At the first session of the first Congress in 1789 a consideration of the provision authorizing the submission of amendments necessarily arose in the submission by Congress of the First ten amendments to the Constitution embodying a bill of rights. They were all adopted and submitted by each house organized as a legislative body [248 U.S. 276, 282] pursuant to the Constitution, by less that the vote which would have been necessary had the constitutional provision been given the significance now attributed to it. Indeed, the resolutions by which the action of the two houses was recorded demonstrate that they were formulated with the purpose of refuting the contention now made. The Senate Record was as follows: 'Resolved: That the Senate do concur in the resolve of the House of Representatives on 'articles to be proposed to the Legislatures of the states as amendments to the Constitution of the United States,' with amendments; two-thirds of the Senators present concurring therein.' 1st Cong. (1st Sess.) September 9, 1789, Senate Journal, 77. And the course of action in the House and the record made in that body is shown by a message from the House to the Senate which was spread on the Senate Journal as follows: 'A message from the House of Representatives. Mr. Beckley, their clerk, brought up a resolve of the House of this date, to agree to the ... amendments proposed by the Senate to 'Articles of amendment to be proposed to the Legislatures of the several states as amendments to the Constitution of the United States,' ... ; two-thirds of the members present concurring on each vote ... .' 1st Cong. (1st Sess.) Sept. 21, 1789, Senate Journal, 83. When it is considered that the chairman of the committee in charge of the amendments for the House was Mr. Madison, and that both branches of Congress contained many members who had participated in the deliberations of the convention or in the proceedings which led to the ratification of the Constitution, and that the whole subject was necessarily vividly present in the minds of those who dealt with it, the convincing effect of the action cannot be overstated. [248 U.S. 276, 283] But this is not all, for the Journal of the Senate contains further evidence that the character of the two-thirds vote exacted by the Constitution (that is, two-thirds of a quorum) could not have been overlooked, since that Journal shows that at the very time the amendments just referred to were under consideration there were also pending other proposed amendments, dealing with the treaty and lawmaking power. Those concerning the treatymaking power provided that a two-thirds vote of all the members (instead of that proportion of a quorum) should be necessary to ratify a treaty dealing with enumerated subjects, and exacted even a larger proportionate vote of all the members in order to ratify a treaty dealing with other mentioned subjects; and those dealing with the lawmaking power required that a two-thirds (instead of a majority) vote of a quorum should be necessary to pass a law concerning specified subjects. The construction which was thus given to the Constitution in dealing with a matter of such vast importance, and which was necessarily sanctioned by the states and all the people, has governed as to every amendment to the Constitution submitted from that day to this. This is not disputed, and we need

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not stop to refer to the precedents demonstrating its accuracy. The settled rule, however, was so clearly and aptly stated by the Speaker, Mr. Reed, in the House, on the passage in 1898 of the amendment to the Constitution providing for the election of Senators by vote of the people, that we quote it. The ruling was made under these circumstances: When the vote was announced, yeas, 184, and nays,

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in reply to an

inquiry from the floor as to whether such vote was a compliance with the two-thirds rule fixed by the Constitution, as it did not constitute a two-thirds vote of all the members elected, the speaker said: 'The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision [248 U.S. 276, 284] of the Constitution says 'two-thirds of both houses.' What constitutes a house? A quorum of the membership, a majority, one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before the House. Among the business that comes before the House is the reconsideration of a bill which has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the House is present the House is constituted, and two- thirds of those voting are sufficient in order to accomplish the object... .' 5 Hinds' Precedents of the House of Representatives, pp. 1009-1010. This occurrence demonstrates that there is no ground for saying that the adherence to the practice settled in both houses in 1789 resulted from a mere blind application of an existing rule, a conclusion which is also clearly manifested, as to the Senate, by proceedings in that body in 1861 where, on the passage of a pending amendment to the Constitution, as the result of an inquiry made by Mr. Trumbull relative to the vote required to pass it, it was determined by the Senate by a vote of 33 to 1 that two- thirds of a quorum only was essential. 36 Cong. (2d Sess.) March 2, 1861, Senate Journal, 383. In consequence of the identity in principle between the rule applicable to amendments to the Constitution and that controlling in passing a bill over a veto, the rule of two-thirds of a quorum has been universally applied as to the two-thirds vote essential to pass a bill over a veto. In passing from the subject, however, we again direct attention to the fact that in both cases the continued application of the rule was the result of no mere formal following of what had gone before but came from conviction expressed, after deliberation, as to its correctness by many illustrious men. While there is no decision of this court covering the subject, [248 U.S. 276, 285] in the state courts oflast resort the question has arisen and been passed upon, resulting in every case in the recognition of the principle that, in the absence of an express command to the contrary, the two-thirds vote of the house required to pass a bill over a veto is the two-thirds of a quorum of the body as empowered to perform other legislative duties. Warehouse v. Mclntoch, 1 Ala. App. 407, 56 South. 102; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636; Southworth v. Railroad, 2 Mich. 287; Smith v. Jennings, 67 S. C. 324, 45 S. E. 821; Green v. Weller, 32 Miss. 650. We say that the decisions have been without difference, for the insistence that the ruling in Minnesota ex rel. Eastland v. Gould, 31 Minn. 189, 17 N. W. 276, is to the contrary is a wholly mistaken one, since the decision in that case was that, as the state Constitution required a vote of the majority of all the members elected to the house to pass a law, the two- thirds vote necessary to override a veto was a two-thirds vote of the same body. Any further consideration of the subject is unnecessary, and our order must be, and is, Judgment affirmed.

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HAWKE v. SMITH, 253 U.S. 221 (1920) William Rufus Day, (Associate Justice 1903-22, Secretary of State, 1898, Judge, U.S. Court of Appeals, Sixth Circuit, 1899-1903), delivered one of the most sweeping Court opinions regarding Article V, Hawke v Smith, 253 U.S. 221 (1920) (hereafter Hawke). This decision resolved several questions about Article V. Primary among these questions was the Court’s finding that states operate Day under the authority of the federal Constitution not their own state constitutions when involved in the amendatory process. Thus, an Article V Convention is a federal process, not a state process. Mr. President, many theories to be discussed later in this Appendix all advocate “state” control of the convention meaning state legislatures or political groups which control them, control the convention. All these “alternative” theories ignore Hawke and several other Supreme Court rulings to arrive at their one common proposition: state legislatures, by authority of their state constitutions, possess the right to pre-determine all aspects of a convention— including delegate selection, agenda and amendment proposition. In their theories, a convention is no more than a figurehead event with all real power held by the state legislatures (or special interest groups controlling the legislatures) rather than the people. Hawke rejected all these theories nearly a century ago. Hawke is the first of several Court decisions describing the amendment proposal process based on the actual language of Article V which the Court quotes, “The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments…” In describing this provision of the Constitution, the Court said, “The Constitution of the United States was ordained by the people, and, when duly ratified, it became the Constitution of the people of the United States. [Emphasis added]. McCulloch v. Maryland, 4 Wheat. 316, 402 (hereafter McCulloch). The states surrendered to the general government the powers specifically conferred upon the nation, and the Constitution and the laws of the United States are the supreme law of the land.” Having concluded the Constitution is a constitution of the people (not the states) and is supreme law of the land, the Court then addressed the specific issue of Article V. The Court said, “This article [Article V] makes provision for the proposal of amendments either by two-thirds of both houses of Congress, or

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on application of the Legislatures of two-thirds of the states; thus securing deliberation and consideration before any change can be proposed. The proposed change can only become effective by the ratification of the Legislatures of three-fourths of the states, or by conventions in a like number of states. The method of ratification is left to the choice of Congress. Both methods of ratification, by Legislatures or conventions, call for action by deliberative assemblages representative of the people, which it was assumed would voice the will of the people.” The Court then stated, “The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three-fourths of the states, or conventions in a like number of states.” … “The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.” The Court then dismissed the action of the state of Ohio which had permitted ratification of a proposed amendment by use of a state referendum saying, “…ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment.” … “It is true that the power to legislate in the enactment of the laws of a state is derived from the people of the state. But the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution. The act of ratification by the state derives its authority from the federal Constitution to which the state and its people have alike assented.” Mr. President, Hawke makes it clear Congress is bound to the text of the Constitution. It can take no action contrary to the textual language of Article V. Thus, when the Constitution demands Congress call a convention it has no more choice regarding a call than it, or the states, have regarding the mode of ratification—Congress and states are limited to the modes of amendment described in Article V with no variance of any description permitted. In the case of a convention call, the language is therefore as peremptory as the choice of mode of ratification. The Court describes conventions as “deliberative assemblages representative of the people which it was “assumed would voice the will of the people.” The Court gave no reason for discrimination between a

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ratification convention being a “deliberative assemblage representative of the people and an Article V Convention having the same characteristics. Finally, as mentioned earlier, Congress has, by passage of appropriate law, accepted the premise an Article V Convention shall be a “deliberative assemblage representative of the people” with the obvious intent of voicing “the will of the people.” Thus both court ruling and federal law preclude tyrannical control of an Article V Convention in which state legislatures eliminate the people entirely from the amendment process. Moreover the Court did not provide any basis to presume its finding as to the source of authority for ratification (the federal Constitution) did not equally apply to amendment proposal. The stark nature of the question before the Court—whether state action can control part of the amendment process for the federal Constitution—required the Court to describe any variance in its utter rejection of such state control if such variance was permitted. If, for example, state control of an Article V Convention based on the authority of state constitutions were permissible clearly the Court would be obligated to state this exception. Instead the Court states the text of Article V is “plain” using the word in such context as to obviously mean no further explanation is required on the part of the Court. Therefore the states operate at all times under the authority of the federal Constitution which expressly describes the limits of state authority and in the case of amendment proposal limits the states to submission of application for a convention call by Congress with the consequent convention making the actual proposal of amendments. Further, the text of Article V, together with its determination in Hawke make it clear the call is obligatory on the part of Congress and based exclusively on a numeric count of applying states with no terms or conditions. As previously noted in this Appendix, this interpretation has already been officially expressed by Congress.

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U.S. Supreme Court HAWKEv. SMITH, 253 U.S. 221 (1920) 253 U.S. 221

HAWKE v.

SMITH, Secretary of State of Ohio. No. 582.

Argued April 23, 1920. Decided June 1, 1920. [253 U.S. 221, 222) Mr. J. Frank Hanly, of Indianapolis, Ind., for plaintiff in error. Mr. Lawrence Maxwell, of Cincinnati, Ohio, for defendant in error. [253 U.S. 221, 224) Mr. Justice DAY delivered the opinion of the Court. Plaintiff in error (plaintiff below) filed a petition for an injunction in the court of common pleas of Franklin county, Ohio, seeking to enjoin the secretary of state of Ohio from spending the public money in preparing and printing forms of ballot for submission of a referendum to the electors of that state on the question of the ratification which the General Assembly had made of the proposed Eighteenth Amendment to the federal Constitution. A demurrer to the petition was sustained in the court of common pleas. Its judgment was affirmed by the Court of Appeals of Franklin County, which judgment was affirmed by the Supreme Court of Ohio, and the case was brought here. A joint resolution proposing to the states this amendment to the Constitution of the United States was adopted on the 3d day of December, 1917. 40 Stat. 1050; The amendment prohibits the manufacture, sale or transportation of [253 U.S. 221, 225) intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territory subject to the jurisdiction thereof for beverage purposes. The several states were given concurrent power to enforce the amendment by appropriate legislation. The resolution provided that the amendment should be inoperative unless ratified as an amendment of the Constitution by the Legislatures of the several states, as provide in the Constitution,

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within seven years from the date of the submission thereof to the states. The Senate and House of Representatives of the state of Ohio adopted a resolution ratifying the proposed amendment by the General Assembly of the state of Ohio, and ordered that certified copies of the joint resolution of ratification be forwarded by the Governor to the Secretary of State at Washington and to the presiding officer of each House of Congress. This resolution was adopted on January 7, 1919; on January 27, 1919, the Governor of Ohio complied with the resolution. On january 29, 1919, the Secretary of State of the United States proclaimed the ratification of the amendment, naming 36 states as having ratified the same, among them the state of Ohio. The question for our consideration is: Whether the provision of the Ohio Constitution, adopted at the general election, November, 1918, extending the referendum to the ratification by the General Assembly of proposed amendments to the federal Constitution is in conflict with article 5 of the Constitution of the United States. The amendment of 1918 provides: 'The people also reserve to themselves the legislative power of the referendum on the action of the General Assembly ratifying any proposed amendment to the Constitution of the United States.' Article 5 of the federal Constitution provides: 'The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments [253 U.S. 221, 226] to this Constitution, or, on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.' The Constitution of the United States was ordained by the people, and, when duly ratified, it became the Constitution of the people of the United States. McCulloch v. Maryland, 4 Wheat. 316, 402. The states surrendered to the general government the powers specifically conferred upon the nation, and the Constitution and the laws of the United States are the supreme law of the land. The framers of the Constitution realized that it might in the progress of time and the development of new conditions require changes, and they intended to provide an orderly manner in which these could be accomplished; to that end they adopted the fifth article. This article makes provision for the proposal of amendments either by two-thirds of both houses of Congress, or on application of the Legislatures of two-thirds of the states; thus securing deliberation and consideration before any change can be proposed. The proposed change can only become effective by the ratification of the Legislatures of three- fourths of the states, or by conventions in a like number of states. The method of ratification is left to the choice of Congress. Both methods of ratification, by Legislatures or conventions, call for [253 U.S. 221, 227] action by deliberative assemblages representative of the people, which it was assumed would voice the will of the people. The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three-fourths of the states, or conventions in a like number of states. Dodge v. Woolsey, 18 How. 331, 348. The framers of

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the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed. All of the amendments to the Constitution have been submitted with a requirement for legislative ratification; by this method all of them have been adopted. The only question really for determination is: What did the framers of the Constitution mean in requiring ratification by 'legislatures'? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation. A Legislature was then the representative body which made the laws of the people. The term is often used in the Constitution with this evident meaning. Article 1, section 2, prescribes the qualifications of electors of Congressmen as those 'requisite for electors of the most numerous branch of the state Legislature.' Article 1, section 3, provided that Senators shall be chosen in each state by the Legislature thereof, and this was the method of choosing senators until the adoption of the Seventeenth Amendment, which made [253 U.S. 221, 228] provision for the election of Senators by vote of the people, the electors to have the qualifications requisite for electors of the most numerous branch of the state Legislature. That Congress and the states understood that this election by the people was entirely distinct from legislative action is shown by the provision of the amendment giving the Legislature of any state the power to authorize the executive to make temporary appointments until the people shall fill the vacancies by election. It was never suggested, so far as we are aware, that the purpose of making the office of Senator elective by the people could be accomplished by a referendum vote. The necessity of the amendment to accomplish the purpose of popular election is shown in the adoption of the amendment. In article 4 the United States is required to protect every state against domestic violence upon application of the Legislature, or of the executive when the Legislature cannot be convened. Article 6 requires the members of the several Legislatures to be bound by oath, or affirmation, to support the Constitution of the United States. By article 1, section 8, Congress is given exclusive jurisdiction over all places purchased by the consent of the Legislature of the state in which the same shall be. Article 4, section 3, provides that no new states shall be carved out of old states without the consent of the Legislatures of the states concerned. There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the Legislatures of the states. When they intended that direct action by the people should be had they were no less accurate in the use of apt phraseology to carry out such purpose. The members of the House of Representatives were required to be chosen by the people of the several states. Article 1, section 2. The Constitution of Ohio in its present form, although [253 U.S. 221, 229] making provision for a referendum, vests the legislative power primarily in a General Assembly, consisting of a Senate and House of Representatives. Article 2, section 1, provides: 'The legislative power of the state shall be vested in a General Assembly consisting of a Senate and House of Representatives, but the people reserve to themselves the power to propose to the General Assembly laws and amendments to the Constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided.' The argument to support the power of the state to require the approval by the people of the state of the ratification of amendments to the federal Constitution through the e dium of a referendum rests upon the

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proposition that the federal Constitution requires ratification by the legislative action of the states through the medium provided at the time of the proposed approval of an amendment. This argument is fallacious in this-ratification by a state of a constitutional amendment is not an act oflegislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment. At an early day this court settled that the submission of a constitutional amendment did not require the action of the President. The question arose over the adoption of the Eleventh Amendment. Hollingsworth et al. v. Virginia, 3 Dall. 378. In that case is was contended that the amendment had not been proposed in the manner provided in the Constitution as an inspection of the original roll showed that it had never been submitted to the President for his approval in accordance with article 1, section 7, of the Constitution. The Attorney General answered that the case of amendments is a substantive act, unconnected with the ordinary business oflegislation, and not within the policy or terms of the Constitution investing [253 U.S. 221, 230] the President with a qualified negative on the acts and resolutions of Congress. In a footnote to this argument of the Attorney General, Justice Chase said: 'There can, surely, be no necessity to answer that argument. The negative of the President applies only to the ordinary cases oflegislation. He has nothing to do with the proposition, or adoption, of amendments to the Constitution.' The court by a unanimous judgment held that the amendment was constitutionally adopted. It is true that the power to legislate in the enactment of the laws of a state is derived from the people of the

state. But the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution. The act of ratification by the state derives its authority from the federal Constitution to which the state and its people have alike assented. This view of the amendment is confirmed in the history of its adoption found in 2 Watson on the Constitution, 1301 et seq. Any other view might lead to endless confusion in the manner of ratification of federal amendments. The choice of means of ratification was wisely withheld from conflicting action in the several states. But it is said this view runs counter to the decision of this court in Davis v. Hildebrant, 241 U.S. 565 , 36 S. Ct. 708. But that case is inapposite. It dealt with article 1 section 4, of the Constitution, which provides that the times, places, and manners of holding elections for Senators and Representatives in each state shall be_determined by the respective Legislatures thereof, but that Congress may at any time make or alter such regulations, except as to the place for choosing Senators. As shown in the opinion in that case, Congress had itself recognized the referendum as part of the legislative authority of the state for the purpose stated. It was held, affirming the judgment of the Supreme Court of Ohio, that the referendum provision of the state Constitution, when applied to a law redistricting the state with a [253 U.S. 221, 231] view to representation in Congress, was not unconstitutional. Article 1, section 4, plainly gives authority to the state to legislate within the limitations therein named. Such legislative action is entirely different from the requirement of the Constitution as to the expression of assent or dissent to a proposed amendment to the Constitution. In such expression no legislative action is authorized or required. It follows that the court erred in holding that the state had authority to require the submission of the ratification to a referendum under the state Constitution, and its judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.

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General Discussion

STATE OF RHODE ISLAND v. PALMER, 253 U.S. 350 (1920) NATIONAL PROHIBITION CASES Willis Van Devanter, (Associate Justice 1911-37), “announced the conclusions of the Court” in State of Rhode Island v Palmer, 253 U.S. 350 (1920) (hereafter Rhode Island) numerically listing the conclusions of the Court without providing any reasoning for them. This process of no “exposition of reasoning” in the majority opinion was soundly criticized by several of the justices at the time and has rarely been repeated.

Van Devanter

The decision simultaneously dealt with seven different cases all presenting different arguments about the validity of the recently ratified 18th Amendment. In order, relevant to an Article V Convention, the Court determined: (1) no declaration of necessity was required of the proposing body in proposing an amendment; (2) two-thirds adoption for proposing an amendment is based on two-thirds of the members present assuming a quorum and not on the full membership of the proposing body; (3) state referendums of state constitutions and statutes may not be applied in the ratification or rejection of a proposed amendment to the Constitution; (4) the regulation of alcoholic beverages (i.e., regulation of commerce) is within the power to amendment reserved by Article V of the Constitution; and (5) the amendment, having been proposed and ratified lawfully, is equal to all other clauses of the Constitution and must be given “effect the same as other provisions of that instrument.” The Court then discussed specific text in the 18th Amendment related to the conflict between the language of Section 1 giving clear authority of enforcement to Congress and Section 2, calling for “concurrent power” between Congress and the several states to “enforce this article by appropriate legislation. The Court determined that “concurrent power to enforce this article by appropriate legislation” does not enable Congress or the several states “to defeat or thwart the prohibition, but only to enforce it by appropriate means.” Further the Court found that “concurrent power do not mean joint power or require that legislation there under by Congress, to be effective, shall be approved or sanctioned by the several states; nor do they mean that the power to enforce is divided between Congress and the several states.” The Court concluded, “The power confided to Congress by that section, while not exclusive, is territorially coextensive with prohibition of the first section … and is in no way dependent on or affected by action or inaction on the part of the several states or any of them.”

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While concurring in the decision Chief Justice White expressed “regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state governments, and intimately concerning the welfare of the whole people, the Court has deemed it proper to state only ultimate conclusions without an exposition of the reasoning by which they have been reached.” White The chief justice expressed concern over the words “concurrent powers” used in the amendment which gave both states and Congress “concurrent” power to enforce this article by appropriate legislation” as he felt the Court’s ruling was conflicted saying, “But as the power of both Congress and the states in this instance is given by the Constitution in one and the same provision, I again find myself unable to accept the view urged because it ostensibly accepts the constitutional mandate as to the concurrence of the two powers and proceeds immediately by way of interpretation to destroy it by making one paramount over the other.”

The Chief Justice pointed out that while laws by Congress and the states are “not subject to conflict because their exertion is authorized within different areas, that is, by Congress with the field of federal authority, and by the states within the sphere of state, hence leaving the states free within their jurisdiction to determine separately for themselves what, within reasonable limits, is an intoxicating liquor, and to Congress the same right within the sphere of its jurisdiction. But the unsoundness of this more plausible contention seems to me at one exposed by directing attention to the fact that in a case where no state legislation was enacted there would be no prohibition, thus again frustrating the first section by a construction affixed to the second.” Stymied by the Gordian knot created by the conflict between the first and second sections of the amendment, White concluded, “Limiting the concurrent power to enforce given by the second section to the purposes which I have attributed to it, that is, to the subjects appropriate to execute the amendment as defined and sanctioned by Congress, I assume that it will not be denied that the effect of the grant of authority was to confer upon both Congress and the states power to do things which otherwise there would be no right to do. This being true, I submit that no reason exists for saying that a grant of concurrent power to Congress and the states to give effect to, that is, to carry out or enforce, the amendment as defined and sanctioned by Congress, should be interpreted to deprive Congress of the power to create, by definition and sanction, an enforceable amendment.”

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James Clark McReynolds, (Associate Justice 1914-41, Attorney General 1913-14), was succinct in his concurrence to the point of abstention. The associate justice said, “I do not dissent from the disposition of these causes as ordered by the Court, but confine my concurrence to that. It is impossible now to say with fair certainty what construction should be given to the Eighteen Amendment. McReynolds Because of the bewilderment which it creates, a multitude of questions will inevitably arise and demand solution here. In the circumstances I prefer to remain free to consider these questions when they arrive.” The dissents of associate justices Joseph McKenna, (Associate Justice 1898-1925, U.S. Attorney General 1897-98, Judge, Ninth Circuit Court of Appeals, 1892-1897, member of Congress 1885-92), and John Hessin Clark, (Associate Justice 191622), focused on an issue relative to an Article V Convention—the proposition that states and/or Clarke McKenna Congress have exclusive regulatory or concurrent regulatory powers over the convention. Thus instead of the convention being an independent constitutional body it is a dependent appendage of either the states or Congress or both. Because of this dependence either or both bodies have the right to regulate all operational aspects of the convention despite the fact no such regulatory power is expressed in Article V or permitted by Congress vis-à-vis the states or the states vis-à-vis Congress. Examples of operational control includes delegate selection with no input from the people, pre-determination of convention agenda, appointment of officers, approval of all proposed amendment language and veto of any proposal either directly or by means of refusal to send a proposed amendment for ratification unless first approved by Congress. In his dissent Justice McKenna discussed “the elemental rule of construction that in the exposition of statutes and constitutions, every word ‘is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify or enlarge it,’ and there cannot be imposed upon the words ‘any recondite meaning or extraordinary gloss.’” McKenna then continued, “And it is the rule of reason as well as of technicality, that if the works so expounded be ‘plain and clear, and the sense distinct and perfect arising on them’ interpretation has nothing to do.” Justice McKenna then added, “The powers of Congress were not decided to be supreme because they were concurrent with powers in the states, but because of their source, their source being the Constitution of the United States and laws made in pursuance of the Constitution, as against the source of the powers of the states, their source being the Constitution and the laws of the

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states, the Constitution and laws of the United States being made by article 6 the supreme law of the land, ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’” Justice Clarke also took issue with the word “concurrent” and also referred to the interpretation of the Constitution by the Court. The justice wrote, “The eighth, ninth and eleventh paragraphs [referring to the itemized conclusions by Justice Van Devanter] taken together, in effect declare the Volstead Act (41 Stat.305) to be the supreme law of the land-paramount to any state law with which it may conflict in any respect. Such a result, in my judgment, can be arrived at only by reading out the second section of Eighteenth Amendment to the Constitution the word ‘concurrent,’ as it is used in the grant to Congress and the several states of ‘concurrent power to enforce this article by appropriate legislation.’ This important word, which the record of Congress shows was introduced, with utmost deliberation, to give accurate expression to a very definite purpose, can be read out of the Constitution only by violating the sound and wise rule of constitutional construction early announced and often applied by this Court-that in expounding the Constitution of the United States no word in it can be rejected as superfluous or unmeaning, but effect must be given to every word to the extent that this is reasonably possible.” Both justices who concurred and dissented pointed out the numeric summation of conclusions gave little information as to the reasoning behind those conclusions, causing more questions rather than answering them. Of course the entire question of “concurrent” powers was finally answered by the passage of the 21st Amendment, repealing the 18th Amendment in its entirety. The conclusions of the Court regarding any “concurrent” power between Congress and the states do apply to an Article V Convention however. Combined with earlier decisions, it is clear the states do not have “concurrent” power to regulate a convention unless the clear language of Article V or similar language elsewhere in the Constitution so designates. Equally, Congress has no such power unless so designated by text of the Constitution. As was made clear in dissent, the powers of both states and Congress derive from the authority of Constitution, not each other. Finally, if there are such powers the powers must be employed to advance a convention. The principle of obedience to constitutional text was asserted by the Court. As stated before the Court determined that “concurrent power to enforce this article by appropriate legislation” does not enable Congress or the several states “to defeat or thwart the prohibition, but only to enforce it by appropriate means.” Thus, whether by exclusive authority of Congress, concurrent power of the states and Congress or the states alone the language of Article V mandates a convention call, and hence a convention, if the terms of Article V are satisfied. Neither the convention call, the text of Article V or any other text of the Constitution describes a manner or means whereby the states or Congress may

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“defeat or thwart” the convention leaving the conclusion that they may only act “to enforce it by appropriate means” consistent with the supreme law of the Constitution. Thus no state or congressional law may conflict with the “supreme law” of the Constitution and be used to “defeat or thwart” either the convention or the approbation of the people through their elected representatives to alter their form of government as the people choose.

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U.S. Supreme Court STATE OF RHODE ISLAND v. PALMER, 253 U.S. 350 (1920) 253 U.S. 350 STATE OF RHODE ISLAND v. PALMER, Atty. Gen., et al.

STATE OF NEW JERSEYv. SAME. DEMPSEYv. BOYNTON, U.S. Atty., et al. KENTUCKY DISTILLERIES & WAREHOUSE CO. v. GREGORY, U. S. Atty., et al. CHRISTIAN FEIGENSPAN v. BODINE, U.S. Atty., et al. SAWYER, U.S. Atty., et al. v. MANITOWOC PRODUCTS CO. ST. LOUIS BREWING ASS'N v. MOORE, Collector, et al. No.29 , Original. No. 30, Original.

No. 752. No.788. No. 794. No. 837. Decided June 7, 1920.

[253 U.S. 350, 353] [No. 29. Argued March 8 and 9, 1920: Mr. Herbert A. Rice, of Providence, R. 1., for complainant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for respondents. No. 30. Argued March 29, 1920: Mr. Thomas F. McCran, of Paterson, N. J., for complainant. Mr. Assistant

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Attorney General Frierson, for respondents. No. 696. Argued March 9, 1920: Mr. Patrick Henry Kelley, of Boston, Mass., for appellant. Mr. Assistant Attorney General Frierson, for appellees. No. 752. Argued March 9 and 10, 1920: Messrs. Levy Mayer, of Chicago, Ill., and William Marshall Bullitt, of Louisville, Ky., for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. No. 788. Argued March 29 and 30, 1920: Messrs. Elihu Root and William D. Guthrie, both of New York City, for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. No. 794. Argued March 30, 1920: Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellants. Mr. Ralph W. Jackman, of Madison, Wis., for appellee. No. 837. Submitted March 29, 1920: Messrs. Charles A. Houts, John T. Fitzsimmons, and Edward C. Crow, all of St. Louis, Mo., for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. [253 U.S. 350, 384] Mr. Justice VAN DEVANTER announced the conclusions of the Court. Power to amend the Constitution was reserved by article 5, which reads: 'The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures [253 U.S. 350, 385] of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.' The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919 (40 Stat. 1050, 1941), is as follows: 'Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. 'Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' We here are concerned with seven cases involving the validity of that amendment and of certain general features of the National Prohibition Law, known as the Volstead Act, c. 85, Acts 66th Cong., 1st Sess. (41 Stat. 305 ), which was adopted to enforce the amendment. The relief sought in each case is an injunction against the ee cuti on of that act. Two of the cases- Nos. 29 and 30, original,-were brought in this court, and the others in District Courts. Nos. 696, 752, 788, and 837 are here on appeals from decrees refusing injunctions, and No. 794 from a decree granting an injunction. The cases have been elaborately argued at

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the bar and in [253 U.S. 350, 386] printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusions on the questions involved: 1.

The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an

amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration. 2.

The two-thirds vote in each house which is required in proposing an amendment is 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. Missouri Pacific Ry. Co. v. Kansas, 248 U.S. 276 , 39 Sup. Ct. 93, 2 A. L. R.1589

3. The referendum provisions of state Constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, 253 U.S. 221 , 40 Sup. Ct. 495, 64 L. Ed.--, decided June 1, 1920.

4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution. 5. That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. 6. The first section of the amendment-the one embodying the prohibition-is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every [253 U.S. 350, 387] legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits.

7. The second section of the amendment-the one declaring 'The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation'-does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate means. 8. The words 'concurrent power,' in that section, do not mean joint power, or require that legislation

thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. 9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them. 10. That power may be exerted against the disposal for beverage purposes ofliquors manufactured before

the amendment became effective just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being enforced. 11. While

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recognizing that there are limits beyond which Congress cannot go in treating beverages as

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within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act (title 2, 1), wherein liquors containing as much as one-half of 1 percent. of alcohol by volume and fit for use for beverage [253 U.S. 350, 388] purposes are treated as within that power. Jacob Ruppert v. Caffey, 251 U.S. 264 , 40 Sup. Ct. 141, 64 L. Ed. --. Giving effect to these conclusions, we dispose of the cases as follows: In Nos. 29 and 30, original, the bills are dismissed. In No. 794, the decree is reversed. In Nos. 696, 752, 788 and 837, the decrees are affirmed. Mr. Chief Justice WHITE concurring. I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state governments, and intimately concerning the welfare of the whole people, the court has deemed it proper to state only ultimate conclusions without an exposition of the reasoning by which they have been reached. I appreciate the difficulties which a solution of the cases involve and the solicitude with which the court has approached them, but it seems to my mind that the greater the perplexities the greater the duty devolving upon me to express the reasons which have led me to the conclusion that the amendment accomplishes and was intended to accomplish the purposes now attributed to it in the propositions concerning that subject which the court has just announced and in which I concur. Primarily in doing this I notice various contentions made concerning the proper construction of the provisions of the amendment which I have been unable to accept, in order that by contrast they may add cogency to the statement of the understanding I have of the amendment. The amendment, which is reproduced in the announcement for the court, contains three numbered paragraphs or sections, two of which only need be noticed. The first prohibits-'the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, [253 U.S. 350, 389] or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes.' The second is as follows: 'Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' 1. It is contended that the result of these provisions is to require concurrent action of Congress and the states in enforcing the prohibition of the first section and hence that in the absence of such concurrent action by Congress and the states no enforcing legislation can exist, and therefore until this takes place the prohibition of the first section is a dead letter. But in view of the manifest purpose of the first section to apply and make efficacious the prohibition, and of the second to deal with the methods of carrying out that purpose, I cannot accept this interpretation, since it would result simply in declaring that the provisions of the second section, avowedly enacted to provide means for carrying out the first, must be so interpreted as to practically nullify the first. 2.

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It is said, conceding that the concurrent power given to Congress and to the states does not as a

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prerequisite exact the concurrent action of both, it nevertheless contemplates the possibility of action by Congress and by the states and makes each action effective, but as under the Constitution the authority of Congress in enforcing the Constitution is paramount, when state legislation and congressional action conflict the state legislation yields to the action of Congress as controlling. But as the power of both Congress and the states in this instance is given by the Constitution in one and the same provision, I again find myself unable to accept the view urged because it ostensibly accepts the constitutional mandate as to the concurrence of the two powers and proceeds immediately by way of interpretation to destroy it by making one paramount over the other.

3. The proposition is that the concurrent powers conferred [253 U.S. 350, 390] upon Congress and the states are not subject to conflict because their exertion is authorized within differet areas, that is, by Congress within the field of federal authority, and by the states within the sphere of state power, hence leaving the states free within their jurisdiction to determine separately for themselves what, within reasonable limits, is an intoxicating liquor, and to Congress the same right within the sphere of its jurisdiction. But the unsoundness of this more plausible contention seems to me at once exposed by directing attention to the fact that in a case where no state legislation was enacted there would be no prohibition, thus again frustrating the first section by a construction affixed to the second. It is no answer to suggest that a regulation by Congress would in such event be operative in such a state, since the basis of the distinction upon which the argument rests is that the concurrent power conferred upon Congress is confined to the area of its jurisdiction and therefore is not operative within a state. Comprehensively looking at all these contentions, the confusion and contradiction to which they lead, serve in my judgment to make it certain that it cannot possibly be that Congress and the states entered into the great and important business of amending the Constitution in a matter so vitally concerning all the people solely in order to render governmental action impossible, or, if possible, to so define and limit it as to cause it to be productive of no results and to frustrate the obvious intent and general purpose contemplated. It is true indeed that the mere words of the second section tend to these results, but if they be read in the light of the cardinal rule which compels a consideration of the context in view of the situation and the subject with which the amendment dealt and the purpose which it was intended to accomplish, the confusion will be seen to be only apparent. In the first place, it is indisputable, as I have stated, (253 U.S. 350, 391] that the first section imposes a general prohibition which it was the purpose to make universally and uniformly operative and efficacious. In the second place, as the prohibition did not define the intoxicating beverages which it prohibited, in the absence of anything to the contrary, it clearly, from the very fact of its adoption, cast upon Congress the duty, not only of defining the prohibited beverages, but also of enacting such regulations and sanctions as were essential to make them operative when defined. In the third place, when the second section is considered with these truths in mind it becomes clear that it simply manifests a like purpose to adjust, as far as possible, the exercise of the new powers cast upon Congress by the amendment to the dual system of government existing under the Constitution. In other words, dealing with the new prohibition created by the Constitution, operating throughout the length and breadth of the United States, without reference to state lines or the distinctions between state and federal power, and contemplating the exercise by Congress of the duty cast upon it to make the prohibition efficacious, it was sought by the second section to unite national and state administrative agencies in giving effect to the amendment and the legislation of Congress enacted to make it completely operative. Mark the relation of the text to this view, since the power which it gives to state and nation is, not to

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construct or perfect or cause the amendment to be completely operative, but as already made completely operative, to enforce it. Observe also the words of the grant which confines the concurrent power given to legislation appropriate to the purpose of enforcement. I take it that if the second section of the article did not exist no one would gainsay that the first section in and of itself granted the power and imposed the duty upon Congress to legislate to the end that by definition and sanction the amendment would become fully operative. This being [253 U.S. 350, 392] true it would follow, if the contentions under consideration were sustained, that the second section gv e the states the power to nullify the first section, since a refusal of a state to define and sanction would again result in no amendment to be enforced in such refusing state. Limiting the concurrent power to enforce given by the second section to the purposes which I have attributed to it, that is, to the subjects appropriate to execute the amendment as defined and sanctioned by Congress, I assume that it will not be denied that the effect of the grant of authority was to confer upon both Congress and the states power to do things which otherwise there would be no right to do. This being true, I submit that no reason exists for saying that a grant of concurrent power to Congress and the states to give effect to, that is, to carry out or enforce, the amendment as defined and sanctioned by Congress, should be interpreted to deprive Congress of the power to create, by definition and sanction, an enforceable amendment. Mr. Justice McREYNOLDS concurring. I do not dissent from the disposition of these causes as ordered by the court, but confine my concurrence to that. It is impossible now to say with fair certainty what construction should be given to the Eighteenth Amendment. Because of the bewilderment which it creates, a multitude of questions will inevitably arise and demand solution here. In the circumstances I prefer to remain free to consider these questions when they arrive. Mr. Justice McKENNA, dissenting. This case is concerned with the Eighteenth Amendment of the Constitution of the United States, its validity and construction. In order to have it, and its scope in attention, I quote it: [253 U.S. 350, 393] 'Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. 'Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' The court in applying it has dismissed certain of the bills, reversed the decree in one, and affirmed the decrees in four others. I am unable to agree with the judgment reversing No. 794 and affirming Nos. 752, 696, 788, and 837. I am, however, at a loss how or to what extent to express the grounds for this action. The court declares conclusions only, without giving any reasons for them. The instance may be wise-establishing a precedent now, hereafter wisely to be imitated. It will undoubtedly decrease the literature of the court if it does not increase its lucidity. However, reasons for the conclusions have been omitted, and my comment upon them may come from a misunderstanding of them, their present import and ultimate purpose and force.

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There are, however, clear declarations that the Eighteenth Amendment is part of the Constitution of the United States, made so in observance of the prescribed constitutional procedure, and has become part of the Constitution of the United States, to be respected and given effect like other provisions of that instrument. With these conclusions I agree. Conclusions 4, 5, and 6 seem to assert the undisputed. I neither assent to them or dissent from them except so far as I shall presently express. Conclusion 7 seems an unnecessary declaration. It may, however, be considered as supplementary to some other declaration. My only comment is that I know of no [253 U.S. 350, 394] intimation in the case that section 2 in conferring concurrent power on Congress and the states to enforce the prohibition of the first section, conferred a power to defeat or obstruct prohibition. Of course, the power was conferred as a means to enforce the prohibition and was made concurrent to engage the resources and instrumentalities of the nation and the states. The power was conferred for use, not for abuse. Conclusions 8 and 9, as I view them, are complements of each other, and express, with a certai verbal detail, the power of Congress and the states over the liquor traffic, using the word in its comprehensive sense as including the production ofliquor, its transportation within the states, its exportation from them, and its importation into them. In a word, give power over the liquor business from producer to consumer, prescribe the quality oflatter's beverage. Certain determining elements are expressed. It is said that the words 'concurrent power' of section 2 do not mean joint power in Congress and the states, nor the approval by the states of congressional legislation, nor its dependency upon s:tate action or inaction. I cannot confidently measure the force of the declarations or the deductions that are, or can be made from them. They seem to be regarded as sufficient to impel the conclusion that the Volstead Act is legal legislation and operative throughout the United States. But are there no opposing considerations, no conditions upon its operation? And what of conflicts, and there are conflicts, and more there may be, between it and state legislation? The conclusions of the court do not answer the questions and yet they are submitted for decision; and their importance appeals for judgment upon them. It is to be remembered states are litigants as well as private citizens, the former presenting the rights of the states, the latter seeking protection against the asserted aggression of the act in controversy. And there is opposing state legislation, why not a decision [253 U.S. 350, 395] upon it? Is it on account of the nature of the actions being civil and in equity, the proper forum being a criminal court investigating a criminal charge? There should be some way to avert the necessity or odium of either. I cannot pause to enumerate the contentions in the case. Some of them present a question of joint action in Congress and the states, either collectively with all or severally with each. Others assert spheres of the powers, involving no collision, it is said, the powers of Congress and the states being supreme and exclusive within the spheres of their exercise- called by counsel 'historical fields of jurisdiction.' I submit again, they should have consideration and decision. The government has felt and exhibited the necessity of such consideration and decision. It knows the conflicts that exist or impend. It desires to be able to meet them, silence them and bring the repose that will come from a distinct declaration and delimitation of the power of Congress and the states. The court, however, thinks otherwise and I pass to the question in the case. It is a simple one, it involves the meaning of a few English words-in what sense they shall be taken, whether in their ordinary sense, or have put upon them an unusual sense.

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Recurring to the first section of the amendment, it will be seen to be a restriction upon state and congressional power, and the deduction from it is that neither the states nor Congress can enact legislation that contravenes its prohibition. And there is no room for controversy as to its requirements. Its prohibition of 'intoxicating liquors' 'for beverage purposes' is absolute. And, as accessory to that prohibition, is the further prohibition of their manufacture, sale or transportation within or their importation into or exportation 'from the United States.' Its prohibition, therefore, is national, and considered alone, the means of its enforcement might be such as Congress, the agency of national power might [253 U.S. 350, 396] prescribe. But it does not stand alone. Section 2 associates Congress and the states in power to enforce it. Its words are: 'The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' What, then, is meant by the words 'concurrent power'? Do they mean united action, or separate and independent action, and, if the actions differ (there is no practical problem unless they differ), shall that of Congress be supreme? The government answers that the words mean separate and independent acto n, and, in case of conflict, that of Congress is supreme, and asserts besides, that the answer is sustained by historical and legal precedents. 1 I contest the assertions and oppose to them the common usage of our language, and the definitions of our lexicons, [253 U.S. 350, 397] general and legal. 2 Some of the definitions assign to the words 'concurrent power' action in conjunction, contribution of effort, certainly harmony of action, not antagonism. Opposing laws are not concurring laws, and to assert the supremacy of one over the other is to assert the exclusiveness of one over the other, not their concomitance. Such is the result of the government's contention. It does not satisfy the definitions, or the requirement of section 2-'a concurrent power excludes the idea of a dependent power.' Mr. Justice McLean in the Passenger Cases, 7 How. 283, 399. Other definitions assign to the words 'existing or happening at the same time,' 'concurring together,' 'coexistent.' These definitions are, as the others are, inconsistent with the government's contention. If coexistence of the power of legislation is given to Congress and the states by section 2, it is given to be coexistently exercised. It is to be remembered that the Eighteenth Amendment was intended to deal with a condition, not a theory, and one demanding something more than exhortation and precept. The habits of a people were to be changed, large business interests were to be disturbed, and it was considered that the change and disturbance could only be effected by punitive and repressive legislation, and it was naturally thought that legislation enacted by 'the Congress and the several states,' by its concurrence would better enforce prohibition and avail for its enforcement the two great divisions of our governmental system, [253 U.S. 350, 398] the nation and the states, with their influences and instrumentalities. From my standpoint, the exposition of the case is concluded by the definition of the words of section 2. There are, however, confirming considr ations; and militating considerations are urged. Among the confirming considerations are the cases of Wedding v. Meyler, 192 U.S. 573 , 24 Sup. Ct. 322, 66 L. R. A. 833, and Nielsen v. Oregon, 212 U.S. 315 , 29 Sup. Ct. 383, in which 'concurrent jurisdiction' was given respectively to Kentucky and Indiana over the Ohio river by the Virginia Compact, and respectively to Washington and Oregon over the Columbia river by act of Congress. And it was decided that it conferred equality of powers, 'legislative, judicial and executive,' and that neither state could override the legislation of the other. Other courts have given like definitions. 2 Words and Phrases Judicially Defined, p. 1391 et seq.; Bouvier's Dictionary, vol. 1, page 579. Analogy of the word 'concurrent' in private instruments may

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also be invoked. Those cases are examples of the elemental rule of construction that in the exposition of statutes and constitutions, every word 'is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify or enlarge it,' and there cannot be imposed upon the words 'any recondite meaning or any extraordinary gloss.' 1 Story, Const. 451; Lake County v. Rollins, 130 U.S. 662 , 9 Sup. Ct. 651. And it is the rule of reason as well as of technicality, that if the words so expounded be 'plain and clear, and the sense distinct and perfect arising on them' interpretation has nothing to do. This can be asserted of section 2. Its words express no 'double sense,' and should be accepted in their single sense. It has not yet been erected into a legal maxim of constitutional construction, that words were made to conceal thoughts. Besides, when we depart from the words, ambiguity comes. There are as many solutions [253 U.S. 350, 399] as there are minds considering the section, and out of the conflict, I had almost said chaos, one despairs of finding an undisputed meaning. It may be said that the court, realizing this, by a declaration of conclusions only, has escaped the expression of antithetical views and considered it better not to blaze the trails, though it was believed that they all led to the same destination. Ifit be conceded, however, that to the words 'concurrent power' may be ascribed the meaning for which the government contends, it certainly cannot be asserted that such is their ordinary meaning, and I might leave section 2, and the presumptions that support it, to resist the precedents adduced by the government. I go farther, however, and deny the precedents. The Federalist and certain cases are cited as such. There is ready explanation of both, and neither supports the government's contention. The dual system of government contemplated by the Union encountered controversies, fears, and jealousies that had to be settled or appeased to achieve union, and the Federalist in good and timely sense explained to what extent the 'alienation of state sovereignty' would be necessary to 'national sovereignty,' constituted by the 'consolidation of the states,' and the powers that would be surrendered, and those that would be retained. And the explanation composed the controversies and allayed the fears of the states that their local powers of government would not be displaced by the dominance of a centralized control. And this court after union had been achieved, fulfilled the assurances of the explanation and adopted its distribution of powers, designating them as follows: (1) Powers that were exclusive in the states-reserved to them; (2) powers that were exclusive in Congress, conferred upon it; (3) powers that were not exclusive in either, and hence said to be 'concurrent.' And it was decided that, when exercised by Congress, they were supreme-'the authority of the states then retires' to inaction. [253 U.S. 350, 400] To understand them, it must be especially observed that their emphasis was, as the fundamental principle of the new government was, that it had no powers that were not conferred upon it,a nd that all other powers were reserved to the states. And this necessarily must not be absent from our minds, whether construing old provisions of the Constitution or amendments to it or laws passed under the amendments. The government nevertheless contends that the decisions (they need not be cited) constitute precedents for its construction of section 2 of the Eighteenth Amendment. In other words, the government contends (or must so contend for its reasoning must bear the test of the generalization) that it was decided that in all cases where the powers of Congress are concurrent with those of the states, they are supreme as incident to concurrence. The contention is not tenable; it overlooks the determining consideration. The powers of Congress were not decided to be supreme because they were concurrent with powers in the states, but because of their source, their source being the Constitution of the United States and the laws made in pursuance of the Constitution, as against the source of the powers of the states, their source being the Constitution and laws of the states, the Constitution and laws of the United States being made by article 6 the supreme law of the land, 'any Thing in the Constitution or Laws of any State to the Contrary

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notwithstanding.' McCulloch v. Maryland, 4 Wheat. 316, 426. This has example in other powers of soverignty that the states and Congress possess. In McCulloch v. Maryland, at pages 425, 430 of 4 Wheat. ( 4 L. Ed. 579), Chief Justice Marshall said that the power of taxation retained by the states was not abridged by the granting of a similar power to the government of the Union, and that it was to be concurrently exercised, and these truths, it was added, had never been denied, and that there was no 'clashing sovereignty' from incompatibility of right. And, necessarily, a concurrence [253 U.S. 350, 401] of power in the states and Congress excludes the idea of supremacy in either. Therefore, neither principle nor precedent sustains the contention that section 2 by giving concurrent power to Congress and the states, gave Congress supreme power over the states. I repeat the declaration of Mr. Justice McLean: 'A concurrent power excludes the idea of a dependent power.' It is, however, suggested (not by the government that if Congress is not supreme upon the considerations

urged by the government, it is made supreme by article 6 of the Constitution. The article is not applicable. It is not a declaration of the supremacy of one provision of the Constitution or laws of the United States over another, but of the supremacy of the Constitution and laws of the United States over the Constitutions and laws of the states. Gibbons v. Ogden, 9 Wheat. 1, 209, 211; Sec. 1838 et seq.; 2 Story, Const., 5th Ed. The Eighteenth Amendment is part of the Constitution of the United States, therefore of as high sanction as article 6. There seems to be a denial of this, based on article 5. That article provides that the amendments proposed by either of the ways there expressed 'shall be valid to all intents and purposes as part of this Constitution.' Some undefinable power is attributed to this in connection with article 6, as if article 5 limits in some way, or defeats, an amendment to the Constitution inconsistent with a previously existing provision. Of course, the immediate answer is that an amendment is made to change a previously existing provision. What other purpose could an amendment have and it would be nullified by the mythical power attributed to article 5, either alone or in conjunction with article 6? A contention that ascribes such power to those articles is untenable. The Eighteenth Amendment is part of the Constitution and as potent as any other part of it. Section 2, therefore, is a new provision of Power, power to the [253 U.S. 350, 402] states as well as to Congress, and it is a contradiction to say that a power constitutionally concurrent in Congress and the states, in some way becomes constitutionally subordinate in the states to Congress. If it be said that the states got no power over prohibition that they did not have before, it cannot be said that it was not preserved to them by the amendment, notwithstanding the policy of prohibition was made national, and besides, there was a gift of power to Congress that it did not have before, a gift of a right to

be exercised within state lines, but with the limitation or condition that the powers of the states should remain with the states and be participated in by Congress only in concurrence with the states, and thereby preserved from abuse by either, or exercise to the detriment to prohibition. There was, however, a power given to the states, a power over importations. This power was subject to concurrence with Congress and had the same safeguards. This construction of section 2 is enforced by other considerations. If the supremacy of Congress had been intended it would have been directly declared as in the Thirteenth, Fourteenth and Fifteenth Amendments. And such was the condition when the amendment left the Senate. The precedent of preceding amendments was followed, there was a single declaration of jurisdiction in Congress.

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Section 2 was amended in the House upon recommendation of the Judiciary Committee and the provision giving concurrent power to Congress and to the states was necessarily estimated and intended to be additive of something. The government's contention makes it practically an addition of nothing but words, in fact denuding it of function, making it a gift of impotence, not one of power to be exercised independently of Congress or concurrently with Congress, or, indeed, at all. Of this there can be no contradiction, for what power is assigned to the states to legislate if the legislation be immediately [253 U.S. 350, 403] superseded-indeed, as this case shows, is possibly forestalled and precluded by the power exercised in the Volstead Act. And meaningless is the difference the government suggests between concurrent power and concurrent legislation. A power is given to be exercised, and we are cast into helpless and groping bewilderment in trying to think of it apart from its exercise or the effect of its exercise. The addition to section 2 was a conscious adaptation of means to the purpose. It changed the relation between the states and the national government. The lines of exclusive power in one or the other were removed, and equality and community of powers substituted. There is a suggestion, not made by the government, though assisting its contention, that section 2 was a gift of equal power to Congress and to.the states, not, however, to be concurrently exercised, but to be separately exercised; conferred and to be exercised is the suggestion, to guard against neglect in either Congress or the states, the inactivity of the one being supplied by the activity of the other. But there again we encounter the word 'concurrent' and its inexorable requirement of coincident or united action, not alternative or emergent action to safeguard against the delinquency of Congress or the states. If, however, such neglect was to be apprehended, it is strange that the framers of section 2, with the whole vocabulary of the language to draw upon, selected words that expressed the opposite of what the framers meant. In other words, expressed concurrent action instead of substitute action. I cannot assent. I believe they meant what they said and that they must be taken at their word. The government with some consciousness that its contention requires indulgence or excuse, but at any rate in recognition of the insufficiency of its contention to satisfy the words of section 2, makes some concessions to the states. They are, however, not very tangible to measurement. They seem to yield a power oflegislation to the states [253 U.S. 350, 404] and a power of jurisdiction to their courts, but almost at the very instant of concession, the power and jurisdiction are declared to be without effect. I am not, therefore, disposed to regard the concessions seriously. They en fuse-'make not light, but darkness, visible.' Of what use is a concession of power to the states to enact laws which cannot be enforced? Of what use a concession of jurisdiction to the courts of the states when their judgments cannot be executed, indeed the very law upon which it is exercised may be declared void in an antagonistic jurisdiction exerted in execution of an antagonistic power?3 And equally worthless is the analogy that the government assays between the power of the national government and the power of the states to criminally punish violations of their respective sovereignties, as, for instance, in counterfeiting cases. In such cases the exercises of sovereignty are not in antagonism. Each is inherently possessed and independently exercised, and can be enforced no matter what the other sovereignty may do or abstain from doing. On the other hand, under the government's construction of section 2, the legislation of Congress is supreme and exclusive. Whatever the states may do is abortive of effect. The government seeking relief from the perturbation of mind and opinions produced by departure from the words of section 2, suggests a modification of its contention, that in case of conflict between state legislation and congressional [253 U.S. 350, 405] legislation, that of Congress would prevail, by intimating that if state legislation be more drastic than congressional legislation, it might prevail, and in

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support of the suggestion, urges that section 1 is a command to prohibition, and that the purpose of section 2 is to enforce the command, and whatever legislation is the most prohibitive subserves best the command, displaces less restrictive legislation and becomes paramount. If a state, therefore, should define an intoxicating beverage to be one that has less than one-half of 1 per cent. of alcohol, it would supersede the Volstead Act and a state might even keep its legislation supreme by forestalling congressional retaliation by prohibiting all artificial beverages of themselves innocuous, the prohibition being accessory to the main purpose of power; adducing Purity Extract Co. v. Lynch, 226 U.S. 192 , 33 Sup. Ct. 44, and Ruppert v. Caffey, 251 U.S. 264 , 40 Sup. Ct. 141. Of course this concession of the more drastic legislation destroys all that is urged for congressional supremacy, for necessarily supremacy cannot be transferred from the states to Congress or from Congress to the states as the quantity of alcohol may vary in the prohibited beverage. Section 2 is not quite so flexible to management. I may say, however, that one of the conclusions of the court has limited the range of retaliations. It recognizes 'that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement' and declares 'that those limits are not transcended by the provisions of the Volstead Act.' Of course, necessarily, the same limitations apply to the power of the states as well. From these premises the deduction seems inevitable that there must be united action between the states and Congress, or, at any rate, concordant and harmonious action; and will not such action promote better the purpose of the amendment-will it not bring to the enforcement of prohibition, the power of the states and the power of [253 U.S. 350, 406] Congress, make all the instrumentalitieso f the states, its courts and officers, agencies of the enforcement, as well as the instrumentalities of the United States, its court and officers, agencies of the enforcement? Will it not bring to the states as well, or preserve to them, a partial autonomy, satisfying, if you will, their prejudices, or better say, their predilections; and it is not too much to say that our dual system of government is based upon them. And this predilection for self-government the Eighteenth Amendment regards and respects, and by doing so sacrifices nothing of, the policy of prohibition. It is, however, urged that to require such concurrence is to practically nullify the prohibition of the

amendment, for without legislation its prohibition would be ineffectual, and that it is impossible to secure the concurrence of Congress and the states in legislation. I cannot assent to the propositions. The conviction of the evils of intemperance-the eager and ardent sentiment that impelled the amendment, will impel its execution through Congress and the states. It may not be in such legislation as the Volstead Act with its 1/2of1 per cent. of alcohol or in such legislation as some of the states have enacted with their 2.75 per cent. of alcohol, but it will be in a law that will be prohibitive of intoxicating liquor for beverage purposes. It may require a little time to achieve, it may require some adjustments, but of its ultimate achievement there can be no doubt. However, whatever the difficulties of achievement in view of the requirement of section 2, it may be answered as this court answered in Wedding v. Meyler, supra: 'The conveniences and inconveniences of concurrent' power by the Congress and the states 'are obvious and do not need to be stated. We have nothing to do with them when the lawmaking power has spoken.' I am, I think, therefore, justified in my dissent. I am alone in the grounds of it, but in the relief of the solitude of my position, I invoke the coincidence of my views with [253 U.S. 350, 407] those entertained by the minority membership of the Judiciary Committee of the House of Representatives, and expressed in its report upon the Volstead Act. Mr. Justice CLARKE dissents. See 253 U.S. 350 , 40 Sup. Ct. 588,

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Mr. Justice CLARKE (dissenting). I concur in the first seven paragraphs and in the tenth paragraph of the announced 'Conclusions' of the

Court, but I dissent from the remaining three paragraphs. The eighth, ninth and eleventh paragraphs, taken together, in effect, declare the Volstead Act (41 Stat. 305) to be the supreme law of the land- paramount to any state law with which it may conflict in any respect. Such a result, in my judgment, can be arrived at only by reading out of the second section of the Eighteenth Amendment to the Constitution the word 'concurrent,' as it is used in the grant to Congress and the several states of 'concurrent power to enforce this article by appropriate legislation.' This important word, which the record of Congress shows was introduced, with utmost deliberation, to give accurate expression to a very definite purpose, can be read out of the Constitution only by violating the sound and wise rule of constitutional construction early announced and often applied by this Court-that in expounding the Constitution of the United States no word in it can be rejected as superfluous or unmeaning, but effect must be given to every word to the extent that this is reasonably possible. This rule was first announced in 1824 in Gibbons v. Ogden, 9 Wheat. 1; it was applied with emphasis in 1840 in Holmes v. Jennison, 14 Pet. 540, 570; and in the recent case of Knowlton v. Moore, 178 U.S. 41 , 20 Sup. Ct. 747. it is referred to as an elementary canon of constitutional construction. The authoritative dictionaries, general and law, and the decided cases, agree, that 'concurrent' means 'joint and equal authority,' 'running together, having the same authority,' and therefore the grant of concurrent power to the Congress and the states should give to each equal, the same, [253 U.S. 350, 408] authority to enforce the Amendment by appropriate legislation. But the conclusions of the Court from which I dissent, by rendering the Volstead Act of Congress paramount to state laws, necessarily deprive the states of all power to enact legislation in conflict with it, and construe the Amendment precisely as if the word 'concurrent' were not in it. The power of Congress is rendered as supreme as if the grant to enforce the Amendment had been to it alone, as it is in the Thirteenth, Fourteenth and Fifteenth Amendments and as it was in one proposed form of the Eighteenth Amendment which was rejected by Congress (Cong. Rec. July 30, 1917, p. 5548, and December 17, 1917, p. 469). Such a construction should not be given the Amendment if it can reasonably be avoided, as it very clearly may be, I think, with a resultant giving of a large and beneficent effect to the grant, as it is written. Giving to the word 'concurrent' its usual and authoritative meaning would result in congressional legislation under this grant of power being effective within the boundaries of any state only when concurred in by action of Congress and of such state, which, however, could readily be accomplished by the approval by either of the legislation of the other or by the adoption of identical legislation by both. Such legislation would be concurrent in fact and in law, and could be enforced by the courts and officers of either the nation or the state, thereby insuring a more general and satisfactory observance of it than could possibly be obtained by the federal authorities alone. It would, to a great extent, relieve Congress of the burden and the general government of the odium to be derived from the antagonism which would certainly spring from enforcing within states federal laws which must touch the daily life of the people very intimately and often very irritatingly. [253 U.S. 350, 409] Such co-operation in legislation is not unfamiliar to our Constitution or in our practical experience. By section 10 of article 1 of the Constitution of the United States the states are deprived of power to do

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many things without the consent of Congress, and that consent has frequently been given, especially to contracts and agreements between states, which without it would be unconstitutional and void. The Wilson Act of 1890 (Comp. St. 8738), the Webb-Kenyon Act of 1913 (Comp. St. 8739), and the Reed Amendment of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 8739a, 10387a-10387c), are familiar examples of co-operative legislation on the subject of intoxicating liquors. Other instances could readily be supplied. When to this we add that the Volstead Act is obviously in very large part a compilation from the prohibition codes of various states and is supposed to contain what is best in each of them, there is every reason to believe that if concurrent legislation were insisted upon, the act would be promptly approved by the Legislatures of many of the states and would thereby become the concurrent law of the state and nation throughout a large part of the Union. Under this construction, which I think should be given the Amendment, there would be large scope also for its operation even in states which might refuse to concur in congressional legislation for its enforcement. In my judgment the law in such a state would be as if no special grant of concurrent power for the enforcement of the first section had been made in the second section, but, nevertheless, the first section, prohibiting the manufacture, sale, transportation, importation or exportation, of intoxicating liquors for beverage purposes, would be the supreme law of the land within the nonconcurring states and they would be powerless to license, tax, or otherwise recognize as lawful anything violating that section, so that any state law in form attempting such recognition would be unconstitutional and void. Congress would have full power under the interstate commerce clause, [253 U.S. 350, 410] and it would be its duty, to prevent the movement of such liquor for beverage purposes into or out of such a state and the plenary police power over the subject, so firmly established in the states before the Eighteenth Amendment was adopted, would continue for use in the restricted field which the first section of the Amendment leaves unoccupied-and the presumption must always be indulged that a state will observe and not defy the requirements of the national Constitution. Doubtless such a construction as I am proposing would not satisfy the views of extreme advocates of prohibition or of its opponents, but in my judgment it is required by the salutary rule of constitutional construction referred to, the importance of which cannot be overstated. It is intended to prevent courts from rewriting the Constitution in a form in which judges think it should have been written insta d of giving effect to the language actually used in it, and very certainly departures from it will return to plague the authors of them. It does not require the eye of a seer to see contention at the bar of this Court against liberal, paramount, congressional definition of intoxicating liquors as strenuous and determined as that which we have witnessed over the strict definition of the Volstead Act. With respect to the eleventh conclusion of the Court, it is enough to say that it approves as valid a definition of liquor as intoxicating which is expressly admitted not to be intoxicating in each of the cases in which it is considered. This is deemed warranted, I suppose, as legislation appropriate to the enforcement of the first section and precedent is found for it in prohibition legislation by states. But I cannot agree that the prohibition of the manufacture, sale, etc., of intoxicating liquors in the first section of the Eighteenth Amendment gives that plenary power over the subject which the Legislatures of the states derive from the people or which may be derived from the war powers [253 U.S. 350, 411] of the Constitution. Believing, as I do, that the scope of the first section cannot constitutionally be enlarged by the language contained in the second section, I dissent from this conclusion of the Court. In the Slaughterhouse Cases, 16 Wall 36, and other cases, this Court was urged to give a construction to the Fourteenth Amendment which would have radically changed the whole constitutional theory of the

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relations of our state and federal governments by transferring to the general government that police power, through the exercise of which the people of the various states theretofore regulated their local affairs in conformity with the widely differing standards of life, of conduct and of duty which must necessarily prevail in a country of so great extent as ours, with its varieties of climate, of industry and of habits of the people. But this Court, resisting the pressure of the passing hour, maintained the integrity of state control over local affairs to the extent that it had not been deliberately and clearly surrendered to the general government, in a number of decisions which came to command the confidence even of the generation active when they were rendered and which have been regarded by our succeeding generation as sound and wise and highly fortunate for our country. The cases now before us seem to me to again present questions of like character to, and of not less importance than, those which were presented in those great cases, and I regret profoundly that I cannot share in the disposition which the majority of my Associates think should be made of them.

Footnotes [ Footnote 1 ] The following is the contention of the government which we give to accurately represent it: 'It is true that the word 'concurrent' has various meanings, according to the connection in which it is used. It may undoubtedly be used to indicate that something is to be accomplished by two or more persons acting together. It is equally true that it means, in other connections, a right which two or more persons, acting separately and apart from each other, may exercise at the same time. It would be idle, however, to go into all the meanings which may attach to this word. In certain connections, it has a well-fixed and established meaning, which is controlled in this case.' And again: 'It is to be noted that section 2 does not say that legislation shall be concurrent, but that concurrent power to legislate shall exist. The concurrent power of the states and Congress to legislate is nothing new. And its meaning has been too long settled, historically and judicially, to now admit of question. The term has acquired a fixed meaning through its frequent use by this court and eminent statesmen and writers in referring to the concurrent power of Congress and the states to legislate.' And after citing cases, the government says: 'It will thus be seen that in legal nomenclature the concurrent power of the states and of Congress is clearly and unmistakably defined. It simply means the right of each to act with respect to a particular subject-matter separately and independently.' [ Footnote 2 ] Definitions of the dictionaries are as follows: The Century: 'Concurrent: ... 2. Concurring; acting in conjunction; agreeing in the same act; contributing to the same event or effect; operating with; coincident. 3. Conjoint; joint; concomitant; coordinate; combined .... That which concurs; a joint of contributory thing.' Webster's first definition is the same as that of the Century. The second is as follows: 'Joint; associate; concomitant; existing or happening at the same time.' [ Footnote 3 ] The government feels the inconsistency of its concessions and recessions. It asserts at one instant that the legislation of the states may be enforced in their courts, but in the next instant asserts that the conviction or acquittal of an offender there will not bar his prosecution in the federal courts for the same act as a violation of the federal law. From this situation the government hopes that there will be rescue by giving the Eighteenth Amendment 'such meaning that a prosecution in the courts of one government may be held to bar a prosecution for the same offence in the courts of the other.' The government considers, however, the question is not now presented.

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General Discussion

DILLON v. GLOSS, 256 U.S. 368 (1921) In Dillon v. Gloss, 256 U.S. 368 (1921) (hereafter Dillon) the Supreme Court addressed whether or not Congress could place a limit on the time allowed for states to ratify a proposed amendment. Associate Justice Willis Van Devanter delivering the opinion for a unanimous Court found a ratification limit was constitutional provided the limit was “within some reasonable time after the proposal.” While the Court did not specifically discuss the authority of a convention to impose ratification time Van Devanter limits on its amendment proposals, the discussions of previous Court rulings shown thus far indicates a convention, to avoid massive constitutional quandaries, must have this authority. The Court discussed the convention clause in general. This discussion is significant Mr. President in that the Court expressly stated that (a) the people are the source of sovereignty in this nation and (b) all amendments must have the sanction of the people in representative assemblies. There have been recent attempts by several political groups to cause a convention call whereby the states, as sovereign entities, control all aspects of a convention such as delegate selection, agenda, amendment text and outcome without any participation of the people whatsoever. This premise will be discussed in greater detail later in this Appendix. The Court emphatically rejected this premise stating: “Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in threefourths of the states shall be taken as a decisive expression of the people’s will and be binding on all.” [Emphasis added]. The issue for an Article V Convention is whether a convention in which delegates to the convention are pre-selected by a state legislature, without a vote of the people: given a set of instructions as to what shall be discussed, voted and approved at a convention, without input of the people; face state felony charges if said delegates stray to discuss other issues without permission of the state legislature, without advice of the people; are subject to editorial review by the state legislature of any amendment proposal, without involvement of the people; and are mandated to manufacture a pre-determined

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amendment from the state legislature, without review of the people, it can be said such assembly is representative or sanctioned by the people as the people have no part of its process whatsoever. Obviously to sanction something at the minimum requires the sanctioning party have the ability to sanction meaning at some point the question is placed before them so they can consent. While the Court was discussing ratification conventions, it did not exclude the proposal convention (an Article V Convention) nor Congress from its emphatic statement of that “all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies.” Hence, as state legislatures, Congress and state ratification conventions are all elected and thus qualify as having the sanction of the people of the United States, it follows for a convention to qualify it must a representative assembly meaning its delegates are elected, not appointed and share the same autonomy as the other three representative assemblies. As stated in Hawke, neither Congress nor the federal courts have the right to alter the ratification procedure from that which the Constitution has set. Gulf clearly states unless there is a reasonable basis for doing so, discrimination is not permitted in the amendatory process. Discrimination against the convention that is, denying it the identical powers of amendment proposal permitted to Congress is therefore unconstitutional. In all instances where Congress imposed a ratification time limit, the text of that limit was included as part of the language of the proposed amendment. Clearly, if Congress sent its ratification limit in a message separate of the proposed amendment language when notifying the states of its proposed amendment, no question of equality would exist. The convention has no ratification function and therefore is limited strictly to amendment proposal. By sending a separate message Congress would have decisively separated its two constitutional functions, proposal and ratification so that such limit became part of its ratification authority. However such an act would be unconstitutional as neither mode of ratification describes such power for Congress. Hence, the power must be a power of amendment proposal rather than of ratification as Congress is free, like the convention, to propose anything it wishes. It remains to the states to determine whether or not that proposal becomes part of the Constitution. Any doubt of this interpretation is removed by the obvious fact all ratification limits have been enrolled as part of the Constitution as a section of each amendment meaning the term limit was ratified along with the proposed language. Thus, the Dillon ruling actually addresses whether or not, as part of its proposal authority, Congress can insert a ratification instruction into the text of a proposed amendment. The Court did not directly address whether a convention has the same power of ratification time limit as Congress. The question of whether a convention

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possesses such power is best answered by examination of the consequence of allowing only Congress to insert such a time limit in an amendment proposed by a convention. More generally, the question opens the door to addressing whether or not Congress has the power to “edit” the proposed text of a convention proposed amendment before Congress “agrees” to submit the proposed text for ratification by the states. Again the doctrine expressed in Hawke resolves this question. The Constitution contains no provision permitting Congress authority to “edit” an amendment proposal submitted by a convention including inserting a time limit of any description. The two modes of proposal are distinct, separate and autonomous just as the two modes of ratification are distinct, separate and autonomous. Because of this compartmentalization an amendment cannot be ratified using one-fourth state conventions and one-half state legislatures to achieve the necessary threefourths ratification. By the same token the convention has the right to propose an amendment without bowdlerization by Congress. To permit otherwise compromises the integrity of the entire amendment process by violating the separation of powers doctrine. Hawke clearly states Congress is limited to a choice between two modes of ratification in the Constitution—nothing more. Neither mode describes a power of editing permitting Congress to alter the text of a convention amendment prior to it being submitted to the states for ratification consideration. Therefore while Congress has a right to propose a ratification time limit it is limited to an amendment proposed by Congress. Simultaneously if a convention proposes the amendment, it has the same authority to impose a ratification time limit if it so chooses. Moreover allowing Congress editing powers over a convention amendment proposal opens huge constitutional enigmas. The Constitution, for example, does not require a two-thirds vote by Congress to choose a mode of ratification for a proposed amendment. If Congress by majority vote “edits” a proposed convention amendment and inserts a ratification time limit, is it still a properly proposed amendment? Has the text, originally proposed by two-thirds vote in one constitutional body but now modified by majority vote of another constitutional body satisfied the two-thirds mandate of the Constitution that all amendment proposals receive a two-thirds vote of support from the proposing body before submission? If Congress instead modifies the amendment by twothirds vote in both houses, has it now “proposed” the amendment instead of the convention? If so, what becomes of the original amendment proposal of the convention passed by a similar two-thirds vote? Does that text simply die away replaced by the congressional proposal? If the Constitution is to have any validity, such conundrums must be avoided at all costs. Mr. President, even if Dillon only addresses Congress’ right to insert ratification time limits in an amendment proposal, the quagmire of denial of this equal right to the convention makes it obvious Gulf’s equal protection position is

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preferable. By such action, all thorny constitutional questions vanish. Each body is free to propose such limit as it deems proper for its amendment proposal without effect on the choice of ratification mode exclusively granted Congress or the number of states mandated to ratify to cause the proposal to become part of the Constitution. In discussing its conclusion of permitting ratification time limits, the Court said, “We do not find anything in the article [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. 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 therefore 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. ... That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make threefourths by representatives of the present or some future generations. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal.” Of course Mr. President you are aware of the event which invalided the Court’s determination of contemporaneousness as the basis of ratification of a proposed amendment—the ratification of the 27th Amendment. As mentioned by the Court, the 27th Amendment was one of 12 proposed amendments submitted by the Congress part of the original Bill of Rights in 1789. In 1992, the requisite three-fourths states ratified the proposal thus making the 1789 proposed amendment the 27th Amendment to the Constitution. The period of

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ratification for the states therefore exceeded 200 years. Based on the ratification of the 27th Amendment, it is clear unless the proposing body places a ratification time limit in the proposed amendment, there is no limit on when the states may ratify a proposed amendment. This ratification nullifies most of Dillon’s premise that proposal and ratification are events which must occur within a short period of time so as to be contemporary. Instead the 27th Amendment’s ratification shows ratification can occur over centuries. A proposed amendment remains valid therefore until ratified by three-fourths of the present states or is rejected by more than one-fourth of the present states. In its discussion of the amendment process the Court quoted Article V noting that “on the application of the legislatures of two thirds of the several states [Congress] shall call a convention for proposing amendments…” However later in its ruling the Court returned to discussion of the convention stating, “An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired, it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on the application of twothirds of the states Congress shall call a convention for the purpose.” [Emphasis added]. The Court clearly states the purpose of the applications submitted by the states. It is to cause Congress to call a convention “for the purpose” of proposing amendments. With this clear interpretation of the purpose of the applications the Court established the convention, not the states, propose amendments. Hence, any text in the language of an application dealing with an amendment proposal is a matter for a convention to resolve, not Congress. Therefore as the purpose of the application is to call a convention, any subject matter of amendment contained in the application has no constitutional consequence as it is dicta relative to the constitutional purpose of causing Congress to call. It is the act of submission and total number of submissions which concern Congress and not any content of the application. If this were not so it would enable the states to by-pass the convention and render it a pro forma rather than a substantive constitutional process. If such interpretation were correct, the Court would be required to state this as part of its definition of the constitutional purpose of an application. There is no language in Dillon referring to the amendment subject matter in an application as the basis of determination of whether or not Congress is obligated to call a

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convention. The 1930 statement in Congress in Section 2 of this Appendix demonstrates that body recognized this constitutional interpretation by the Court as the summation clearly referred to the number of applying states rather than any subject matter or matters contained in the applications as the basis for a convention call by Congress. Some convention opponents suggest the contemporary standard of Dillon applies to state applications for a convention. A reason Congress can reject a state application, these opponents state, must be on the basis of how old, or rather how long, Congress has ignored the application. Thus, after an unspecified period Congress can refuse to call based on the age of the application if it puts off calling the convention long enough to allow the applications to age. The Constitution disagrees. The term “on the application… [Congress] shall call a convention…” describes an immediate response on the part of Congress. Any delay is unconstitutional. The unconstitutional cannot usurp the constitutional. Therefore any time delay by Congress to call the convention cannot affect the efficacy the applications. Moreover, as described in Section 2, the official action of Congress has thus far been to allow the applications to “lie on the table.” According to Robert’s Rules of Order, Newly Revised, 11th Edition, to lie on the table means that there is no time limit on an issue an assembly places on the table. It hibernates. Therefore, according to parliamentary procedure, no time is attached to the issue meaning the applications are literally as contemporary as the day they were submitted to Congress by the states because under the rules of parliamentary procedure the applications do not age so long as they lie on the table. Frank E. Packard, attorney, discussed Dillon as it applies to applications in a Marquette Law Review Article (Volume 35) reprinted on pages 243-50 of this Appendix. Packard discussed the submission of applications by the states for a convention call regarding limitation of federal income tax rates. He notes several states have rescinded applications but notes state rescissions “were not effectuated” by the federal government where the states have taken such action in the part in regards to the amendatory process. Packard cites the example of the states of New Jersey and Ohio which first ratified, then attempted to rescind their ratification votes of the 14th Amendment. He noted Secretary of State William H. Seward and Congress ignored the rescissions and listed the two states as ratifying states in declaring the amendment ratified. Packard then cites the action of Secretary of State Hamilton Fish regarding a rescission by the state of New York of its ratification vote for the proposed 15th Amendment. Again the secretary of state ignored the rescission and listed New York as one of the ratifying states for the 15th Amendment (Page 244).

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Packard’s third example concerned the repeal of the 18th Amendment in which he postulated that as the state legislatures had approved the 18th Amendment, it was likely Congress felt its repeal required “an agency closer to the seats of sovereignty—the peoples of the states themselves…” Thus Packard asserts that for the state legislatures to rescind a convention application once submitted it would require consent by the people, a process not found in Article V and therefore, as specified in Hawke, not permitted. As no process exists in the Constitution to rescind applications, such rescissions by definition are unconstitutional (Pages 244-45). Packard then discusses the concept of contemporaneousness and state applications. He states some applications “might be contended by opponents…that an unreasonable length of time has elapsed since the passage of the resolutions… and therefore, the resolutions passed by these …states no longer can be counted.” Packard counters this argument by quoting from Justice Van Devanter who stated, “…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.” Instead Packard states, “Thus, the reasonable length of time necessary is the interval between proposal and ratification. The reasonable-length-of-time doctrine is inapplicable to the movement to secure the income tax rate-ceiling amendment as there has been no proposal as yet of such income tax rate-limitation amendment. There can be no proposal until the Congress calls a convention, the convention proposes the amendments and the Congress directs the mode of ratification.” [Emphasis added] (Pages 244-45). Thus the contemporary argument is invalid because all state applications have been designated by Congress as lying on the table. This parliamentary action means the applications enter a state of hibernation on which time has no effect. Further, as Packard describes, the time-length doctrine of Dillon only takes place after an amendment is proposed meaning until the convention actually proposes an amendment the Dillon doctrine of time limit cannot be attached. Finally Packard suggests applications must be grouped by subject matter in order for them to “count” toward a convention call. In doing so he ignores the clear interpretation by the Court in Dillon regarding the purpose of the application which is to cause a convention call, not propose an amendment. As explained by Madison and Hamilton, the Founders clearly did not intend such an obvious obstacle to exist which Congress could easily turn to its advantage and not call the convention. Madison made it clear there was to be no “vote, debate or committee.” Hamilton described the process as “peremptory” giving “the national rules no option” on the matter. Clearly having an option to group applications by subject matter prior to determining whether to call a convention allows Congress to easily dismiss applications for the slightest reason and thus not call. The idea violates the dogmas established by the

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Founders who wrote Article V with the intent of providing a method of amendment proposal not controlled by Congress. Subject matter determination obviously controls that proposal method and therefore is not what the Founders intended. Finally, Mr. President, the public record of applications submitted by the states show the states have satisfied the “same-subject” requirement at least three times meaning such discussion is moot as regardless of the method of tabulation involved Congress must call a convention.

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U.S. Supreme Court DILLON v. GLOSS, 256 U.S. 368 (1921) 256 U.S. 368 DILLON v. GLOSS, Deputy Collector. No. 251.

Argued March 22, 1921. Decided May 16, 1921. [256 U.S. 368, 369] Messrs. Levi Cooke, of Washington, D. C., and Theodore A. Bell, of San Francisco, Cal., for appellant. [256 U.S. 368, 370] The Assistant Attorney General Adams, for appellee.

Mr. Justice VAN DEVANTER delivered the opinion of the Court. This is an appeal from an order denying a petition for a writ of habeas corpus. Ex parte Dillon (D. C.) 262 Fed. 563. The petitioner was in custody under section 26 of title 2 of the National Prohibition Act, c. 85, 41 Stat. 305, on a charge of transporting intoxicating liquor in violation of section 3 of that title, and by his petition sought to be discharged on several grounds, all but two of which were abandoned after the decision in National Prohibition Cases, 253 U.S. 350 , 40 Sup. Ct. 486, 588. The remaining grounds are, first, that the Eighteenth Amendment to the Constitution, to enforce which title 2 of the act was adopted, is invalid, because the congressional [256 U.S. 368, 371] resolution (40 Stat. 1050) proposing the amendment declared that it should be inoperative unless ratified within seven years; and, secondly, that, in any event, the provisions of the act which the petitioner was charged with violating, and under which he was arrested, had not gone into effect at the time of the asserted violation nor at the time of the arrest. The power to amend the Constitution and the mode of exerting it are dealt with in article 5, which reads: 'The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as

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part of this Constitution, when ratified by the Legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.' It will be seen that this article says nothing about the time within which ratification may be had-neither that it shall be unlimited nor that it shall be fixed by Congress. What then is the reasonable inference or implication? Is it that ratification may be had at any time, as within a few years, a century or even a longer period, or that it must be had within some reasonable period which Congress is left free to define? Neither the debates in the federal convention which framed the Constitution nor those in the state conventions which ratified it shed any light on the question. The proposal for the Eighteenth Amendment is the [256 U.S. 368, 372] first in which a definite period for ratification was fixed. 1 Theretofore 21 amendments had been proposed by Congress and seventeen of these had been ratified by the Legislatures of three fourths of the states-some within a single year after their proposal and all within four years. Each of the remaining 4 had been ratified in some of the states, but not in a sufficient number. 2 Eighty years after the partial ratification of one, an effort was made to complete its ratification, and the Legislature of Ohio passed a joint resolution to that end,3 after which the effort was abandoned. Two, after ratification in one less than the required number of states had lain dormant for a century. 4 The other, proposed March 2, 1861, declared: 'No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any state, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said state.' 5 Its principal purpose was to protect slavery and at the time of its proposal and partial ratification it was a subject of absorbing interest, but after the adoption of the Thirteenth Amendment it was generally forgotten. Whether an amendment [256 U.S. 368, 373] proposed without fixing any time for ratification, and which after favorable action in less than the required number of states had lain dormant for many years, could be resurrected and its ratification completed had been mooted on several occasions, but was still an open question. These were the circumstances in the light of which Congress in proposing the Eighteenth Amendment fixed seven years as the period for ratification. Whether this could be done was questioned at the time and debated at length, but the prevailing view in both houses was that some limitation was intended and that seven years was a reasonable period. 6 That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed. 7 An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired,8 it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without [256 U.S. 368, 374] its consent, of its equal suffrage in the Senate. 9 A further mode of proposal-as yet never invoked-is provided, which is, that on the application of two-thirds of the states Congress shall call a convention for the purpose. When proposed in either mode amendments to be effective must be ratified by the Legislatures, or by conventions, in three-fourths of the states, 'as the one or the other mode of ratification may be proposed by the Congress.' Thus the people of the United States, by whom the Constitution was ordained

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and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people's will and be binding on all. 10 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. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps [256 U.S. 368, 375] 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 threefourths 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. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson11 'that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.' That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal. Of the power of Congress, keeping within reasonable [256 U.S. 368, 376] limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require;12 and article 5 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. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified. The provisions of the act which the petitioner was charged with violating and under which he was arrested (title 2, 3, 26) were by the terms of the act (title 3, 21) to be in force from and after the date when the Eighteenth Amendment should go into effect, and the latter by its own terms was to go into effect one year after being ratified. Its ratification, of which we take judicial notice, was consummated January 16, 1919.13 That the Secretary of State did not proclaim its ratification until January 29, 1919,14 is not material, for the date of its consummation, and not that on which it is proclaimed, controls. It follows that the provisions of the act with which the petitioner is concerned went into effect January [256 U.S. 368, 377]

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16, 1920. His alleged offense and his arrest were on the following day; so his claim that those provisions had not gone into effect at the time is not well grounded. Final order affirmed.

Footnotes [ Footnote 1 ] Some consideration had been given to the subject before, but without any definite action. Cong. Globe, 39th Cong. 1st Sess. 2771; 4oth Cong. 3d Sess. 912, 1040, 1309-1314. [ Footnote 2 ] Watson on the Constitution, vol. 2, pp. 1676-1679; House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, p. 300. [ Footnote 3 ] House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, p. 317 (No. 243); Ohio Senate Journal, 1873, pp. 590, 666, 667, 678; Ohio House Journal, 1873, pp. 848, 849. A committee charged with the preliminary consideration of the joint resolution reported that they were divided in opinion on the question of the validity of a ratification after so great a lapse of time. [ Footnote 4 ] House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, pp. 300, 320 (No. 295), 329 (No. 399). [ Footnote 5 ] 12 Stat. 251; House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, pp. 195-197, 363 (No. 931), 369 (No.1025). [ Footnote 6 ] Cong. Rec. 65th Cong. 1st Sess. pp. 5648-5651, 5652-5653, 5658-5661; 2d Sess. pp. 423-425, 428,436,443,444,445-446,463,469,477-478. [ Footnote 7 ] United States v. Babbit, 1 Black, 55, 61; Ex parte Yarbrough, 110 U.S. 651, 658 , 4 S. Sup. Ct. 152; McHenryv. Alford, 168 U.S. 651, 672 , 18 S. Sup. Ct. 242; South Carolina v. United States, 199 U.S. 437, 451 , 26 S. Sup. Ct. 110, 4 Ann. Cas. 737; Luria v. United States, 231 U.S. 9, 24 , 34 S. Sup. Ct. 10; The Pesaro, 255 U.S. 216 , 41 Sup. Ct. 308. [ Footnote 8 ] Article 5, as before shown, contained a provision that 'no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article.' One of the clauses named covered the migration and importation of slaves and the other deals with direct taxes. [ Footnote 9 ] When the federal convention adopted article 5 a motion to include another restriction forbidding any amendment whereby a state, without its consent, would 'be affected in its internal police' was decisively voted down. The vote was: Yeas 3-Connecticut, New Jersey, Delaware; nays 8-New Hampshire, Massachusetts, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia. Elliott's Debates, vol. 5, pp. 551, 552. [ Footnote 10 ] See Martin v. Hunter's Lessee, 1 Wheat. 304, 324, 325; McCulloch v. Maryland, 4 Wheat. 316, 402-404; Cohens v. Virginia, 6 Wheat. 264, 413, 414; Dodge v. Woolsey, 18 How. 331, 347, 348; Hawke v. Smith, 253 U.S. 221 , 40 Sup. Ct. 495, 10 A. L. R. 1504; Story on the Constitution (5th Ed.) 362, 363, 463-465. [ Footnote 11 ] Jameson on Constitutional Conventions (4th Ed.) 585. [ Footnote 12 ] Martin v. Hunter's Lessee, 1 Wheat. 304, 326; McCulloch v. Maryland, 4 Wheat. 316, 407.

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[ Footnote 13 ] Sen. Doc. No. 169, 66th Cong. 2d Sess.; Ark. Gen.Acts 1919, p. 512; Ark. House Journal, 1919, p. 10; Ark. Sen. Journal, 1919, p. 16; Wyo. Sen. Journal, 1919, pp. 26, 27; Wyo. House Journal, 1919, pp. 27, 28; Mo. Sen. Journal, 1919, pp. 17, 18; Mo. House Journal, 1919, p. 40. [ Footnote 14 ] 40 Stat. 1941.

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LEGAL ASPECTS OF A CONSTITUTIONAL

AMENDMENT LIMITING INCOME TAX RATES FRANK

E.

PACKARD*

The idea of constitutional ceiling placed upon the power of the government to tax is nothing new or revolutionary, as we have seventeen precedents for such a scheme in the form of seventeen States which have self-imposed limitations in their constitutions on the power to tax. These limitations are set forth as annual maxima and are of three types: firstly, a number of mills per dollar of the.assessed valuation of all taxable property in the state ; secondly, a number of cents per hundred dollars valuation; and thirdly, a percentage rate on the valuation. The first type is represented by the following States and number of mills respectively: South Dakota,1 two mills; Utah,2 two and four-tenths mills; Oklahoma,3 three and one-half mills; Colorado,4 four mills; New Mexico,5 four mills; North Dakota,6 four mills; Wyoming,1 fQur mills; Georgia,8 five mills; Louisiana,9 five and one-quarter mi11s; Idaho,10 ten mills ; and N eveda,11 fifty mills. The second type is represented by the following States and numbers of cents respectively: Missouri,12 twenty cents; Texas,1 3 thirty-five cents; and West Virginia,14 one hundred cents. The third type is represented by the following States and percentages respectively: Alabama,15 sixty-five one-hundredths of one per cent; Arkansas,16 one per cent; and Michigan,11 one and one-half per cent. It will be noted that none of these constitutional ceilings placed upon the power of a government to tax obtain in any of the Eastern or New England States. Great progress has been made in the movement, begun in 1939, to secure an amendment to the Constitution of the United States limiting income tax rates to twenty-five per cent in peacetime. The mode of *Member of the Illinois Bar. S.D. CONST., 1889, Art. XI, sec. 1. 2 UTAH CONST., 1896, Art. XIII, sec. 7. s OKL. CONST., 1907, Art. X, sec. 9. 4 CoL. CoNST., 1876, Art. X, sec. 11. s N .M. CoNsT., 1911, Art. VIII, sec. 2. 6 N.D. CoNsT., 1889, Art. XI, sec. 174. 1 WYOMING CONST., 1890, Art. xv, sec. 4. s GA. CONST., 1945, Art VII, sec. 1, par. 2, clause 3. s LA. CONST., 1921, Art. X, sec. 3. 10 IDAHO CONST., 1890, Art. VII, sec. 9. 11 NEV. CoNsT., 1864, Art. X, sec. 145.01. 12 Mo. CoNST., 1875, Art. X, sec. 8. 1s TEX. CoNsT., 1876, Art. VIII, sec. 9. 14 W. VA. CONST., 1872, Art. X, sec. 1. 1s ALA. CoNsT., 1901, Art. XI, sec. 214. 16 ARK. CoNST., 1874, Art. x~. sec. 8. 11 MICH. CONST., 1908, Art. X, sec. 21. 1

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amending the Constitution pursued is by State legislatures applying to the Congress to call a convention proposing amendments. No amendment to the Constitution has been effectuated by the use of this method. Resolutions in favor of the income tax rate-ceiling amendment memorializing the Congress to call a convention have been passed by the legislatures of twenty-six States-Wyoming, Rhode Islandt Mississippit Iowa, Maine, Massachusetts, Michigan, Indiana, Arkansas, Delaware, Pennsylvania, Texas, Illinois, Wisconsin, Alabama, Kentucky, New Jersey, New Hampshire, Nebraska, Louisiana, Montana, Nevada, New Mexico, Utah, Kansas and Florida. However, four States-Illinois,18 Alabama, 19 Wisconsin20 and Kentucky21-subsequently took action to rescind their respective ~esolutions. Rescissions were not effectuated in the foregoing premises for the following three reasons : 1. New Jersey and Ohio22 were among the States which ratified the proposed Fourteenth Amendment.23 Subsequently, New Jersey and Ohio24 took action to rescind their respective ratifications. However, after passage of ratifications by the necessary three-fourths States, the Congress passed a resolution25 listing the ratifying States and included New Jersey and Ohio. The Congress transmitted such resolutions to the Department of State. Secretary of State, William H. Seward, in pursuance of such resolution and acting under statutory duty, issued his certification26 declaring the Fourteenth Amendment an integral part of the Constitution. In his certificationt Secretary of State Seward also listed the ratifying States and included New Jersey and Ohio. 2. New York was among the States which ratified the proposed Fifteenth Amendment. Subsequently, New York took action to rescind her ratification. However, after passage of ratifications by the requisite three-fourths States, Secretary of State Hamilton Fish, acting under statutory duty, issued his certification27 declaring the Fifteenth Amendment and integral part of the Constitution. In his certification Secretary of State Fish listed the ratifying States and included New York. 3. In the cases of all but one of the twenty-two amendments to the Constitution, the Congress directed ratification to be by State legislatures. Only in the case of the Twenty-first Amendment did the Congress direct the ratification to be by State conventions. This exception 1s Ill. Laws, 1945, p. 1797. i9 Ala. Acts, 1945, p. 155. 20 Wis. Laws, 1944-45, pp. 1126-27. 21 Ky. Acts, 1946, p. 720. 22 Ohio Laws, 1867, pp. 320-21.

14 65 25 15 26 15

358.

23

STAT.

24

OHIO LAWS

27

STAT. STAT. STAT.

16

280.

709, 710.

708, 709. 1131", 1132.

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to the general policy historically followed was made seemingly ex industria. The only feasible reason for the exception is that the TwentyFirst Amendment is the only amendment which repealed a preceding amendment (the Eighteenth Amendment). The Congress apparently thought that in order for the States to ratify the proposed Twenty-First Amendment and thus to rescind the prior action that their respective legislatures had taken in ratifying the Eighteenth Amendment ratifying action by an agency closer to the seats of sovereignty-the peoples of the States themselves. was necessary and, therefore, designated conventions as the mode of ratification. The text of the resolutions specifies that the limitations upon the income tax rates "... shall, however, be subject to the qualification that in the event of a war in which the United States is engaged creating a grave national emergency requiring such action to avoid national disaster ..." such limitations may be deferred. The phraseology employed is broad enough to include "a police action" for in 1941 in the case of Verano V. De Angelis Coal Co. the District Court of the United States for the Middle District of Pennsylvania held that"... a formal declaration of war is not necessary before it can be said that a condition of war exists ..."28 The Wyoming legislature passed its resolution twelve years ago. Mississippi and Rhode Island passed their resolutions eleven years ago. It might be contended by opponents of the movement to secure the income tax rate-limitation amendment that an unreasonable length of time has elapsed since passage of the resolutions by Wyoming, Mississippi and Rhode Island and, therefore, the resolutions passed by these three States no longer can be counted. Such an argument would be based partly on the holding in the case of Dillon v. Gloss-9 that Article V of the Constitution impliedly requires amendments submitted to be ratified within a reasonable time after proposal ; that the Congress may fix a reasonable time for ratification, and that the period of seven years fixed by the Congress was reasonable. However, the fallaciousness of this contention becomes apparent when we consider the following statement by Mr. Justice Van Devanter in the unanimous decision in the Dillon case: "... 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."30 Thus, the reasonable length of time necessary is the interval between proposal and ratification. The reasonable-length-of-time doctrine is inapplicable to the movement to secure the income tax rate-ceiling amendment as there has been no proposal as yet of such income tax rate-limitation amend2841 F. Supp. 954, 955 (1941). U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994 (1921). Ibid., at pp. 374, 375.

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ment. There can be no proposal until the Congress calls a convention, the convention proposes amendments and the Congress directs the mode of ratification. The foregoing contention by opponents of the movement to secure the income tax rate-ceiling amendment is also based on the dissenting opinion by Mr. Justice Butler,31 in which Mr. Justice McReynolds concurred,32 in 1938 in the case of Coleman v. Miller. Mr. Justice Butler was of the opinion that the thirteen years intervening between the time the Congress proposed the child Labor Amendment and the time the Kansas legislature ratified same constituted an unreasonable length of time. However, here again, in a dissenting opinion, as in the opinion of the Court in the Dillon case, the reasonable-length-of-time doctrine is measured from the time of proposal ; and until there is proposal, the doctrine is inapplicable. The question arises as to whether under the terms of Article V when thirty-two State legislatures pass resolutions memorializing the Congress to call a convention for 'f:he purpose of proposing constitutional amendments it is mandatory or discretionary with the Congress to call a convention. The authorities are in agreement that under such circumstances it is mandatory upon the Congress to call a convention. Professor Henry Rottschaef er stated that amendments ". . . may be proposed by Congress on its own initiative whenever two-thirds of both houses shall deem it necessary, or by a convention called for that purpose which Congress is required to call on application of the legislatures of two-thirds of the States."33 Professor Westel Woodbury Willoughby wrote as follows: "It would appear that the act thus required of Congress is a purely ministerial one in substance, if not in form, and the obligation to perform it is stated in imperative form by the Constitution."34 In the words of Article V "The Congress . .. on the application of the legislatures of two-thirds of the several States, shall call a convention proposing amendments." As long ago as 1816 it was held by Mr. Justice Story in Martin v. Hunters Lessee35 that the word "shall" imports the imperative and the mandatory. There are already outstanding enough State legislatures which have passed resolutions pertaining to other subject matter so that these added to the twenty-six State legislatures which have passed resolutions in favor of the income tax rate-limitation amendment make up the necessary two-thirds States which, according to the term of Article V, make it imperative for the Congress to call a convention. Before the 31307 U.S. 433, 470, 59 S.Ct. 972, 83 L.Ed. 1385 (1938). s2 Jbid., at p. 474. 33 ROTISCHAEFE.R, HANDBOOK OF AMERICAN CONSTITUTIONAL LAW 388 (West Pub. Co., St. Paul, 1939). 34 l WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES 597 (Baker, Woorhis & Co., N.Y., 1929).

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first State (Wyoming) legislature passed a resolution regarding an income tax rate-ceiling amendment in 1939, there were already outstanding thirty-six State legislatures which had passed resolutions memorializing the Congress to call a convention. The source for this statement is the compilation showing the applications made from time to time to the Senate by the legislatures of various States for the calling of a constitutional convention for the purpose of proposing certain amendments to the Constitution of the United States presented by Senator Tydings of Maryland during the second session of the seventy-first Congress in 1930.36 The compilation by Senator Tydings was recognized as authoritative, in the report to the New York Bar Association on December 31, 1930 by the Committee of Five (Henry W. Taft, Chairman, Wilbur F. Earp, Edward G. Griffin, Wesley H. Maider, Roscoe R Mitchell and Isaac R. Oeland) to Look into and Report on the General Proposals Pending in Congress to Amend the Federal Constitution as follows: "At the Second Session of the 71st Congress, however, Senator Tydings presented to the Senate a compilation showing all of the applications for the calling of a constitutional convention which had been made to Congress since the adoption of the Constitution. The statement was printed as Document No. 78. It seems to show that 36 ... states have filed petitions. Upon the information contained in Senator Tydings' statement our report is based." 37 However, since nine of the thirty-six States--Arkansas,38 Califomia,39 Kentucky,40 Minnesota,41 New Jersey,42 Pennsylvania,43 Utah,44 Maine,45 and Wyoming' 6-had passed only resolutions exclusively concerning the advocating of the direct election of United States Senators, the Seventeenth Admendment would seem to have negated the efficacy of the resolutions by these nine States and, therefore, to discount these nine States in the matter. This view is fortified by the following statement by Professor Lester Bernhardt Orfield: "In 1901 several legislatures petitioned for a convention to consider an amendment for "the popular election of Senators, and by 1909 twenty-six states had petitioned for that purpose. The adoption of the Seventeenth Admendment would perhaps destroy the effect of these petitions."47 This view is further fortified by the following excerpt 3514 U.S. 304, 4 L.Ed. 97 (1816). sa SEN. Doc. 78,r71st Cong., 2d Sess. 3174 CoNG. REc. 2924, 2925 (1931), 17 A.B.A.J. 143 (1931). 38 Ark. Laws, 1903, p. 483. a9 Cal. Stat., 1903, p. 682. 40 Ky. Acts, 1902, p. 394. 41 Minn. Laws, 1901, p. 676. 42 N.J. Laws, 1907, p. 736. 43 Penn. Laws, 1901, p. 860. 44 Utah Laws, 1903, p. 204. 45 Maine Laws, 1911. 46 Wyo. Laws, 1895, p. 298. 41 ORFIELD, THE AMENDING OF THE FEDERAL CONSTITUTION

Press, Ann Arbor, 1942).

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42, 43 (U. of Mich.

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from the report to the New York Bar Association on December 31, 1930 by the Committee of Five to Look into and Report on the General Proposals Pending in Congress to Amend the Federal Constitution: "The petitions for the election of senators by the direct vote of the people showed a widespread public opinion favorable to that change. But they were not numerous enough to make it mandatory upon Congress to call the convention, and Congress removed the necessity for the convention method by responding to the prevailing sentiment and itself proposed Amendment XVII, which was speedily ratified, the ratification being proclaimed by the Secretary of State on May 31, 1913. The Committee, therefore, is of the opinion that as the purpose in filing the petitions for the popular election of Senators was satisfied . . . they have become ineffective. If the same conclusion is doubtful concerning petitions requesting a convention for general purposes, it is sufficient to say that the deduction of those petitions relating exclusively to the popular election of Senators would reduce the number of petitioning states substantially below the required two-thirds." 48 Thus, the nine State legislatures which passed only resolutions exclusively dealing with the advocating of the popular election of United States Senators subtracted from the thirty-six State legislatures which passed various types of resolutions memorializing the Congress to call a convention plus the twenty-six States which passed resolutions pertaining to the income tax rate-limitation amendment is a total of fifty-three States. But, of course, several of the thirty-six States which passed diverse types of resolutions are among the twenty-six States which passed resolutions regarding the income tax rate-ceiling amendment. To be exact, this duplication exists on the part of thirteen StatesIowa, Michigan, Indiana, Delaware, Texas, Illinois, Wisconsin, Alabama, Nebraska, Louisiana, Montana, Nevada, and Kansas. These thirteen States subtracted from the previous total of fifty-three States is a total of forty States or eight more States than are required by the terms of Article V of the Constitution to make it imperative and mandatory upon the Congress to call a convention for the purpose of proposing amendments. A question which arises is whether resolutions which pertain to different subject matter can be counted together for the purpose of securing the necessary two-thirds States or only resolutions limited exclusively to the same subject matter can be counted together for the purpose of securing the requisite two-thirds States. The former view is the one accepted by the authorities. Professor Lester Bernhardt Orfield stated that: "A closely related problem is whether the requests must seek a convention for identical purposes. Should two-thirds of the •s Supra~ note 37.

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legislatures ask a convention for the purpose of a general revision or for the same specific purpose, there would be no difficulty. But when one legislature desires a convention for one purpose, as to prohibit polygamy, another legislature for another purpose, as to adopt the initiative and referendum, and a third legislature for a general purpose, there is some doubt whether the prerequisite for a call has been met. The better view would seem to be that the ground of the applications would be immaterial, and that a demand by two-thirds of the states would conclusively show a widespread desire for constitutional changes."49 Mr. Wayne B. Wheeler, writing in the Illinois Law Review, expressed the following opinion : ". . . the sufficiency of a general resolution asking for a convention is unquestionable. Even where thirty-two state legislatures made application for a convention, each requesting a different amendment it might be considered sufficient to call a convention on the ground that they conclusively showed a wide-spread demand for changes in government . . ." 50 A problem which presents itself is whether, in the event of failure or refusal on the part of the Congress to call a convention for proposing amendments and in the event that the pressure of public opinion should prove ineffective, the hand of the Congress can be forced in the matter. Under the foregoing circumstances an action at law of mandamus in the District Court of the United States would lie against every member of the Congress. For precedents there are the cases of State v. Town Council of South Kingstown.51 and Virginia v. West V:irginia. 52 In the former the Supreme Court of Rhode Island issued a writ of mandamus against a municipal quasi-legislative body and in the latter the Supreme Court of the United States held that it had the power to issue a writ of mandamus against the West Virginia legislature. In the former case the Supreme Court of Rhode Island stated that: ". . . the question is whether the case alleged is a proper one for the issue of a writ of mandamus. One office of mandamus is to enforce obedience to statute law. In general, it lies to compel all officers to perform ministerial duties, as well as to compel subordinate courts to perform judicial duties; but not to compel the exercise of discretion in any particular way. It is not contended that the duty of the town council in this matter is other than ministerial. Mandamus is peculiarly the proper remedy when other specific remedies are wanting. The remedy which a legislature can provide is to make a law applicable to the case. When the law is made, it is for the court to enforce it, or to punish for disobedience of it. In either function it must construe S1tpra, note 47. Wheeler, Is a Constitutional Convention Impending?, 21 ILL. L. REv. 782, 795 (1927). 51 27 A. 509, 22 L.R.A. 65 (1893). s2 246 U.S. 565, 603, 604, 38 S.Ct. 400, 62 L.Ed. 883 (1918). 49 50

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the statute, i.e. declare what it means. In the present case, if the law already made imposes a present duty, no further legislation would make it more imperative. Any legislative act designed as a remedy must impose ministerial duties upon individuals. The court must again be resorted to, to compel such individuals to perform those duties. So that in the last analysis this remedy by mandamus is the only specific and efficient one, and if it is not afforded there are no other means which can give to the electors the opportunity to exercise such rights as the law gives them." In the latter case the Supreme Court of the United States declared that: "The remedy sought, as we have at the outset seen, is an order in the nature of mandamus commanding the levy by the legislature of West Virginia of a tax to pay the judgment. Insofar as the duty to award that remedy is disputed merely because authority to enforce a judgment against a State may not affect state power, the contention is adversely disposed of by what we have said." Mr. Walter K. Tuller, writing in the North American Review, stated that: "Every officer, of whatever branch, is sworn to support and obey the Constitution, and it is the natural presumption, fully justified by our history, that none will refuse to obey its mandates as interpreted by that body whose function and duty it is to do so. "The form of remedy for compelling Congress to act would seem clearly to be a writ of mandamus. It is believed that such a proceeding may be instituted by any citizen. Every citizen of the country has a direct interest that the Constitution shall be obeyed, and that interest is none the less real and entitled to recognition and protection by the courts that it is not capable of financial computation. Indeed, the very fact that he has no other remedy serves rather, under the established principles governing its issuance, to emphasize his right to this writ. Since the Constitution does not confer original jurisdiction upon the Supreme Court to issue writs of mandamus (see Marbury vs. Madison, supra), it would be necessary to commence the action in the courts of the District of Columbia. It has been settled since the decision of Kendall vs. United States, supra, that those courts have jurisdiction to issue the writ of mandamus as an original proceeding. From the decision there an appeal can be taken to the Supreme Court of the United States."113

!la Tuller, A Convention to Amend the Constitution-Why Needed-How It May Be Obtained, 11 ·N. AMER. REv. 369, 382, 383 (1911).

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General Discussion

LESER v. GARNETT, 258 U.S. 130 (1922) Leser v. Garnett, 258 U.S. 130 (1922) (hereafter Leser) was delivered by Louis D. Brandeis, (Associate Justice 1916-39) and addressed whether the 19th Amendment granting women the right to vote had become part of the federal Constitution. Objections were raised that the ratification of the proposed amendment conflicted with statutory and constitutional provisions of several states which had ratified the amendment. Therefore, it was argued, ratification by these states Brandeis was invalid as the state laws or constitutional provisions nullified the ratification of the proposed amendment. In a concise two-page opinion the Court addressed three objections to ratification of the 19th Amendment and determined the objections meritless. The first objection raised was the power of the amendment, allowing women the vote, “destroys [the state’s] autonomy as a political body…if made without the state’s consent.” The Court stated the 15th Amendment, prohibiting disenfranchisement on the basis of race, color or previous condition of servitude, was similar in language to the 19th Amendment. The Court stated the same method of adoption used to ratify the 15th Amendment was also used to adopt the 19th Amendment. As one amendment was valid, the Court said, the other was valid. The second objection raised in Leser was that the constitutions of several of the 36 states named in the federal proclamation of ratification of the 19th Amendment by the Secretary of State rendered “inoperative the alleged ratifications by their Legislatures.” The Court stated, “The argument is that by reason of these specific provisions the Legislatures were without power to ratify.” The Court responded, “But 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.” This response reiterated the precedent-setting Hawke decision that neither state laws, nor state constitutional provisions, can affect the federal amendment process. The Court addressed the final objection; that the legislative procedures in two states, Tennessee and West Virginia rendered the ratifying resolutions of those two states inoperative. The Court noted “As the Legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.”

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Several conclusions can be drawn from the reasoning employed by the Court in Leser. First, equal protection under the law usually reserved to statute was extended by the Court to include constitutional provisions. The Court declared equal validity exists between all constitutional clauses. Unless specified in the Constitution therefore, no clause, nor its effect, is subservient to any other clause. The clause creating the convention is therefore not subservient to the clauses creating Congress or the states meaning neither may regulate the convention unless prescribed by the Constitution. The convention is therefore an independent, autonomous constitutional body. Its constitutional authority of amendment proposal and other reasonable powers associated with that task are neither subject to prior restraint nor redaction by Congress or the states except as prescribed in the Constitution. Therefore neither the states nor Congress may regulate the convention unless under the principle of equal protection such regulation equally applies to Congress and the states. Second, Leser concluded the subject matter (or “character”) of a proposed amendment has no bearing on the amendment process prescribed in Article V. Further, the Court determined no state law, process or constitutional provision can affect the amendment process. The Court noted the function of ratification, is a federal function derived from the federal Constitution. This function transcends any limitation sought be imposed on it by the people of a state. The function of amendment proposal is limited to two specified constitutional bodies: Congress and the convention. The Constitution does not empower states to propose amendments by any means including inserting proposed amendments in application language for a convention call as no amendment subject can affect the amendatory process of Article V. Article V does not describe subject matter as the basis for a convention call but instead requires a simple numeric count of applying states to cause a call regardless of any subject matter in their applications. Third, Leser affirmed states cannot nullify or rescind ratification of a proposed amendment once the state has so ratified. Ratification, the Court has stated, is the approbation by the people acting through their representatives, to affirm a proposed amendment as part of the Constitution. Each step of the amendment process requires deliberative representative affirmation before moving forward. These representatives cannot disavow the approbation of the people by any means such as state law, process or constitution. If federal constitutional clauses are equal, then parts of the same clause are equal. If approbation by the people prohibits nullification or rescission by representatives in one part of a clause how can these representatives nullify or rescind in another part of the same clause where no such discretion is described? The Court’s equal validity of constitutional clauses and its “federal function” determination rules out this possibility. Logically therefore, under the doctrine of equal protection, if states

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cannot rescind or nullify ratifications, they cannot rescind or nullify applications for a convention call. The process of ratification and application employed by the states is nearly identical and equally valid as they are both part of the same amendment process. The state legislatures, as representatives for the people, cite the identical constitutional authority for both amendment functions in the text of ratification and application messages. Both ratification and application messages are certified as an official state enactment. Both are recorded by the secretary of state of each state as official state record. Both ratification and application messages are transmitted to Congress. Both ratification and application are federal functions derived from the federal Constitution. Therefore both functions transcend any limitation sought to be imposed by the people of a state. Both application and ratification messages are recorded in the same congressional record. Therefore the two Article V functions are equal in source of authority, process, validity, transmission, verification, and constitutional effect. As the circumstance of language and purpose are similar this means both are equally valid and “conclusive” on the courts. Thus a court ruling interpreting ratification equally applies to application. Moreover the question of rescission of applications is moot. As the examination of the full record of applications shows the states achieved the two-thirds requirement long before any state attempted any nullification of a previous application. The record also shows three amendment issues have achieved the required two-thirds count on their own merits meaning even if subject matter of an amendment were the correct standard, the states have already satisfied it three times over. As admitted by Congress in 1930 there is no question that once the two-thirds numeric count of applying states is reached, Congress is peremptorily required to call a convention. This peremptory requirement, by definition, excludes all excuses which might otherwise thwart a convention call. This includes rescission of applications meaning such rescissions can have no effect on the constitutional obligation of Congress. The fact time has passed since the peremptory event occurred does not diminish the obligation or its exclusion as contemporaneousness has no bearing on the amendatory process as no such standard can be attached until Congress calls a convention and an actual amendment is proposed by a convention. The Constitution also addresses the issue of nullification or rescission of applications. The Tenth Amendment prohibits the states from nullifying a federal record. The Constitution expressly assigns Congress the responsibility and authority to keep a record of proceedings, referred to as a “Journal.” The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Article 1, Section 5, Clause 3 requires “each house” of Congress keep a Journal of its proceedings and from time to time publish this Journal. As explained earlier in this Appendix, Madison and other

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members of Congress, beginning with the submission of the first application for a convention call in 1789 established all applications be recorded in the Journal, now known as the Congressional Record, a process which continues to this day. As the Tenth Amendment expressly assigns the “power” of keeping a journal to Congress such power is excluded from the states and the people. Therefore any record entered in that record cannot be modified, nullified or otherwise affected by the states or by any subsequent action of the states unless Congress accepts the theory that, contrary to the express text of the Constitution, states have the right to nullify federal record. All actions of Congress, whether they are a record of a state application or the creation of federal law, ultimately, are federal record. If the theory of state nullification of federal record for this type of federal record is valid, then that theory, particularly as the courts have repeatedly ruled states operate under the federal Constitution and derive their power to function from that document, must exist within the Constitution and extend to all federal records. The states therefore can nullify any federal record including federal law for whatever the reason the state wishes. Yet the courts have repeatedly ruled no such power exists in the Constitution. The only conclusion possible is the theory of nullification is unconstitutional particularly in the case of applications for a convention as such rescission is expressly prohibited by constitutional text. Moreover as the Court expressed in Leser, where a ratification vote is certified by the secretary of state of the state in question and is certified as representing an official action on the part of the state legislature the Court has repeatedly stated such act becomes “conclusive on the courts.” Under such circumstances the Court has refused to grant a state the right to rescind its ratification vote. As applications for a convention also are certified by the secretary of state of the state under the principle of equal protection of law it is reasonable to assert if an application by a state for a convention call has been certified by a secretary of state or other comparable state official it cannot be rescinded as Article V describes no process of rescission of state applications or ratifications. The repeated actions of the Court to refuse to engage where the opportunity is repeatedly presented, clearly establishes the Court views the ratification, and therefore the application process, as a one-way street allowing for submission of applications and ratifications by the states but once executed, unable to be withdrawn by the states.

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U.S. Supreme Court LESER v. GARNETI, 258 U.S. 130 (1922) 258 U.S.130 LESER et al.

v. GARNEIT et al. No. 553. Argued Jan. 24, 25, 1922. Decided Feb. 27, 1922. [258 U.S. 130, 131] Messrs. Thomas F. Cadwalader and Wm. L. Marbury, both of Baltimore, Md., for

plaintiffs in error. [258 U.S. 130, 135] Mr. G. M. Brady, of Baltimore, Md., for defendants in error Caroline Roberts and

others. Mr. Alexander Armstrong, of Baltimore, Md., for other defendants in error. Mr. Justice BRANDEIS delivered the opinion of the Court. On October 12, 1920, Cecilia Streett Waters and Mary D. Randolph, citizens of Maryland, applied for and were granted registration as qualified voters in Baltimore City. To have their names stricken from the list Oscar Leser and others brought this suit in the court of common pleas. The only ground of disqualification alleged was that the applicants for registration were women, whereas the Constitution of Maryland limits the suffrage to men. Ratification of the proposed amendment to the federal [258 U.S. 130, 136] Constitution, now known as the Nineteenth, 41 Stat. 362, had been proclaimed on August 26, 1920, 41 Stat. 1823, pursuant to Revised Statutes, 205 (Comp. St. 303). The Legislature of Maryland had refused to ratify it. The petitioners contended, on several grounds, that the amendment had not become part of the federal Constitution. The trial court overruled the contentions and dismissed the petition. Its judgment was affirmed by the Court of Appeals of the state (Md.) 114 Atl. 840; and the case comes here on writ of error. That writ must be dismissed; but the petition for a writ of certiorari, also duly filed, is granted. The laws of Maryland authorize such a suit by a qualified voter against the board of registry. Whether the Nineteenth Amendment has become part of the federal Constitution is the question presented for

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decision. The first contention is that the power of amendment conferred by the federal Constitution and sought to be exercise does not extend to this amendment because of its character. The argument is that so great an addition to the electorate, if made without the state's consent, destroys its autonomy as a political body. This amendment is in character and phraseology precisely similar to the Fifteenth. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the Fifteenth is valid, although rejected by six states, including Maryland, has been recognized and acted on for half a century. See United States v. Reese, 92 U.S. 214 ; Neale v. Delaware, 103 U.S. 370 ; Guinn v. United States, 238 U.S. 347 , 35 Sup. Ct. 926, L. R. A. 1916A, 1124; Myers v. Anderson, 238 U.S. 368 , 35 Sup. Ct. 932. The suggestion that the Fifteenth was incorporated in the Constitution, not in accordance with law, but practically as a war measure which has been validated by acquiescence, cannot be entertained. The second contention is that in the Constitutions of several of the 36 states named in the proclamation [258 U.S. 130, 137] of the Secretary of State there are provisions which render inoperative the alleged ratifications by their Legislatures. The argument is thst by reason of these specific provisions the Legislatures were without power to ratify. But 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. Hawke v. Smith, No. 1, 253 U.S. 221 , 40 Sup. Ct. 495, 10 A. L. R. 1504; Hawke v. Smith, No. 2, 253 U.S. 231 , 40 Sup. Ct. 498; National Prohibition Cases, 253 U.S. 350, 386 , 40 S.Sup.Ct.486,588. The remaining contention is that the ratifying resolutions of Tennessee and of West Virginia are inoperative, because adopted in violation of the rules of legislative procedure prevailing in the respective states. The question raised may have been rendered immaterial by the fact that since the proclamation the Legislatures of two other states-Connecticut and Vermont-have adopted resolutions of ratification. But a broader answer should be given to the contention. The proclamation by the Secretary certified that from official documents on file in the Department of State it appeared that the proposed amendment was ratified by the Legislatures of 36 states, and that it 'has become valid to all intents and purposes as a part of the Constitution of the United States.' As the Legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts. The rule declared in Field v. Clark, 143 U.S. 649 , 669-673, 12 Sup. Ct. 495, is applicable here. See, also Harwood v. Wentworth, 162 U.S. 547, 562 , 16 S. Sup. Ct. 890 Affirmed.

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UNITED STATES v. SPRAGUE, 282 U.S. 716 (1931) Owen Josephus Roberts, (Associate Justice 1930-45), delivered the opinion of the Court in United States v. Sprague, 282 U.S. 716 (1931) (hereafter Sprague). The issue before the Court was whether criminal charges brought against alleged bootleggers for illegal transportation and sale of intoxicating liquors were valid. Appellees argued the 18th Amendment had been improperly ratified as ratification was by state legislature rather than state ratification conventions. Appellees argued the amendment subject, Roberts prohibition—prohibiting the right of the people to consume alcohol, dictated by which means ratification must occur. Appellees argued removal of a right could only occur if the people themselves consented. This, they said, could only be accomplished in elected state ratification conventions as state legislatures were “incompetent” to do this. As Congress had not chosen this method of ratification, appellees asserted the amendment was invalid. Therefore any federal law derived from the authority of that amendment was also invalid. Appellees therefore could not be convicted under that law. Appellees’ argument permitted the Court the opportunity to explore the amendatory process of Article V in detail. The Court began by examining the amendatory proposal process. It then applied these findings as grounds for its ratification conclusions. Sprague contains no discriminatory language separating proposal conclusions from ratification or mode of proposal from mode of ratification; the grounds are common to both and therefore apply equally. For a second time in the Court’s history, (the first time in Leser v. Garnett), appellees argued subject matter (or “character”) of a proposed amendment affects execution of the amendment process, i.e., how, when or if a part of the amendatory process is executed. Speaking for a unanimous Court, Justice Roberts wrote: “They [appellees] say that it was the intent of the framers, and the Constitution must, therefore, be taken impliedly to require, that proposed amendments conferring on the United States new direct powers over individuals shall be ratified in conventions; and that the Eighteenth is of this character. They reach this conclusion from the fact that the framers thought that ratification of the Constitution must be by the people in convention assembled and not by legislatures, as the latter were incompetent to surrender the personal liberties of the people to the new national government. From this and other considerations, hereinafter noticed, they ask

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us to hold that article 5 means something different from what it plainly says. … “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses; or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them.” Neither the appellees nor the Court excluded the convention application process or the convention proposal process in their arguments to the Court or in the adjudication by the Court. The Court was emphatic and unequivocal. It included all the amendatory proposal process in its statement “Article V contains no ambiguity and calls for no resort to rules of construction.” The Court did not say “except in the case of convention applications in which case the subject matter of the application affects execution of the process.” Leser and Sprague are explicit: the subject (or “character”) of an amendment has no bearing on the amendment process. It must therefore be disregarded by Congress, the courts and the states when executing any portion of that process including the convention process as well as the application process. Sprague further states: “The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, point out that amendments may be of different kinds, as e.g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be ratified by legislatures, since the States as entities would be wholly competent to agree to such alterations whereas they intended that the latter must be referred to the people because not only of lack of power in the legislatures to ratify, but also because of doubt as to their truly representing the people. … In spite of the lack of substantial evidence as to the reasons for the changes in statement of article 5 from its proposal until it took final form in the finished draft, they seek to import into the language of the article dealing with amendments, the views of the convention with respect to the proper method of ratification of the instrument as a whole. … Thus however, clear the phraseology of article 5, they urge we ought to insert into it a limitation on the discretion conferred on the Congress, so that it will read, ‘as the one or the other mode of ratification may be proposed by the Congress, as may be appropriate in view of the purpose of the proposed amendment.’ This can not be done.”

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The Court emphatically stated the “final form of article 5” is the only basis for determination of its meaning rather than any earlier versions of that article discussed by the 1787 Federal Convention. Therefore any earlier draft of Article V which contained language allowing states to propose amendments for example, is irrelevant as the final version of Article V does not describe such authority. Thus, according to the Court only what was ratified by representative approbation of the people as finally proposed by the convention has any bearing on the meaning or intent of Article V. The Court stated: “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary and distinguished from technical meaning; where the intention is clear there is no room and no excuse for interpolation or addition. Martin v. Hunter’s Lessee, 1 Wheat. 304; gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Craig v. Missouri, 4 Pet. 410; Tennessee v. Whitworth, 17 U.S. 139, 6 S. Ct. 649; Lake County v. Rollins, 13 U.S. 662, 9 S. Ct. 651; Hodges v. United States, 203 U.S. 1, 27 S. Ct. 6; Edwards v Cube R. Co., 268 U.S. 628, 45 S. Ct. 614; The Pocket Veto Case, 279 U.S. 655, 49 S. Ct. 463; Story on the Constitution (5th Ed.) 451; Cooley’s Constitutional Limitations 2d Ed.) pp.61, 70.” Based on a long line of precedent, the Court emphatic statement of “no rules of construction, interpolation or addition” terminated all theories (such as “same subject”, “contemporaneousness”, “rescission” et.al.) which depend for validity on either inference or additional textual conditions not found in Article V either to condition a convention call or enable regulation of a convention. As with all other amendatory decisions the Court did not discriminate between modes of ratification or modes of proposal—the sweeping prohibition encompasses all of Article V. The text of Article V as it reads and states is the sole basis for any term, condition or circumstance of an Article V Convention or call. Further, Sprague resolved finally any question of congressional use of the “necessary and proper” clause as a basis of authority to regulate the convention. As discussed earlier Hollingsworth banned the president from any participation in the “proposition” of amendments—including review of any legislation aimed at regulating a convention as delegate selection, agenda, proposed amendment language and so forth. However, the portion of the necessary and proper clause granting Congress legislative power to “all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” was unaffected by Hollingsworth. The Court terminated this oversight in the “necessary and proper” clause by stating, “The fifth article does not purport to delegate any governmental power to the United States, nor to withhold any from it.” Thus the Court found Article V does not vest any power in the Government of the United States nor in any department or officer thereof removing any possibility of the necessary and

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proper clause being used by Congress to legislatively regulate a convention or any part of the amendatory process. The Sprague decision makes several points clear about an Article V Convention. The most important is the Court viewed the convention and the congressional proposal process as synonymous that is, rules or interpretation applied to one equally apply to the other. Second, the Court rejected any question of ambiguity surrounding Article V meaning Article V’s direct text as is normally read dictates the amendment process. Third, the Court emphatically stated unless expressed in Article V by actual text, no inference exists meaning no theory which depends on such inference is valid as it requires insertion of words into Article V which cannot be permitted. Fourth, the Court rejected any proposition of amendment subject matter (or “character”) influencing the amendment process in any respect. Fifth, the Court stated the convention, not the states, proposes amendments. Sixth, the Court stated a convention proposes amendments and cannot be limited to a single amendment proposal except by restraint of the convention itself. Seventh, in combination with Hollingsworth the Court eliminated any possibility of Congress using the “necessary and proper” clause to legislatively control the convention. Eighth, the Court rejected any proposition that earlier versions of Article V drafted in the 1787 Federal Convention or any other form of ratification contained in the Constitution have any bearing on the amendment process meaning only the final language of Article V is relevant to that process. Ninth, the Court reaffirmed no mode of amendment may occur except by representative approbation of the people meaning any attempt to propose or ratify an amendment without approbation of the people is unconstitutional. Tenth, the Court established that whatever is ruled in ratification by the Court equally applies in proposal and visa versa; further the Court held that a ruling in one mode of the amendment process applies to all modes of the process.

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U.S. Supreme Court UNITED STATES v. SPRAGUE, 282 U.S. 716 (1931) 282 U.S. 716

UNITED STATES

v. SPRAGUE et al.

No. 606.

Argued Jan. 21, 1931. Decided Feb. 24, 1931. Messrs. Thomas D. [282 U.S. 716, 717] Thacher, Sol. Gen., of Washington, D. C., G. A. Youngquist, Asst. Atty. Gen., and Robert P. Reeder, John J. Byrne, Mahlon D. Kiefer, and Erwin N. Griswold, all of Washington, D. C., for the United States. [282 U.S. 716, 719] Messrs. Julius Henry Cohen and Selden Bacon, both of New York City, for appellees. [282 U.S. 716, 729] Mr. Justice ROBERTS delivered the opinion of the Court. The United States prosecutes this appeal from an order of the District Court (U. S. C. tit. 18, 682; tit. 28, 345 (18 USCA 682; 28 USCA 345)), quashing an indictment which charged appellees with unlawful transportation and possession of intoxicating liquors in violation of section 3 of title 2 of the National Prohibition Act (U. S. C. tit. 27, 12 (27USCA12)). $That court held that the Eighteenth Amendment by authority of which the statute was enacted has not been ratified so as to become part of the Constitution. The appellees contended in the court below, and here, that notwithstanding the plain language of article 5, conferring upon the Congress the choice of method of ratification, as between action by legislatures and by conventions, this Amendment could only be ratified by the latter. They say that it was the intent of its framers, and the Constitution must, therefore, be taken impliedly to require, that proposed amendments conferring on the United States new direct powers over individuals shall be ratified in conventions; and that the Eighteenth is of this character. They reach this conclusion from the fact that the framers thought that retification of the Constitution must be by the people in

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convention assembled and not by legislatures, as the latter were incompetent to surrender the personal liberties of the people to the new na- [282 U.S. 716, 730] tional government. From this and other considerations, hereinafter noticed, they ask us to hold that article 5 means something different from what it plainly says. In addition they urge, that if there be any doubt as to the correctness of their construction of article 5, the Tenth Amendment removes it. The District Court refused to follow this reasoning. It quashed the indictment, not as a result of analysis of article 5 and Amendment 10, but by resorting to 'political science,' the 'political thought' of the times, and a 'scientific approach to the problem of government.' These, it thought, compelled it to declare the convention method requisite for ratification of an amendment such as the Eighteenth. The appellees do not attempt to justify the lower court's action by the reasons it states, but by resubmitting to us those urged upon that court and by it rejected. The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules ofcon struction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses; or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them. Amendments proposed in either way become a part of the Constitution, 'when ratified by the Legislatures of three-fourths of the several States or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress .... ' The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, point out that amendments may be of different kinds, as e. g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the [282 U.S. 716, 731] framers of the Constitution expected the former sort might be ratified by legislatures, since the States as entities would be wholly competent to agree to such alterations, whereas they intended that the latter must be referred to the people because not only oflack power in the legislatures to ratify, but also because of doubt as to their truly representing the people. Counsel advert to the debates in the convention which had to do with the submission of the draft of the Constitution to the legislatures or to conventions, and show that the latter procedure was overwhelmingly adopted. They refer to many expressions in contemporary political literature and in the opinions of this court to the effect that the Constitution derives its sanctions from the people and from the people alone. In spite of the lack of substantial evidence as to the reasons for the changes in statement of article 5 from its proposal until it took final form in the finished draft, they seek to import into the language of the article dealing with amendments, the views of the convention with respect to the proper method of ratification of the instrument as a whole. They say that if the legislatures were considered incompetent to surrender the people's liberties when the ratification of the Constitution itself was involved, a fortiori they are incompetent now to make a further grant. Thus, however, clear the phraseology of article 5, they urge we ought to insert into it a limitation on the discretion conferred on the Congress, so that it will read, 'as the one or the other mode of ratification may be proposed by the Congress, as may be appropriate in view of the purpose of the proposed amendment.' This can not be done. The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention in clear there is no room for construction and no excuse for interpolation or addition. Martin [282 U.S. 716, 732] v. Hunter's

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Lessee, 1 Wheat. 304; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Craig v. Missouri, 4 Pet. 410; Tennessee v. Whitworth, 117 U.S. 139 , 6 S. Ct. 649; Lake County v. Rollins, 130 U.S. 662 , 9 S. Ct. 651; Hodges v. United States, 203 U.S. 1 , 27 S. Ct. 6; Edwards v. Cuba R. Co., 268 U.S. 628 , 45 S. Ct. 614; The Pocket Veto Case, 279 U.S. 655 , 49 S. Ct. 463; Story on the Constitution (5th Ed.) 451; Cooley's Constitutional Limitations (2d Ed.) pp. 61, 70.

If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler that so to phrase article 5 as to exclude implication or speculation. The fact that an instrument drawn with such meticulous care and by men who so well understood now to make language fit their thought does not contain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidece that no qualification was intended. This Court has repeatedly and consistently declared that the choice of mode rests solely in the discretion of Congress. Dodge v. Woolsey, 18 How. 331, 348; Hawke v. Smith (No. 1), 253 U.S. 221 , 40 S. Ct. 495, 10 A. L. R. 1504; Dillon v. Gloss, 256 U.S. 368 , 41 S. Ct. 510; National Prohibition Cases, 253 U.S. 350 , 40 S.

Ct. 486, 488. Appellees urge that what was said on the subject in the first three cases cited is dictum. And they argue that although in the last mentioned it was said the 'Amendment, by lawful proposal andratification, has become a part of the Constitution,' the proposition they now present was not before the Court. While the language used in the earlier cases was not in the strict sense necessary to a decision, it is evident that article 5 was carefully examined and that the Court's statements with respect to the power of Congress in proposing the mode of ratifi- [282 U.S. 716, 733] cation were not idly or lightly made. In the National Prohibition Cases, as shown by the briefs, the contentions now argued were made-the only difference between the presentation there and here being one of form rather than of substance. The Tenth Amendment provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' Appellees assert this language demonstrates that the people reserved to themselves powers over their own personal liberty, and that the legislatures are not competent to enlarge the powers of the federal government in that behalf. They deduce from this that the people never delegated to the Congress the unrestricted power of choosing the mode of ratification of a proposed amendment. But the argument is a complete non sequitur. The fifth article does not purport to delegate any governmental power to the United States, nor to withhold any from it. On the contrary, as pointed out in Hawke v. Smith (No. 1), supra, that article is a grant of authority by the people to Congress, and not to the United States. It was submitted as part of the original draft of the Constitution to the people in conventions assembled. They deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification. The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the states or to the people. It added nothing to the instrument as originally ratified and has [282 U.S. 716, 734] no limited and special operation, as is contended, upon the people's delegation by article 5 of certain functions to the Congress. The United States relies upon the fact that every amendment has been adopted by the method pursued in

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respect of the Eighteenth. Appellees reply that all these save the Eighteenth dealt solely with governmental means and machinery rather than with the rights of the individual citizen. But we think that several amendments touch rights of the citizens, notably the Thirteenth, Fourteenth, Fifteenth, Sixteenth and Nineteenth, and in view of this, weight is to be given to the fact that these were adopted by the method now attacked. The Pocket Veto Case, supra. For these reasons we reiterate what was said in the National Prohibition Cases, supra, that the 'Amendment, by lawful proposal and ratification, has become a part of the Constitution.' The order of the court below is reversed. The CHIEF JUSTICE took no part in the consideration or decision of this case.

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UNITED STATES v. CHAMBERS, 291 U.S. 217 (1934) Charles Evans Hughes, Sr. (Chief Justice 1930-41; Secretary of State, 1921-25; Associate Justice 1910-16) delivered the opinion of the Court in United States v. Chambers (hereafter Chambers). The issue before the Court was whether federal law authorized by an amendment to the Constitution could continue in effect if the amendment in question had been repealed. As with many of the Hughes cases before the Court concerning the amendatory process, this involved prohibition of the consumption of alcoholic beverages by the 18th Amendment and its subsequent repeal by the 21st Amendment. The specifics of the case involved two men Clause Chambers and Byrum Gibson who were charged on June 5, 1933 with violation of the National Prohibition Act. Trail for the men was deferred until December 6, 1933. On December 5, 1933, “ratification of the Twenty-First Amendment of the Constitution of the United States, which repealed the Eighteenth Amendment, was consummated. …” The Court was explicit: “Upon the ratification of the Twenty-First Amendment, the Eighteenth Amendment at once became inoperative. Neither the Congress nor the courts could give it continued vitality. The National Prohibition Act, to the extent that its provisions rested upon the grant of authority to the Congress by the Eighteenth Amendment, immediately fell with the withdrawal by the people of the essential constitutional support. … The continuance of the prosecution of the defendants after the repeal of the Eighteenth Amendment … would involve an attempt to continue the application of the statutory provisions after they had been deprived of force.” The Court cited several examples where it had ruled once a law was repealed “no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force…” The government, which was requesting the Court allow prosecution of the defendants after repeal of the 18th Amendment then argued: “the general saving provision enacted by the Congress in relation to the repeal of statutes … to the effect that penalties and liabilities theretofore incurred are not to be extinguished by the repeal of a statute ‘unless the repealing Act shall so expressly provide,’ and to support prosecution in such cases the statute is to be treated as remaining in force.”

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The Court disagreed stating: “But this provision applies, and could only apply, to the repeal of statutes by the Congress and to the exercise by the Congress of its undoubted authority to qualify its repeal and thus to keep in force its own enactments. … Congress however is powerless to expand or extend its constitutional authority. The Congress, while it could propose, could not adopt the constitutional amendment or vary the terms or effect of the amendment when adopted. … The National Prohibition Act was not repealed by act of Congress, but was rendered in operative, so far as authority to enact its provisions was derived from the Eighteenth Amendment, by the repeal, not by the Congress but by the people, of that amendment. … Over the matter here in controversy, power has not been granted but has been taken away. The creator of the Congress has denied to it the authority it formerly possessed, and this denial, being unqualified necessarily defeats any legislative attempt to extend that authority. … The question is not one of public policy which the courts may be considered free to declare, but of the continued efficacy of legislation in the face of controlling action of the people, the source of the power to enact and maintain it. … The law here sought to be applied was deprived of force by the people themselves as the inescapable effect of their repeal of the Eighteenth Amendment. The principle involved is thus not archaic, but rather is continuing and vital-that the people are free to withdraw the authority they have conferred and, when withdrawn, neither the Congress nor the courts can assume the right to continue to exercise it.” Chambers addresses three significant points about the convention in the Chambers ruling. First, Chambers clarified the Hollingsworth/Sprague decision regarding legislative control of a convention by Congress, the states having been eliminated by Hawke which declared states operate under the federal constitution when involved in the amendment process not state constitutions. Therefore state laws attempting to regulate a convention are unconstitutional. No text in the Constitution authorizes either Congress or the states to legislatively control a convention. Hence neither body may do so. If Congress were to assume such power it is an expansion of constitutional authority. This can only occur, according to the Chambers decision, if the people, by representative approbation, give consent in the form of an amendment authorizing either the states, Congress or both to regulate the convention. These four decisions settle the question of whether the convention is constitutionally equal to Congress or subservient to it and it is instead the states which possess the authority in contradiction of the plain language of Article V assigning the proposal of amendments to the convention.

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Many people have suggested the states possess this authority including Edwin Meese III (Attorney General 1985-88) who released a Department of Justice report in 1987 asserting the convention was subservient to Congress and the states had authority to propose amendments. The report however did not discuss the rulings of Hollingsworth, Hawke, Sprague and Chambers which Meese collectively repudiate that proposition. Given the support of these Court rulings the only possible conclusion is the convention, rather than the states, is constitutionally equal to Congress in so far as the proposal of amendments.[See:https://www.ncjrs.gov/App/publications/abstract.aspx?ID= 115134]. Second the Court, without equivocation, accepted the people, acting though representative approbation, can remove previously granted authority in the Constitution by amendment. The Court stated the Article V proposing body, does not the right to impose such change on its own authority (“The Congress, while it could propose, could not adopt the constitutional amendment or vary the terms or effect of the amendment when adopted.”). As with all previous decisions, the Court did not discriminate between Congress and convention. Therefore the Court determined neither proposing body may impose change in the Constitution on its own authority. With this determination the Court interposed a second guarantee beyond the three-fourths ratification process of Article V. The Court expressly ruled any power granted the government by the people may be withdrawn by the people. The Chambers ruling is emphatic: once repeal is “consummated” any authority derived from that portion of the Constitution immediately terminates including any statutes enacted by Congress whether or not they contain a savings clause, the action of constitutional repeal being paramount to legislative enactment. The ruling Mr. President underscores a constitutional protection not addressed by convention opponents—the right of the people to repeal prior amendments. With this authority the people can always correct any amendment a convention proposes—even if ratified—as the people can always repeal that amendment. Third, while the Court did not directly address the issue of a “runaway convention” its decision nevertheless repudiated this allegation. This claim traces its roots to the 1980’s when the John Birch Society (hereafter JBS) created it as part of its opposition propaganda to a convention call. JBS claims if a “constitutional convention” is called it will become a “runaway convention.” JBS believes a “constitutional convention”—a term not found in the Constitution—and an Article V Convention are synonymous. JBS, of course, ignores the language of Article V and numerous Court rulings describing that language which repudiate this contention.

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According to JBS this “constitutional convention” will “remove our rights and write a new Constitution.” The “runaway convention” allegation of JBS is based on their assertion 1787 Federal Convention delegates “exceeded their authority given them by the [Articles of Confederation] congress to revise the Articles of Confederation and instead wrote a new constitution thus becoming a “runaway” convention.” [See: http://www.jbs.org/legislation/the-ultimateargument-against-an-article-v-constitutional-convention]. In actual fact Mr. President what the JBS is actually doing is accusing the 1787 Federal Convention, which included two future presidents (Washington and Madison) and numerous prominent figures of American history of committing an act of insurrection against the Confederation government. There is no difference between an act of insurrection today and one committed in 1787. Black’s Law Dictionary defines insurrection as, “…any combined resistance to the lawful authority of the state, with intent to cause the denial thereof…” The Confederation was quite aware of what illegal acts constituted insurrection. Several insurrections occurred (e.g. Shay’s Rebellion) during the few years of the Confederation’s existence. Obviously, plotting, creating and attempting to replace the current form of government with a different form of government is insurrection unless such alteration is supported by legal process within the existing government in which case the terms “insurrection” nor “runaway convention” can attach. As you know Mr. President, there is no record of any 1787 Federal Convention delegates being charged with insurrection (or similar crime) as a result of his participation in or subsequent public advocacy of the 1787 Federal Convention proposal. The fact no charges, state or national, were ever levied against any delegate, that no such charge was publicly expressed by anyone including opponents to the Constitution against convention delegates, irrefutably prove the JBS allegation of “runaway convention” entirely unsubstantiated. Further the records of the debate in Congress prove while some members of Congress objected to the proposed Constitution, motions declaring the actions of the convention in violation of the Articles of Confederation were soundly defeated.[See:https://mywebspace.wisc.edu/groups/History/web/csac/ confederation/confederation/Confederation%20Congress%20and% 20the%20 Constitution.pdf; http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field (DOCID+@lit(jc03343));http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw: @field(DOCID+@lit(jc03344));http://memory.loc.gov/cgi-bin/query/r?ammem/ hlaw: @field(DOCID+@lit(jc03345))]. Given these facts the only conclusion is the 1787 Federal Convention proposal was entirely in compliance with the laws of the Articles of Confederation as well as state laws. Thus the convention was legal as was its proposed constitution. The methodology employed to ratify the Constitution and replace the Articles of Confederation as law of the land was equally legal. Any anxiety about a

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“runaway convention” is groundless as the alleged event never occurred in the first place. The Chambers declaration that the proposing body (convention or Congress) cannot, on its own authority, adopt, vary or effect the Constitution dispensed with the JBS allegation of a “runaway convention” occurring today when an Article V Convention is called. Moreover the Court has repudiated the JBS charges in several of its rulings. Among these the Court ruled in Sprague no addition or interpolation of Article V language is permitted. Thus the text describing the Article V Convention as a “convention for proposing amendments…as part of this Constitution” clearly limits the scope and purpose of the convention to the proposal of amendments to our present Constitution and does not authorize the convention to “write a new Constitution.” As the term “constitutional convention” does not exist in the Constitution the Sprague ruling reduces the JBS charge to inaccurate political rhetoric having nothing to do with the Constitution. As to the charge of a convention removing any right currently enjoyed by the people, an examination of the 746 applications from the 49 states shows not one application requests removal of a single constitutional right of the people. Indeed several applications seek to increase the rights of the people. The Court has never expressed any constitutional reservations about the convention in any decision concerning the amendment process. It has included the convention process in all rulings without discrimination. The Court has repeatedly stated Congress must call the convention if the states apply in proper number thus clearly supporting the constitutionality of the convention process of amendment proposal. In spite of all Court rulings to the contrary JBS nevertheless urges Congress not obey Article V, disobey the Court rulings and not call a convention when mandated by state applications. JBS therefore urges members of Congress commit an act of insurrection against the United States Government by disobeying the clear directive of Article V. The problem is Mr. President; it appears Congress has done just that.

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U.S. Supreme Court UNITED STATES v. CHAMBERS, 291 U.S. 217 (1934) 291U.S.217 UNITED STATES

v. CHAMBERS et al.

No. 659. Argued Jan. 16, 17, 1934. Decided Feb. 5, 1934. Appeal from the District Court of the United States for the Middle District of North Carolina. [291 U.S. 217, 218] Mr. J. Crawford Biggs, Sol. Gen., of Washington, D.C., for the United states. [291 U.S. 217, 221] Messrs. Z. I. Walser, of High Point, N.C., and William M. Hendren, of Winston-Salem, N.C., for appellees. Mr. Chief Justice HUGHES delivered the opinion of the Court. Clause Chambers and Byrum Gibson were indicted in the District Court for the Middle District of North Carolina for conspiring to violate the National Prohibition Act, and for possessing and transporting intoxicating liquor contrary to that act, in Rockingham county in that state. The indictment was filed on June 5, 1933. Chambers pleaded guilty, but prayer for judgment was continued until the December term. On December 6, 1933, the case was called for trial as to Gibson. Cham- [291 U.S. 217, 222] bers then filed a plea in abatement, and Gibson filed a demurrer to the indictment, each upon the ground that the repeal of the Eighteenth Amendment of the Federal Constitution deprived the court of jurisdiction to entertain further proceedings under the indictment. The District Judge sustained the contention and dismissed the indictment. The government appeals. 18 U.S.C. 682 (18 USCA 682). This Court takes judicial notice of the fact that the ratification of the Twenty-First Amendment1 of the Constitution of the United States, which repealed the Eighteenth Amendment, was consummated on December 5, 1933. Dillon v. Gloss, 256 U.S. 368 , 41 S.Ct. 510. Upon the ratification of the Twenty-First Amendment, the Eighteenth Amendment at once became inoperative. Neither the Congress nor the courts

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could give it continued vitality. The National Prohibition Act, to the extent that its provisions rested upon the grant of authority to the Congress by the Eighteenth Amendment, immediately fell with the withdrawal by the people of the essential constitutional support. The continuance of the prosecution of the defendants after the repeal of the Eighteenth Amendment, for a violation of the National Prohibition Act (27 USCA) alleged to have been committed in North Carolina, would involve an attempt to continue the application of the statutory (291 U.S. 217, 223] provisions after they had been deprived of force. This consequence is not altered by the fact that the crimes in question were alleged to have been committed while the National Prohibition Act was in effect. The continued prosecution necessarily depended upon the continued life of the statute which the prosecution seeks to apply. In case a statute is repealed or rendered inoperative, no further proceedings can be had to enforce it in pending prosecutions unless competent authority has kept the statute alive for that purpose. The decisions of this Court afford abundant illustration of this principle. In Yeaton (The General Pinkney) v. U.S., 5 Cranch, 281, 283, where the statute under which a ship had been condemned in admiralty had expired while the case was pending on appeal, the Court held that the cause was to be considered as if no sentence had been pronounced. Chief Justice Marshall said that 'it has long been settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.' Chief Justice Taney observed in Maryland v. Baltimore & Ohio R.R. Co., 3 How. 534, 552: 'The repeal of the law imposing the penalty, is of itself a remission.' In United States v. Tynen, 11 Wall. 88, 95, the Court thus stated the principle applicable to criminal proceedings: 'There can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offence be at the time in existence. By the repeal the legislative will is expressed that no further proceedings be had under the act repealed.' See, also, Norris v. Crocker, 13 How. 429, 440; Gulf, Colorado & Santa Fe Rwy. Co. v. Dennis, 224 U.S. 503, 506 , 32 S.Ct. 542. The government endeavors to avoid the application of this established principle by invoking the general saving provision enacted by the Congress in relation to the [291 U.S. 217, 224] repeal of statutes. That provision is to the effect that penalties and liabilities theretofore incurred are not to be extinguished by the repeal of a statute 'unless the repealing Act shall so expressly provide,' and to support prosecutions in such cases the statute is to be treated as remaining in force. Rev. St. 13 (1 U.S.C. 29 (1 USCA 29)).2 But this provision applies, and could only apply, to the repeal of statutes by the Congress and to the exercise by the Congress of its undoubted authority to qualify its repeal and thus to keep in force its own enactments. It is a provision enacted in recognition of the principle that, unless the statute is so continued in force by competent authority, its repeal precludes further enforcement. The Congress, however, is powerless to expand or extend its constitutional authority. The Congress, while it could propose, could not adopt the constitutional amendment or vary the terms or effect of the amendment when adopted. The Twenty-First Amendment contained no saving clause as to prosecutions for offenses theretofore committed. The Congress might have proposed the amendment with such a saving clause, but it did not. The National Prohibition Act was not repealed by act of Congress, but was rendered inoperative, so far as authority to enact its provisions was derived from the Eighteenth Amendment, by the repeal, not by the Congress but by the people, of that amendment. The Twenty-First Amendment gave to the Congress no power to extend the operation of those provisions. We are of the opinion that in such a case the statutory provision relating to the repeal of statutes by the Congress has no application. (291 U.S. 217, 225] The government cites decisions involving changes from territorial to state governments and recognizing the authority of the Congress to provide for the transfer of pending cases from territorial courts to the courts established within the new states. Pickett v. United States, 216 U.S. 456 , 30 S.Ct. 265; United States v. Baum (C.C.) 74

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F. 43. Compare Moore v. United States (C.C.A.) 85 F. 465. These decisions present no analogy to the instant case. AB the function and jurisdiction of territorial courts would naturally terminate when a territory becomes a state, some provision for the transfer of pending business is necessary, and the Congress has adequate authority to that end. The Constitution authorizes the Congress to admit new states into the Union (article 4, 3, par. 1), and, also, to provide in the case of crimes, not committed within any state, for trial at such place as the Congress may direct (article 3, 2, par. 3). The Congress, in admitting a new state, may thus transfer 'jurisdiction in respect oflocal matters to state courts, and of civil and criminal business and jurisdiction arising under the laws of the United States to courts of the United States when they should come into existence.' Pickett v. United States, supra, at page 459 of 216 U.S., 30 S. Ct. 265, 267; Forsyth v. United States, 9 How. 571, 576, 577. In such cases, jurisdiction for the trial of pending criminal actions depends upon the provisions of the enabling act. Id. Provision in the enabling act for the vote of the people of the territory, as a condition precedent to the establishment of the new state and the adoption of its constitution, does not alter the fact that the state is admitted to the Union by the Congress under its constitutional authority. In the instant case, constitutional authority is lacking. Over the matter here in controversy, power has not been granted but has been taken away. The creator of the Congress has denied to it the authority it formerly possessed, and this denial, being unqualified, necessarily defeats any legislative attempt to extend that authority. [291 U.S. 217, 226] Finally, the argument is pressed that the rule which is invoked is a common-law rule and is opposed to present public policy. We are told that the rule of construction, evidenced by the saving provision adopted by the Congress in relation to the repeal of statutes, is firmly entrenched, and attention is directed to corresponding statutory provisions in most of the states. But these state statutes themselves recognize the principle which would obtain in their absence. The question is not one of public policy which the courts may be considered free to declare, but of the continued efficacy of legislation in the face of controlling action of the people, the source of the power to enact and maintain it. It is not a question of the developing common law. It is a familiar maxim of the common law that, when the reason of a rule ceases, the rule also ceases. See Funk v. United States, 290 U.S. 371 , 54 S.Ct. 212. But in the instant case the reason for the rule has not ceased. Prosecution for crimes is but an application or enforcement of the law, and, if the prosecution continues, the law must continue to vivify it. The law here sought to be applied was deprived of force by the people themselves as the inescapable effect of their repeal of the Eighteenth Amendment. The principle involved is thus not archaic, but rather is continuing and vital-that the people are free to withdraw the authority they have conferred and, when withdrawn, neither the Congress nor the courts can assume the right to continue to exercise it. What we have said is applicable to prosecutions, including proceedings on appeal, continued or begun after the ratification of the Twenty-First Amendment. We are not dealing with a case where final judgment was rendered prior to that ratification. Such a case would present a distinct question which is not before us. The judgment dismissing the indictment is affirmed. Affirmed.

Footnotes [ Footnote 1 ] Article :XXI of the Amendments of the Constitution provides as follows: 'Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

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'Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. 'Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.' [ Footnote 2 ] The text of the provision is as follows: 'The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.'

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General Discussion

COLEMAN v. MILLER, 307 U.S. 443 (1939)

Hughes

Stone

Reed

Black

Roberts

Frankfurter

Douglas

In what many describe as a “plurality” decision, Chief Justice Hughes delivered the “opinion of the Court” in Coleman v. Miller (hereafter Coleman). The opinion was directly supported by only three justices—the Chief Justice, Harlan Fisk Stone (U.S. Attorney General 192425, Associate Justice 1925-41, Chief Justice 1941-46) Butler McReynolds and Stanley Forman Reed (United States Solicitor General 1935-38, Associate Justice 1938-57). Coleman consisted of Chief Justice Hughes “opinion of the Court”, one concurring opinion, one opinion by a single justice and one dissenting opinion. The first concurring opinion, authored by Hugo Lafayette Black (United States Senator 1927-37, Associate Justice 1937-71) was joined by Associate Justices Owen Roberts, Felix Frankfurter (Associate Justice 1939-62) and William Orville Douglas (Associate Justice 1939-75). The second opinion, written by Associate Justice Frankfurter, noted Associate Justices Roberts, Black and Douglas held the same “view” as his that the petitioners had no standing to sue (hereafter standing). A dissenting opinion written by Pierce Butler (Associate Justice 1922-39) joined by Associate Justice James Clark McReynolds disagreed with the “opinion of the Court” which found against the petitioners (a group of twenty-four state legislators from the state of Kansas) on all counts. The issue before the Court by the petitioners was their opposition to a ratification vote by the Kansas state legislature in support of a proposed amendment to the Constitution known as the Child Labor Amendment. (The proposed amendment failed for lack of ratification by three-fourths of the state legislatures). Petitioners cited several grounds as the basis for asking the Court to overturn the favorable ratification vote by the Kansas state legislature. According to a 1977 Court ruling Colman is defined as a “plurality” decision because no single opinion apparently received the support of a majority of the Court members. In such circumstance the Court said, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds…’, Gregg v Georgia, 428 U.S. 153, 428 U.S. 169 n.15 (1976) (opinion

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of STEWART, POWELL, and STEVENS, JJ.),” Marks v United States, 430 U.S. at 193 (1977). Even though enunciation by the Court defining plurality was decades in the future, Chief Justice Hughes could count and obviously understood the basics of Court procedure. Enunciated or not he understood the difference between less than five justices agreeing on an opinion and five or more justices agreeing on an opinion. Even in 1939 when five or more justices agreed on an opinion it was called the majority or “opinion of the Court.” Therefore when Chief Justice Hughes labeled his opinion an “opinion of the Court” it meant at least five justices agreed as to the merits of the case and the standing of the petitioners. Yet, as will be shown, this was not the case in Coleman. Before discussing Coleman however, an examination of the two issues addressed in the ruling, standing and political question doctrine is necessary in order to understand the complexities of the ruling which many legal scholars have labeled as “confusing” or “inconclusive.” A closer examination however reveals this not to be the case. Essentially standing is a Court doctrine related to the constitutional limits of Court jurisdiction. The Court created the doctrine in order to examine whether the Constitution textually extends Court jurisdiction to the petitioners in a specific case or not. If the Court finds the petitioners lack standing (meaning Court jurisdiction is not textually extended by the Constitution) then the Court has no authority to hear the case and rule on its merits. The Court then decrees the petitioners lack standing and dismisses the suit. The affect is (1) the Court renders no ruling on the merits of the case and (2) the issue remains unchanged—that which was before the case was presented to Court is exactly what remains after the Court dismisses for lack of standing to sue. Article III, §2, (1) (2) of the Constitution, generally referred to as the “cases and controversies” clauses defines “judicial power.” Those clauses read: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;[clause eliminated by passage of the 11th Amendment]—between Citizens of different States;—between Citizens of the same State claiming Lands under the Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Frothingham v Mellon, 262 U.S. 447 (1923) (hereafter Frothingham) is generally regarded as the foundation for the modern doctrine of standing. Frothingham describes numerous instances throughout Court history of refusal to rule by the Court to rule on the merits of a case for “want of jurisdiction.” Rather than cite specific constitutional language granting the Court the right to determine its own jurisdiction the Court instead relied on these examples as the basis for it to conclude petitioners in Frothingham lacked standing. Therefore the Court did not address the merits of the case in Frothingham. While the basic principles of standing expressed in Frothingham are still in general use today, the history of standing shows the doctrine has steadily evolved—not from decade to decade or year to year but case to case. An example of this “evolution” is Elk Grove Unified School District v. Newdow 542 U.S. 1 (2004) (hereafter Newdow). Chief Justice Rehnquist (Associate Justice 1972-86, Chief Justice 1986-2005) dissented to the Court’s determination of lack of standing for the respondent based on “prudential” standing. Rehnquist said: “The Court correctly notes that “our standing jurisprudence contains two strands: Article III standing, which enforces the Constitution’s case or controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559—562 (1992); and prudential standing, which embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction, [Allen v. Wright, 468 U.S. 737, 751 (1984)].’ ” Ante, at 7—8. To be clear, the Court does not dispute that respondent Newdow (hereinafter respondent) satisfies the requisites of Article III standing. But curiously the Court incorporates criticism of the Court of Appeals’ Article III standing decision into its justification for its novel prudential standing principle. The Court concludes that respondent lacks prudential standing, under its new standing principle, to bring his suit in federal court. …

Rehnquist

Although the Court may have succeeded in confining this novel principle almost narrowly enough to be, like the proverbial excursion ticket–good for this day only–our doctrine of prudential standing should be governed by general principles, rather than ad hoc improvisations.”

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The Court applied this “novel” principle of prudential standing only in Newdow Mr. President and has since abandoned it. A simple reading of Article III shows no principle of “prudential” standing exists. Indeed the language “judicial power shall extend to all cases…” precludes the Court having “self-imposed limits” on the exercise of federal jurisdiction.” The reason for this is obvious. If the Constitution grants jurisdiction the judiciary cannot then decline that jurisdiction. Such an act would establish judicial supremacy over the text of the Constitution. Yet that is exactly what happened in Newdow. As described by the chief justice the Court, even though acknowledging Newdow had standing, decided for reasons other than standing, it did not want to rule on the case before them. It created a new form of standing, one not derived from the text of the Constitution, to accomplish the task. Unlike the federal law creating the rules of evidence, civil and criminal procedure, rules of appeal and so forth [See: United States Code, Title 28 – Judiciary and Judicial Procedure] there is no equivalent standing law. The rules of evidence, court procedure and appeal satisfy the constitutional demands of due process of law and equal protection under the law. These laws describe rules under which the court operates, thus defining its jurisdiction in minute detail. They describe what evidence is admissible in court. They formulate rules whereby court decisions may be appealed. Without first there being a law there can be no due process of law and certainly no equal protection under the law as demanded in the Constitution. As standing is not created by law but instead exists only in the mind of the judge or justice hearing a case, it cannot be stated standing satisfies due process or equal protection. All other Court procedures, save standing, are found in easily referenced, universally applied, consistent law. Standing is associated with no such law. Therefore standing violates the constitutional requirements of equal protection under the law and due process of law. Standing is unconstitutional. The “principles” of Frothingham are not direct constitutional text but rather interpretations of that text. That direct text describes classes of lawsuit (such as a citizen bringing a suit) under which the Court will consider a case. The text emphatically states judicial power shall extend to “all” cases so described. With that preclusion the direct text does not permit Court interpretation of the various legal classes described in the Constitution. With such “interpretation” as the Court has been permitted to create, the Court has transformed clear unequivocal constitutional text into an endless set of shifting “principles” entirely dependent on Court discretion. Such discretion permits the Court to deny a petition for redress presented in the form of a federal lawsuit by a plaintiff by asserting lack of jurisdiction even though the plaintiff satisfies one of the legal classes described in the Constitution i.e., he is a citizen and can prove it, or represents a state in the union and so forth. The lack of due process and equal protection under the law present several fundamental questions of constitutional law and Court procedure. How can

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standing satisfy due process and equal protection under the law when standing consists of a constantly evolving set of “principles” which the Court creates on an “ad hoc” case by case basis? The fundamental principle of equal protection and due process is that a lawful procedure applied to all cases. If the basis of procedure constantly shifts because the “principles” of standing constantly change how equal protection be equally applied if the judgment of standing is different in each case? If, for example, in one case the Court accepts that the right to vote provides standing and yet in another case states the right to vote does not provide standing, how is this equal protection under the law? How can due process of law be applied when there is no law in the first place allowing for application of the process? There are other questions about standing. Exactly what constitutes the evidence that proves standing? Under what Court rule is this evidence of standing presented to the Court? What is the precise legal definition of the terminology used in standing? Which Court rules of procedure specified in law apply to standing? How may standing be appealed? Which version of standing applies—Frothingham, Lujan, Newdow or version X? There are no answers to these questions Mr. President to be found in any legal text and certainly not in law. Instead vague, generalized statements and opinions in various legal articles abound compounding the issue but not resolving it. In sum Mr. President standing as constituted by the courts, exists only within the mind of the judge writing the opinion for that case. That judge may employ “general principles” of standing or create an “ad hoc” version of his own. Newdow is a classic example. If the Court wishes to rule on merit, it finds the plaintiff has standing, if not; he lacks standing based on whatever “principle” of standing the Court creates. This is not to say standing does not exist. The Constitution clearly limits the jurisdiction of the courts to classes of lawsuits of specific description such as controversies to which the United States shall be a party. Within these classes the standing of any party must be established. But this is as far as the text extends: if the party proves he is a citizen or presents evidence of representation of a state standing, according to the text of the Constitution, is satisfied. Once satisfied the standing of the plaintiff is constitutionally established. The Constitution does not authorize the Court to proceed further and create classes of suits that are not textually expressed in the Constitution. Notably the Court in its standing rulings never cites the actual text of the Constitution and compares whether or not the plaintiff satisfies that text i.e., “is the plaintiff a citizen?” Instead the Court always refers to its own interpretations of past cases and uses that as the basis of its determination only referring to the constitutional text by a generalized title of “cases and controversies.” In short, the Court ignores the Constitution.

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The Court itself has ruled that such action is unconstitutional. In Marbury v Madison, the issue before the Court was whether by legislative act Congress could extend the original jurisdiction of the Supreme Court beyond that described in the Constitution. The Supreme Court ruled such law was unconstitutional and struck down that portion of the law. Thus the Court ruled the terms of Court jurisdiction established in the Constitution cannot be altered by means of ordinary legislation. This principle of prohibition of use of ordinary means of authority granted a governmental body in the Constitution being employed to alter constitutional text applies equally to the Court. The Court cannot alter or extend constitutional text by ordinary judicial decree. There is neither constitutional text describing standing beyond those legal classes already referenced nor granting the Court authority to alter these classes by ordinary judicial decree. Therefore under the principle enunciated by the Court in Marbury the Court itself is prohibited from extending standing beyond that which the Constitution textually describes. There is no avoiding the fact however that the Constitution does limit Court jurisdiction by presentation of specific textual classes which clearly define what cases or controversies the Court may address. Hence standing is a constitutional mandate limiting Court jurisdiction and therefore must be obeyed by the courts. This point cannot be overstated in light of what is to be presented: the Court cannot abandon the limitations of standing imposed upon it by constitutional text as it would shed a tattered coat wearing that coat only when the Court finds it convenient. If a Court expresses a plaintiff lacks standing, then that Court has forfeited its jurisdiction meaning it is prevented from proceeding further—it cannot determine the merits of a case as it lacks jurisdiction to do so. Since Frothingham the courts have declared their interpretation of standing determines court jurisdiction. Article III describes classes of lawsuits as the basis of standing using specific words and no equivocations. The Court has gone beyond these terms to create exceptions to standing not supported by direct constitutional text. Thus any exception or regulation of standing has been created by the Court based on its interpretation of Article III rather than direct constitutional text. Article III however assigns Congress the authority to make “exceptions” and “regulations” to court jurisdiction, not the court under the “exceptions” clause—“In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Obviously if standing defines court jurisdiction as the Court has repeatedly stated, then the terms, conditions and circumstances of standing create “exceptions” to court jurisdiction which is otherwise universally applied by the Constitution by the term “shall extend to all Cases in Law and Equity…and to Controversies…” [Emphasis added] The Constitution assigns the determination of such “exceptions” of court jurisdiction to Congress as well as granting

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Congress authority to regulate such “exceptions.” Therefore constitutional determination of standing is a legislative rather than a judicial function. This congressional power of exception and regulation is further extended by the “establishment” clause of Article III which states: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.” Obviously the authority to “ordain and establish” inferior courts in combination with its “exceptions” and “regulations” authority empower Congress to set the jurisdiction of the courts—which includes, if Congress desires, defining standing. Like rules of evidence and court procedure legislation can define standing, describe its terms and conditions, describe what evidence establishes standing and so forth reducing standing from an arbitrary state of mind to a due process of law. Congress has exercised this authority in the past. Where it has done so, the Court has stepped aside. One recent example is McConnell v Federal Election Commission, 540 U.S. 93 (2003) (hereafter McConnell). As you know Mr. President in 2002 Congress passed the Bipartisan Campaign Reform Act of 2002 (Public Law 107-155) (hereafter BCRA) designed to regulate various federal election activities. In anticipation of numerous federal lawsuits BCRA §403(a) (“Special Rules for Actions brought on Constitutional Grounds”) mandated that “any action…for declaratory or injunctive relief to challenge the constitutionality of any provision of this Act…shall be filed in the United States District Court for the District of Columbia [and]… shall be reviewable only by appeal directly to the Supreme Court of the United States.” BCRA §403(b) (“Intervention by Members of Congress”) declared: “In any action in which the constitutionality of any provision of this Act or any amendment made by this Act is raised (including but not limited to an action described in subsection (a)), any member of the House of Representatives (including a Delegate or Resident Commissioner to the Congress) or Senate shall have the right to intervene either in support of or opposition to the position of a part to the case regarding the constitutionality of the provision or amendment.” BCRA §403(c) (“Challenge by Members of Congress”) extended standing to Members of Congress stating:

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“Any Member of Congress may bring an action, subject to the special rules described in subsection (a), for declaratory or injunctive relief to challenge the constitutionality of any provision of this Act or any amendment made by this Act.” BCRA was challenged in court as prescribed by §403(a) meaning Congress established “exceptions” by ordinary legislation to court jurisdiction. First Congress established an “exception” by removing jurisdiction from all district courts (except the district court in the District of Columbia) to consider any aspect of the BCRA. (Congress also established a special type of district court by mandating a three judge panel hear the cases rather than usual single judge procedure.) Second, Congress made an “exception” to the jurisdiction of the appellate courts, by-passing them entirely in the appeal process. Third, Congress created a new “regulation” for BCRA mandating appeal directly from district court to Supreme Court. Fourth, Congress established “regulation” over the Supreme Court docket mandating consideration of BCRA ahead of other Court cases. Fifth, Congress made “exception” for any member of Congress desiring to intervene either in favor or against any provision of the BCRA. Sixth, Congress made an “exception” to the doctrine of standing by legislatively allowing members of Congress to “bring an action” (even though the word standing was not used in the law). The intent was clear however. Having the right to “bring an action” mandates the party has standing to do so. McConnell was a massive Court ruling encompassing hundreds of pages. The ruling was so complex that various sections of the law were assigned to different justices who then wrote opinions on the different sections. Chief Justice Rehnquist delivered the Court’s ruling on Section IV which included §403(a) (b) (c). The standing of members of Congress was challenged by plaintiffs. Chief Justice Rehnquist Rehnquist responded: “The National Right to Life plaintiffs argue that the District Court’s grant of intervention to the intervenor-defendants, pursuant to Federal Rule of Civil Procedure 24(a) and BCRA §403(b), must be reversed because the intervenor-defendants lack Article III standing. It is clear however, that the Federal Election Commission (FEC) has standing, and therefore we need not address the standing of the intervenor-defendants, whose position here is identical to the FEC’s.” The Court did not object to the “exceptions” of §403(a). In fact the Court referred to them (limiting district court access, a specific type of district court, by-passing the appeals court and so forth) in McConnell. Obviously therefore the Court was aware ordinary legislation was regulating Court jurisdiction (contrary to its ruling in Marbury). Nevertheless the Court accepted the right of Congress to make “exceptions” to Court jurisdiction and therefore to standing. When these exceptions were directly challenged Chief Justice Rehnquist chose to “reserve the question for another day.” Thus instead of overturning Congress’ authority the Court created yet another “ad-hoc” principle of

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standing—piggy-backing—the transfer of the standing from one party to another in order to give both parties standing. The Court failed to cite constitutional text allowing for such transfer or granting the Court authority to make such transfer. It is self-evident Mr. President that for anything to be constitutional it must satisfy all the Constitution. Something cannot be constitutional in Article VI and unconstitutional in Article IV. Consequently the reverse is true: any constitutional issue is affected by all provisions of the Constitution. Therefore examination of any constitutional issue requires the determination of the effect of other constitutional clauses on that issue. Such is the case of the First Amendment and its effect on standing. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The relevant text is “Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances.” The meaning is clear. Congress cannot pass legislation abridging (or thwarting) the right of the people to petition the government for a redress of grievances. Exactly what does the term “ petition the Government for a redress of grievances” describe? According to the Supreme Court, among other forms of petition it describes a federal lawsuit. In California Motor Transport Co. v Trucking Unlimited, 404 U.S. 508 (1972) (Hereafter California Transport) the Supreme Court said: "The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms. … The same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition."[Emphasis added]. With its ruling extending the right of petition for redress of grievances to itself the Court opened the door to affect by the First Amendment on its doctrines dealing with redress of grievances. As discussed in Gulf equal protection extends not only to under the law but from a law where the Constitution forbids enactment. Thus, if Congress is forbidden by the First Amendment from circumventing or abridging the right of petition by the people for redress of grievances by enactment of a law, this prohibition equally applies to the courts

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as the First Amendment equally affects all forms of that right of petition for redress of grievances. If the Constitution assigns the control of standing to the legislature and Congress can make no law affect the right of petition, the courts cannot circumvent the right of the people to petition the government for redress of grievances by ordinary court decree because under the Constitution such authority is assigned to Congress rather than the courts and then prohibited to Congress by the First Amendment. Clearly the “ad-hoc” principles of standing relate to the court’s determination of whether a petition (or lawsuit) is redressed by the court. Equally clear is how the court arrives at its conclusion on the merits of the case makes it obvious that court process is reserved not only to the “judicial power” clause of Article III but to the redress of grievances portion of the First Amendment. Hence there are two processes involved in a court case—first whether the court will redress a petition of grievance and second how the court redresses that grievance. While the statement of language used to present the issue may appear to answer the question satisfactorily, in fact it does not. Constitutional function demands an answer to the question of whether standing relates to the act of petition by the people or the act of redress of grievance by the court. The “ad-hoc” principles of standing consist of terms and conditions not found in the Constitution, altered from one case to another, created entirely in the mind of a judge without any regard to the constitutional mandates of equal protection or due process of law which mandates, at the minimum, support by an actual written law. Standing is unconstitutional. Even if Congress in its wisdom could create standing in a law satisfying equal protection and due process with precise and exact definition of the terms, conditions and circumstance of standing such that standing was singular, uniform and universal in application, the First Amendment precludes its enactment by protecting the people from such law however well written. The same principle applies to the court: however well-reasoned, however well researched, however solemn in judicial decree, however pedigree the linage of case law presented the First Amendment still precludes the court from abridging in any manner a petition for redress of grievances by the people. The colonists made their position on petitioning clear in 1776. The colonists cited the failure of the King to redress grievances as one of the reasons for separation in the Declaration of Independence. They wrote, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” Obviously, by the language contained in their declaration the colonists believed the important issue was not that a petition by the people was submitted to the King, but that the King redress the grievance presented. Equally obvious by the text of the declaration is the fact the King believed he was under no obligation

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to redress any petition. The Court has sustained the King in its opinions about the right of the present government to ignore petitions from the people. In Minnesota Board for Community Colleges v. Knight, 465 U.S. 271 (1984) for example the Court stated, “Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues.” Thus, like the King, the Court held the people have the right to petition but the government controls the redress of grievances. Therefore, according to the Court, the government can ignore petitions from the people rendering their submission meaningless. Standing reflects this Court position. Like the King, the Court, with its doctrine of standing, holds it is not required to respond a petition of redress by the people. The Court’s problem is the colonists did not forget what the King did regarding their petitions. They placed text in the Constitution prohibiting such acts of power by the judiciary. The first textual prohibition actually at first appears to refute this assertion. But a closer examination reveals otherwise. The constitutional text recognizes the Court, like the King, controls the right of redress but the text grants this acknowledgment in a completely different fashion than what was at the disposal of the King. As discussed, “Judicial power shall extend to all cases…and controversies…” Unlike the King who defined his own power at his own will and hence could extend or withdraw it as he pleased, the Constitution gives no such discretion to the Court. Thus the Court cannot refuse to redress a grievance if that grievance falls under one of the several legal classes listed in Article III. Thus the power of the judiciary to redress grievances is simultaneously limited and unlimited. Like the King, the power of redress, that is the determination of a case or controversy on its merits, is entirely within the control of the Court. Unlike the King the Constitution limits the areas in which the Court can extend this otherwise omnipotent power. But this is not the only limitation in the Constitution. Any exception or regulation of this omnipotent power, that is, any exception to the word “all” as the Court has repeatedly stated, lies in the determination of Court jurisdiction and not in the creation of an exception to the ubiquitous judicial power of redress of grievances. Thus the judiciary rules on a case by case basis regarding standing comparing the petition to its ubiquitous power rather than the opposite. To compare otherwise, power to petition, would mean affecting the Court’s power permanently by removing a specific subject or issue from its purview. This is unacceptable in light of constitutional text. A court ruling limiting the ubiquitous power of redress of grievances means that power is no longer ubiquitous relegating the term “all…cases and controversies” to

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“some…cases and controversies.” The judiciary cannot be stripped of its constitutional duties in such a manner. Such an act would render a vital constitutional service meaningless. However, by addressing the issue of standing on a case by case basis the Court, as is its practice, is free to ignore previous decisions of standing and reverse itself at will. Thus a plaintiff who before lacked standing now miraculously has suddenly gained it. The Court therefore chooses to make the power of redress of grievances inviolate and thus untouched by standing. The Court’s position automatically renders standing as part of a specific petition or lawsuit whereby each suit is adjudicated as an exception to Court jurisdiction in Article III prior to the petition being subject to any redress of grievances by the Court. With this Court exclusion therefore standing becomes part of the right to petition portion of the First Amendment rather than the redress of grievances. But this decision carries with it a price for the Court. The separation of powers caused by the text of the Constitution means the redress of grievances lies with the Court, but the right to petition remains with the people. In turn the constitutional text assigns the power of exceptions and regulations of court jurisdiction, including standing, to Congress. Congress is limited by the First Amendment which precludes any abridgment of the right to petition by prohibiting any enactment of law affecting that right of the people. Thus the court is also limited as its authority to determine jurisdiction is dictated not by its own declarations but those of Congress. The limitation of the First Amendment on Congress means only the expressed text of classes of lawsuit contained in Article III can determine court jurisdiction and therefore standing. Thus, standing is limited not by any court doctrine created on a case by case basis, but on the textual statements of the Constitution which specify exact circumstances and conditions of who has standing. The First Amendment then precludes, whether by legislation or court doctrine, additional circumstances and conditions other than what is exactly stated. Thus, if someone is a citizen, he has standing. The Constitution provides no other circumstances a person need satisfy other than this stipulation and hence other circumstances, such as the type of grievance may be attached by either court or Congress so as to prevent a petition of grievance. The court is still free in its determination of merits find against the filing party as is the case in any lawsuit. However the First Amendment precludes the court from denying a petition for redress of grievances for “ad hoc” reasons. The judiciary is therefore left to address the merits of grievances in a lawsuit absent any determination of its jurisdiction such that the court can refuse to redress a grievance by ignoring the constitutional command, “…shall extend to all…” Thus, the text of the Constitution demands the government address the grievance of the petition but within the parameters of the overarching principle

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of separation of powers found throughout the Constitution. Neither party in this constitutional exercise controls all aspects of the matter. The Constitution reflects a solution to the frustration expressed by the colonists in 1776— obtaining a redress of grievances from the government while denying it the authority to refuse to do so. Given this circumstance, it is illogical to suggest the colonists would write a provision in the Constitution or ratify an amendment whereby the Court replaced the King with the power to refuse to redress grievances thus permitting “repeated injury.” The First Amendment effects both original as well as appellate jurisdiction. Unlike the provisions of Article III which give Congress “exceptions” and “regulations” authority only over the appellate process, the First Amendment extends its limitation to both original and appellate jurisdiction. Thus the Supreme Court is equally restrained in its jurisdiction. As noted earlier, that jurisdiction can only be altered by amendment as the Court noted in Marbury and the passage of the Eleventh Amendment clearly demonstrates. When the Court bound Congress in Marbury it bound itself by removing from all government departments the ability to use ordinary means usually available to it (such as a Court ruling) to alter the Constitution except by use of amendment. Therefore what the Constitution textually states is the limit of standing for both the inferior as well as the Supreme Court. Second, the First Amendment reduces standing from an “ad hoc” Court procedure to a simple procedural matter administered by the court clerk to determine if a party is a citizen; the United States is party and so forth. Standing no longer dominates the Constitution, but instead is subservient to it. Instead of the Court employing standing to determine which constitutional provisions it agrees will be enforced, the First Amendment ensures all such enforcement will be determined on facts, law and merit rather than an “ad hoc” procedure. Neither the courts nor Congress may extend or reduce the minor limits of citizenship nor other terms described in the Constitution beyond the original text and scope except by amendment. Yet this reduction of standing and thus overt, self-created court power in no way diminishes the court’s primary constitutional duty—determination of constitutional issues raised in the Constitution on the merits of the arguments and evidence presented. This power remains firmly with the court. The bedrock fact is Mr. President while it may be constitutional postulation to assert the First Amendment modifies the doctrine of standing or Congress, not the courts, is assigned the constitutional role of determination of standing, under all circumstances the Court is bound to obey its own rules of standing as these rules, according to the Court, are derived not from the mental process of a judge but the text of the Constitution. If this Court declaration is true then the Court cannot ignore standing. If the Court, which first must determine standing before reaching a conclusion on merits (as a reverse application of finding on merit then determining standing defeats the premise of standing

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entirely) decides a specific plaintiff lacks standing, that determination, under the Court’s own doctrine, prevents the Court from addressing the merits of the case in any manner—except in the case of Coleman and the amendatory process as will be demonstrated. The other major Court doctrine discussed in Coleman is the political question doctrine. Again the doctrine deals with court jurisdiction. Many government disputes are political rather than legal in nature. An example of a political dispute is two candidates vying for political office. In such cases the doctrine asserts such disputes must be resolved by the political processes of the Constitution, such as election and not by the judiciary. The doctrine mandates the judiciary limit its jurisdiction to judiciable disputes involving questions of law based on the Constitution. The doctrine further recognizes coordinate departments, such as Congress, are textually assigned constitutional duties. Under most circumstances, this textual assignment forbids the court from interference in such duties. In a typical case where the court finds a dispute non-judicable due to the political question doctrine, the issue presented before the court is either so specific the Constitution gives all power to one of the coordinate political branches, or so general the Constitution does not even consider it. The leading Supreme Court case defining the political question doctrine is Baker v Carr, 369 U.S. 186 (1962). In that case the Court listed the six characteristics of a political question. According to Baker if a dispute falls under any of the six principles the dispute is a political question. Therefore the court cannot reach a conclusion on the merits of the dispute. While the specific rules formulated in Baker did not exist in 1939, the Court nevertheless makes general reference to these principles in Coleman which was referenced in the Baker decision. The characteristics of a political question are: (1) A “textually demonstrable constitutional commitment of the issue to a coordinate political department”; (2) A “lack of judicially discoverable and manageable standards for resolving it”; (3) The “impossibility for a court's independent resolution without expressing a lack of respect for a coordinate branch of the government”; (4) The “impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court”; (5) An “unusual need for unquestioning adherence to a political decision already made”; (6) The “potentiality of embarrassment from multifarious pronouncements by various departments on one question.” In actual practice the political question doctrine determines whether the Court engages in either the establishment or modification of public policy by judicial decree rather than allowing the usual political process of elections, legislation, public debate and so forth to set public policy. The Court has construed its doctrine narrowly. Thus it gives itself wide latitude to affect nearly all issues of

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public policy in this nation. Many Court accepted legal questions involving abortion, gay marriage, gun control or campaign finance to cite some examples, have resulted in massive political consequences. Fundamentally standing and political question are two sides of the same coin. In standing the Court faces the question of whether an individual party has a right to modify public policy. In political question the Court decides whether it has the right to modify public policy. Quite frequently the answer is “yes.” Thus the line of demarcation between questions before the Court being legal or political is hazy at best. Like standing, the political question doctrine is a judicial creation intended to limit jurisdiction to that which the Court wishes to rule on rather than what it is empowered to address. Again the Constitution provides no such judicial discretion as the responsibility for Court jurisdiction rests with Congress under the “exceptions” and “regulations” clause and the First Amendment. A discussion of the wisdom of empowering a decidedly a political department whose decisions inevitably are based not on legal principles, but political consequences to regulate Court jurisdiction on political subject matters is beyond the scope of this Appendix. The Constitution assigns that duty to Congress and Congress is a political body. Hence the question of Court jurisdiction in regards to standing and political questions is a political rather than a legal question. Nevertheless the view is not as bleak as might be supposed. Congress can only make exceptions to judicial power, not eliminate it. Thus if Congress fails to affirmatively address a specific area of political question the judiciary retains jurisdiction and can rule on its merits. Some might argue this view of congressional oversight would deprive the judiciary of its legendary independence. Nothing in the Constitution assigns the court “independence.” The task assigned the Court by the Constitution is to interpret the Constitution—all cases and controversies arising under this Constitution—not the “independence” to address only those portions of the Constitution the Court wants to address. The Constitution does not grant the court authority to create unconstitutional doctrines in order to justify not doing their assigned job. The text granting Congress authority of regulation and exception has existed since the creation of the Constitution; there is little evidence proving Congress has abused that power in any legislation it has passed. Hence the “independence” of the judiciary appears secure. The political question doctrine deals with the principle of separation of powers. The Constitution assigns its various departments distinct power and duties based on the presumption these departments will execute these powers and duties as textually expressed in the Constitution. Thus, where the political department is given discretion in its power, it may use it accordingly. If the Constitution gives no discretion in an assigned constitutional duty, the department acts accordingly. The political question doctrine expresses the Court’s “hands off” policy dealing with this fundamental constitutional principle.

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But what if the political department does not obey the law of the Constitution? What happens if and when the Constitution entirely assigns a constitutional duty to a specific department with specific instructions to execute that duty under a textually specified set of circumstances but that department ignores the direct constitutional text and instructions of the Constitution and thus refuses to execute this constitutional duty? Is this department thus immune from judicial review of such violation because the Court created political question doctrine prevents the courts from enforcing obedience to the Constitution if the Court feels such obedience involves an area the Court feels is not the business of the Court? Is it not the duty of every American to ensure the Constitution is obeyed? How does the Court justify such action as ultimately the effect of such policy means the Court grants departmental “independence” from the Constitution? Does the Court therefore possess the ultimate power to superimpose its doctrine over that of express constitutional text becoming a “runaway” convention altering the Constitution as it pleases? Despite the laundry list in Baker the fact is Mr. President, the Constitution specifies “all” cases and controversies are subject to judicial review. But even if the reasoning of the Court in its doctrines despite all the flaws noted above is sound—that forcing obedience to all provisions of the Constitution by all departments was never intended to be the domain of the courts, such assertion is irrelevant. The Founders did not put all their constitutional eggs in one basket. The duty of mandating all departments of the Constitution obey all constitutional text is textually assigned and reserved to the President under his “preserve” power in his oath of office located in Article II of the Constitution. The President, to the best of his ability, shall preserve the Constitution. The Constitution is the Supreme Law consisting of a series of textual statements intended to create a specific form of government. The task of the President therefore is to preserve that form of government created by those textual instructions. How can a specific textual instrument be preserved if the textual instructions creating it are not obeyed? Hence, the President is tasked with enforcing all provisions of the Constitution and ensuring they are obeyed as written. There is neither “political question” doctrine nor standing in the oath of office of the President nor is the President tasked with “interpretation” of the Constitution. The oath is categorical: the President shall preserve the Constitution to the best of his ability—period. The Constitution mandates all federal officers including judges take an oath of office to support the Constitution, meaning they obey it. But the President is given the absolute authority to enforce that obedience. He cannot create doctrines, excuses and so forth to avoid this duty. Such acts would be contrary to the provision “preserve…to the best of my ability.” At the minimum this “ability” involves using powers textually assigned the president by the Constitution to ensure obedience to the Constitution. Refusal to use such

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powers to preserve the Constitution clearly repudiates his oath of office as such act would not be to the best of his ability. Therefore if the Court for whatever reason refuses to address an issue of governmental constitutional disobedience to direct constitutional text, the task of enforcement falls automatically on the president. As will be demonstrated Mr. President such is the case in the matter of calling an Article V Convention. Having discussed standing and the political question doctrine in some detail, the examination of how these doctrines were applied in Coleman can now proceed. The “opinion of the Court” was the petitioners had standing. The Court used many pages in its opinion justifying this position. The Court said in summation: “Our authority to issue the writ of certiorari is challenged upon the ground that petitions have no standing to seek to have the judgment of the state court reviewed, and hence it is urged that the writ of certiorari should be dismissed. We are unable to accept that view. … Whether any or all of the questions thus raised and decided are deemed to be justiciable or political, they are exclusively federal questions and not state questions. … We find the cases cited in support of the contention, that petitioners lack an adequate interest to invoke our jurisdiction to review, to be in applicable. Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. … In the light of this course of decisions, we find no departure from the principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision.” It should be noted immediately that despite the Court ruling the petitions had standing, the “opinion of the Court” either found against the petitioners or did not rule on their arguments leaving the lower court opinions ruling against them intact. The petitioners requested three actions by the Court which were: “[1]…compel the Secretary of the Senate to erase an endorsement on the resolution to the effect that it had been adopted by the Senate and to endorse thereon the words ‘was not passed’, and to restrain the officers of the Senate and House of Representatives [of the Kansas state legislature] signing the resolution and the

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Secretary of State of Kansas from authenticating it and delivering it to the Governor. [2] The petition challenged the right of the Lieutenant Governor to cast the deciding vote in the Senate. [3] The petition also set forth the prior rejection of the proposed amendment and alleged that in the period from June, 1924 to March, 1927, the amendment had been rejected by both houses of the legislatures of twenty-six states, and had been ratified in only five states, and that by reason of that rejection and the failure of ratification within a reasonable time the proposed amendment had lost its vitality.” [Brackets inserted]. For the Court to rule on merits required the petitioners have standing and that least a majority of the Court (five justices) supported giving petitioners standing. The “opinion of the Court” granting standing to the petitioners was directly supported by only three justices—Hughes, Stone and Reed. Logically, therefore the remaining two votes necessary to support standing would come from those justices concurring the Court’s opinion—Black, Douglas, Roberts and Frankfurter. But these justices explicitly declared the petitioners lacked standing. The only other possible support therefore had come from the two dissenting justices McReynolds and Butler who expressed they would reverse the decision of the Kansas Supreme Court and rule in favor of the petitioners. By implication these were the votes the Court used to grant standing. Therefore the vote determining the petitioners had standing was apparently 5-4. But there is a problem. The dissenting opinion of justices Mc Reynolds and Butler did not state the petitioners had standing. Instead the dissent dealt only with the merits of the arguments presented by the petitioners. It primarily discussed the “opinion of the Court” overturning Dillon as the ruling authority regarding the relationship between amendment proposal and ratification. Without an expressed declaration by these two justices in their dissent there is no clear cut evidence that five justices believed the petitioners had standing. However the true position of the justices on the standing of the petitioners can be surmised by examining Black’s comment at the beginning of his concurring opinion, “Although for reasons to be stated by Mr. Justice Frankfurter [that petitioners lacked standing], we believe this cause should be dismissed, the ruling of the Court just announced removes from the case the question of petitioners’ standing to sue. Under the compulsion of that ruling, Mr. Justice Roberts, Mr. Justice Frankfurter, Mr. Justice Douglas and I have participated in the discussion of other questions considered by the Court and we concur in the result reached, but for somewhat different reasons.” [Bracketed material inserted].

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Justice Frankfurter’s opening statement in his opinion was even more direct: “It is the view of Mr. Justice Roberts, Mr. Justice Black, Mr. Justice Douglas and myself that the petitions have no standing in this Court.” As Justice Black referred to only four votes against standing it follows there had to be at least one other vote among the remaining justices who believed the petitioners lacked standing. Otherwise Black’s statement makes no sense. If only four justices believed the petitioners lacked “standing to sue” that issue was moot as those justices believing petitioners laced standing also lacked the necessary five votes required to deny petitioners standing. Logically Justice Black would not raise the issue of standing if he believed the question was moot unless he believed he had the votes to prevail on a question of standing. This means at least five justices opposed standing. Justice Black’s statement also makes it clear the Court determined the merits of the case without standing being considered despite the numerous pages of the “opinion of the Court” being devoted to that subject. The only possible conclusion based on Justice Black’s statement is there were at least five justices on the Court who believed the petitioners lacked standing. The dissenting justices McReynolds and Butler can be eliminated. To achieve their position of reversal of the ruling of the state court obviously meant they believed the petitioners had standing (even though they did not state this in their dissent) because this was what the petitioners requested the Supreme Court rule. This leaves the three justices comprising the “opinion of the Court” group who ruled against the petitioners on merits but declared, at least for the purposes of publication, that petitioners had standing. Nevertheless Justice Black’s statement indicates the Court did not address the question of standing and if it had sufficient votes existed to deny petitioners standing. Therefore merits were placed ahead of standing meaning the Court believed it lacked jurisdiction but ruled anyway. The only logical conclusion is members of the Court granted standing not because they believed the petitioners had standing but because they, the members of the Court, wanted to present material that a denial of standing would have precluded. The Court stated various reasons to rule against each of the petitioners’ requests and arguments. Thus the Court ruled on the merits of case but chose to ignore the fact that a majority of justices (at least five and more likely seven believed the petitioners lacked standing). According to Court doctrine determination of standing is obligatory on the Court because it is derived from the Constitution. As such it cannot be ignored. If a majority of the justices believed the petitioners lacked standing judicial ethics as well as their oath of office to support the Constitution demanded they to declare the petitioners lacked standing and consequently not rule on the merits of the case. To ignore standing would, by the terms of their own doctrine, violate the Constitution. Yet this appears to be exactly what the Court did.

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How is this explained? The answer is obvious. The Court choose to ignore its own doctrine of standing in order to rule on the merits of the case means the Court, despite its statements of establishment of jurisdiction being necessary prior to ruling on merits, the Court proved in Coleman the “doctrine” of standing is optional not obligatory and therefore not a “doctrine” but a judicial contrivance. Why was this done? If the Court bound itself to the doctrine of standing it would have had no choice but to dismiss the case for want of jurisdiction or more likely refuse certiorari in the first place and proceed no further. Obviously the Court wanted to convey a specific interpretation or position which it could only express by ruling on merits of the case. A dismissal for “want of standing” only allowed the Court to address the reasons for dismissal and therefore afforded it no opportunity to proceed further. However if the Court ignored standing and ruled on merits then it could put anything in that portion of the ruling it chose. Why the Court did what it did first requires an examination of what the Court wished to convey so fervently that it ignored its own doctrine to do so. The matter is obvious. The Court was so intent on presenting matter it discussed it twice, once in the Court opinion and again in the concurring opinion. As will be shown, the Court discussed and ruled on the issue of the constitutional power of Congress, the amendment process and the political question doctrine without the matter ever being brought up by any party to the suit. The Court opinion stated: “The state court adopted the view expressed by text-writers that a state legislature which has rejected an amendment proposed by the Congress may later ratify. [The Court footnoted Jameson on Constitutional Conventions, Secs 576-581; Willoughby on the Constitution, Sec. 329a.] The argument in support of that view is that Article V says nothing of rejection but speaks only of ratification and provides that a proposed amendment shall be valid as part of the Constitution when ratified by three-fourths of the States; that the power to ratify is thus conferred upon the State by the Constitution and, as a ratifying power, persists despite a previous rejection. The opposing view proceeds on an assumption that if ratification by 'Conventions' were prescribed by the Congress, a convention could not reject and, having adjourned sine die, be reassembled and ratify. It is also premised, in accordance with views expressed by text-writers, that ratification if once given cannot afterwards be rescinded and the amendment rejected, and it is urged that the same effect in the exhaustion of the State's power to act should be ascribed to rejection; that a State can act 'but once, either by

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convention or through its legislature'. [The Court footnoted Jameson, op.cit., Secs. 582-584; Willoughby, op.cit., Sec. 329a; Ames, ‘Proposed Amendments to the Constitution’, House Doc. No. 353, Pt. 2, 54th Cong., 2d Sess., pp.299, 300.] Historic instances are cited [referring to historic references cited in Jameson, Willoughby et. al.]. In 1865, the Thirteenth Amendment was rejected by the legislature of New Jersey which subsequently ratified it, but the question did not become important as ratification by the requisite number of States had already been proclaimed. The question did arise in connection with the adoption of the Fourteenth Amendment. The legislatures of Georgia, North Carolina and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868. Ohio and New Jersey first ratified and then passed resolutions withdrawing their consent. As there were then thirty-seven States, twenty-eight were needed to constitute the requisite three-fourths. On July 9, 1868, the Congress adopted a resolution requesting the Secretary of State to communicate 'a list of the States of the Union whose legislatures have ratified the fourteenth article of amendment', and in Secretary Seward's report attention was called to the action of Ohio and New Jersey. On July 20th Secretary Seward issued a proclamation reciting the ratification by twentyeight States, including North Carolina, South Carolina, Ohio and New Jersey, and stating that it appeared that Ohio and New Jersey had since passed resolutions withdrawing their consent and that 'it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid and therefore ineffectual'. The Secretary certified that if the ratifying resolutions of Ohio and New Jersey were still in full force and effect, notwithstanding the attempted withdrawal, the amendment had become a part of the Constitution. On the following day the Congress adopted a concurrent resolution which, reciting that three- fourths of the States having ratified (the list including North Carolina, South Carolina, Ohio and New Jersey), declared the Fourteenth Amendment to be a part of the Constitution and that it should be duly promulgated as such by the Secretary of State. Accordingly, Secretary Seward, on July 28th, issued his proclamation embracing the States mentioned in

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the congressional resolution and adding Georgia. [Paragraphs and other notes inserted for reading clarity]. Thus the political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification. While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous 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 amendment.” The concurring opinion of justices Black, Frankfurter, Douglas and Roberts went even further than the Court opinion: “Under the compulsion of that ruling, Mr. Justice ROBERTS Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS and I have participated in the discussion of other questions considered by the Court and we concur in the result reached, but for somewhat different reasons. “The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place 'is conclusive upon the courts.' In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution, call for decisions by a 'political department' of questions of a type which this Court has frequently designated 'political.' And decision of a 'political question' by the 'political department' to which the Constitution has committed it 'conclusively binds the judges, as well as all other officers, citizens, and subjects of ... government.' Proclamation under authority of

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Congress that an amendment has been ratified will carry with it a solemn insurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree. The State court below assumed jurisdiction to determine whether the proper procedure is being followed between submission and final adoption. However, it is apparent that judicial review of or pronouncements upon a supposed limitation of a 'reasonable time' within which Congress may accept ratification; as to whether duly authorized State officials have proceeded properly in ratifying or voting for ratification; or whether a State may reverse its action once taken upon a proposed amendment; and kindred questions, are all consistent only with an ultimate control over the amending process in the courts. And this must inevitably embarrass the course of amendment by subjecting to judicial interference matters that we believe were intrusted by the Constitution solely to the political branch of government. The Court here treats the amending process of the Constitution in some respects as subject to judicial construction, in others as subject to the final authority of the Congress. There is no disapproval of the conclusion arrived at in Dillon v. Gloss, that the Constitution impliedly requires that a properly submitted amendment must die unless ratified within a 'reasonable time.' Nor does the Court now disapprove its prior assumption of power to make such a pronouncement. And it is not made clear that only Congress has constitutional power to determine if there is any such implication in Article V of the Constitution. On the other hand, the Court's opinion declares that Congress has the exclusive power to decide the 'political questions' of whether a State whose legislature has once acted upon a proposed amendment may subsequently reverse its position, and whether, in the circumstances of such a case as this, an amendment is dead because an 'unreasonable' time has elapsed. Such division between the political and judicial branches of the government is made by Article V which grants power over the amending of the Constitution to Congress alone. 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,

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and is not subject to judicial guidance, control or interference at any point. Since Congress has sole and complete control over the amending process, subject to no judicial review, the views of any court upon this process cannot be binding upon Congress, and insofar as Dillon v. Gloss, supra, attempts judicially to impose a limitation upon the right of Congress to determine final adoption of an amendment, it should be disapproved. If Congressional determination that an amendment has been completed and become a part of the Constitution is final and removed from examination by the courts, as the Court's present opinion recognizes, surely the steps leading to that condition must be subject to the scrutiny, control and appraisal of none save the Congress, the body having exclusive power to make that final determination. Congress, possessing exclusive power over the amending process, cannot be bound by and is under no duty to accept the pronouncements upon that exclusive power by this Court or by the Kansas courts. Neither State nor Federal courts can review that power. Therefore, any judicial expression amounting to more than mere acknowledgment of exclusive Congressional power over the political process of amendment is a mere admonition to the Congress in the nature of an advisory opinion, given wholly without constitutional authority.” The dissenting opinion of Justices Butler and McReynolds disagreed with both the court opinion and the concurring opinion. Justice Butler based his dissent on Dillon which he summed by stating, “We definitely held that Article V impliedly requires amendments submitted to be ratified within a reasonable time after proposals; that Congress may fix a reasonable time for ratification, and that the period of seven years fixed by the Congress was reasonable.” [The justice then quoted a major portion of Dillon concluding], “Upon the reasoning of our opinion in that case, I would hold that more than a reasonable time had elapsed [Justice Butler cited the year by year chronology of the ratification of the proposed Child Labor Amendment] and that the judgment of the Kansas supreme court should be reversed.” Justice Butler concluded his dissent by noting a remarkable fact about the Court’s decision to remove itself from ruling on questions involving the amendment process by use of the political question doctrine stating:

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“The point, that the questions-whether more than a reasonable time had elapsed-is not justiciable but one for Congress after attempted ratification by the requisite number of States, was not raised by the parties or by the United States appearing as amicus curiae; it was not suggested by us when ordering reargument. As the Court, in the Dillon case, did directly decide upon the reasonableness of the seven years fixed by the Congress, it ought not now, without hearing argument upon the point, hold itself to lack power to decide whether more than 13 years between proposed by Congress and attempted ratification by Kansas is reasonable.” [Emphasis added]. The Court was fully aware of the requirements of litigation that a Court ruling should be based on the evidence and arguments presented before it and the Court is required to rule on that evidence and arguments, not evidence or arguments it contrives. Justice Frankfurter discussed this issue in his Coleman opinion saying, “In endowing this Court with ‘judicial Power’ the Constitution presupposed an historic content for that phrase and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. … Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters that were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted “Cases” or “Controversies.” It was not for courts to meddle with matters that require no subtlety to be identified as political issues. And even as to the kinds of questions which were the staple of judicial business, it was not for courts to pass upon them as abstract, intellectual problems but only if a concrete, living contest between adversaries called for the arbitrament of law. …. It is not our function, and it is beyond our power, to write legal essays or to give legal opinions, however solemnly requested and however great the national emergency. See the correspondence between Secretary of State Jefferson and Chief Justice Jay, 3 Johnson, Correspondence and Public Papers of John Jay, 486-89. Unlike the role allowed to judges in a few state courts and to the Supreme Court of Canada, our exclusive business is litigation. The requisites of litigation are not satisfied when questions of constitutionally though conveyed through the outward forms of a conventional court proceeding do not bear special relation to a particular litigant. The scope and consequences of our doctrine of judicial review over executive and

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legislative action should make us observe fastidiously the bounds of the litigious process within which awe are confined. No matter how seriously infringement of the Constitution may be called into questions, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to us all.” [Emphasis added]. Frankfurter’s last comment referred to Fairchild v. Hughes, 258 U.S. 126 (1922) which states, “Plaintiff has only the right, possessed by every citizen, to require that the government be administered according to law and that the public moneys be not wasted.” [Emphasis added]. According to justices Butler and McReynolds Mr. President, who obviously were in a position to know, the remaining members of the Court imposed the above interpretation of the political question doctrine and the absolute control of the amendment process by Congress without benefit of evidence or argument presented to it as no party connected with the Coleman lawsuit ever raised the issue either in evidence or argument. Despite Justice Frankfurter’s pronouncement the Court’s business was solely “litigation,” the fact remains the conclusions of the Court in regards to the political question doctrine vis-àvis the amendment process and the power of Congress was done entirely in violation of this fundamental principle of litigation. That principle is any issue presented to a court of law must either be raised as an issue in the subject of a lawsuit, contested as a matter of law or prosecuted or defended by pleadings, evidence or argument in that court of law. In short the matter must be litigated. The Court’s ruling on the political question doctrine in Coleman as stated by two eye witnesses was not raised by any litigant at any time by any means during the entire proceeding and therefore was never litigated. If the Court’s position that it can only deal with litigation is true then this clearly precludes the Court from making conclusions in its ruling not derived from litigation in form of evidence or argument. In sum the Court’s determination granted carte-blanche control of the amendatory process to Congress. It should be noted immediately Mr. President the Court did not address the consequences of Congress exercising such control where such acts are contradicted by direct constitutional text. The Court did note, briefly, Congress “in the exercise of that power,… is governed by the Constitution.” But the overwhelming remainder of the text (and the failure of the Court to describe what the word “governed” means) leads to the conclusion the Court intended “absolute” control by Congress. Such a position is an oxymoron. Constitutional text does not grant absolute control; Coleman states Congress possesses it. The common factor of all amendment process cases adjudicated before the Supreme Court is the desire by the plaintiffs to thwart the amendatory process

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by one means or another so as to prevent a proposed amendment becoming part of the Constitution. In all such cases the Supreme Court has refused these requests. The Court either raised the issue of political question or refuted the proposition on other constitutional grounds. In Coleman, the Court ignored its own precedents and granted Congress free reign under the political question doctrine to control the entire amendatory process despite direct constitutional text to the contrary. The Court justified this decision primarily on the basis of the “special circumstances” of several southern states immediately following the Civil War. These “special circumstances” were that Congress, following the Civil War had transformed the states in military districts rather than sovereign states. The Reconstruction Act of 1867 was unequivocal, “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That said rebel States [all states of the confederacy were listed earlier] shall be divided into military districts and made subject to the military authority of the United States as hereinafter prescribed…” The purpose of this Appendix is neither a discussion of the propriety of the Civil War nor of the events which followed. However as the “special circumstances” the Court referred to have a direct bearing on the calling of a convention, and as part of the purpose of this Appendix is to discuss in some detail all of the relevant Supreme Court rulings relating to the amendatory process an examination of Coleman’s political question doctrine as it relates to the amendment process clearly is in order. Consequently the fact that following the Civil War for a period of years several states were transformed into military districts and during this time period these districts were presented a question of ratification of a proposed amendment[s] to the Constitution is relevant to this Appendix. The following facts Mr. President are irrefutable. Coleman was decided by the Supreme Court in 1939, not in 1866-1870 during the Reconstruction era. In 1939 there was no rebellion by any state in the union. Hence there was no “special circumstance” in existence. Under the terms of Article V ratification of any proposed amendment to the Constitutions is performed only by the states whether by state legislature or state convention. Military districts are not authorized under the Constitution to ratify a proposed amendment. If, as the Reconstruction Act states, the offending states were military districts instead of sovereign states, this means they were not authorized to ratify (or refuse to ratify) a proposed amendment. Under these circumstances therefore the question of ratification of a proposed amendment should never have been presented to them in the first place either legislatively or by any other means. There is no requirement in Article V that mandates states must ratify a proposed amendment meaning states retain the sovereign right to refuse to ratify a proposed amendment. Under no circumstances then, even in a state of

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rebellion, can a ratification vote by a state against a proposed amendment be considered an act of rebellion as the state under all circumstances retains the right to refuse to ratify a proposed amendment unless that state is no longer sovereign in which case it ceases to have the authority to ratify an amendment in the first place. The Reconstruction Act legislatively dictated the states subject to that act must ratify a proposed amendment. Thus, in Coleman without the matter even being litigated before it and without any justification of present circumstances requiring such action, the Supreme Court, sanctioned under the guise of the political question doctrine the right of Congress to legislatively dictate the ratification vote of the states and thus pre-determine the ratification outcome. As the Court expressly assigned this power only to Congress it automatically denied such power to the convention. Moreover as noted by the Court decision this dictatorial legislative power was not limited just to the southern states where three states voted to reject the proposed 14th Amendment. Congress also ignored the actions of two northern states Ohio and New Jersey who had first ratified then retracted their ratification of the then proposed 14th Amendment. The governments of the southern states were then replaced under military command and the new state governments “voted” to accept the 14th Amendment. While the Reconstruction Act was vetoed by President Andrew Johnson, his veto was overridden by Congress. Therefore military authority, that is command of the military, came from Congress and not the president as commander in chief. For all intents and purposes Mr. President, Congress usurped the president as command in chief and imposed a ratification vote on the states by legislative decree later sanction by the Supreme Court in 1939. On its face, it would appear the Court had answered the question rescission of ratification and--some would argue--the question of convention applications completely in the hands of Congress to decide at its discretion with its Coleman ruling. The problem is Article V doesn’t grant Congress any discretion and the Court emphatically stated this fact in Sprague. As with state applications for a convention, the language is absolute. Upon ratification by three-fourths of the states, a proposed amendment becomes part of the Constitution. There is no language indicating Congress “controls” the process. The historic record is clear: the Founders declared a convention call peremptory; Congress has no discretion in the calling of a convention to propose amendments. Most importantly, is the “resolution” the Court touted as the basis for its decision in Coleman. Obviously, a decision based on an event can be no more conclusive than the event itself which in the case of Coleman was the ratification of the 14th Amendment. In the ratification of the 14th Amendment, Congress allowed that rescissions by two northern states that had previously voted in favor of ratification of the 14th Amendment were invalid, while simultaneously holding three southern states

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which voted against ratification of the 14th Amendment, then rescinded that vote in order to vote in favor of ratification (after their state legislatures were militarily removed by order of Congress), were valid. Thus, in the north, Congress ruled the states could not recess their ratifications after the state had voted, but in the south, the Congress held the states could recess their ratification vote after the state had voted. The political decision of Congress therefore was the states could and could not recess their ratification vote. In sum, the Court sanctioned that regardless of the circumstances of how a vote favoring ratification was arrived once a state so stipulated, under no circumstances could it withdraw or change that decision. The problem is no such authority is granted Congress in the Constitution and as discussed earlier, certainly no legislative authority is granted to Congress to compel any state under any circumstance to vote a certain way regarding the proposal of an amendment. Still, Coleman states Congress is “governed” by the Constitution. Yet the Court sanctioned the act of Congress legislatively dictating the outcome of a ratification vote by the states in Coleman. The question, in light of previous Court rulings clearly contrary of the Coleman conclusion as well as the absence of constitutional text supporting Coleman together with fact the Court did not cite case law to support its conclusions lead to the question of whether the states ratified the 14th Amendment or did Congress? As previously discussed Congress chooses the “mode” of ratification for a proposed amendment, ratification either by state legislature or state convention. The Constitution does not describe a third mode—total control by the Congress with use of military force to replace state legislatures if they disagree with a proposed amendment from Congress. The question of another “mode” of ratification clearly relates to the convention. If Congress is empowered to legislatively dictate states shall ratify a congressionally proposed amendment does this also mean Congress can legislatively decree states shall not ratify a proposed amendment originated from an Article V Convention? As if the situation were not already muddled, the concurring opinion written by Justice Black exasperated the situation even more by extending the doctrine enunciated by Chief Justice Hughes in his “Court opinion” even further than contemplated in the “opinion of the Court.” However the concurring opinion justifies the Court’s heretofore inexplicable action of granting Congress powers far beyond those specified in the Constitution to the point of tyranny yet simultaneously stating Congress is “governed” by the Constitution while failing to emphatically state (with five clearly defined votes) the petitioners in the case had standing. Coleman is an advisory opinion. The concurring opinion mutates a simple ministerial duty of counting ratification votes from the states into dictatorial control of the entire

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amendment process. Proof of this assertion is in the text of the concurring opinion which states, “Such division between the political and judicial branches of the government is made by Article V which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress. … Since Congress has sole and complete control over the amending process, subject to no judicial review, the views of any court upon this process cannot be binding upon Congress… Congress, possessing exclusive power over the amending process, cannot be bound by and is under no duty to accept the pronouncements upon the exclusive power by this Court or by the Kansas courts. Neither State nor Federal courts can review that power. Therefore, any judicial expression amounting more than mere acknowledgment of exclusive Congressional power over the political process of amendment is a mere admonition to the Congress in the nature of an advisory opinion, given wholly without constitutional authority.” The text of the Constitution refutes the Court—“A mere reading demonstrates that this is true.” Both the people in their roll of elective approbation (as the Court notes repeatedly in prior decisions) and the states play central roles in the amendment process. Hence the “control” of the process is separated, not unified to the point of tyranny. On what basis can the Court assert “exclusive” control by Congress? Unlike the “standard” Court ruling, the Court does not rely on prior caselaw for substantiation. Instead it relies exclusively on historic record of “special circumstance.” Moreover, the foundation of consenting justices permitting the “Court opinion,” standing—requires obtuse inference to determine. Three “Court opinion” justices favor standing, four concurring justices do not. Hence, for the Court to support standing in order to rule on merit that support must derived from the two dissenting justices—yet no such statement is found in their opinion nor does the “Court opinion” mention their support. Thus the obtuse—presuming as the two justices favor the petitioners they naturally support their standing giving a 5-4 position on standing. But this presumption presents a problem. In order for a “Court opinion” to exist, that is an opinion by at least five justices, the “Court opinion” and “concurring opinion” of Black must be construed as being combined into a single ruling. Hence, all reasons given in both opinions must be considered as the majority 7-2 decision of the Court. The problem is if this principle of concurrence applies then the dissenting opinion directly opposing the “Court opinion” must also be combined with the “Court opinion” as it is required to provide the standing necessary to give the

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Court jurisdiction to rule on the merits and thus determine Congress has exclusive control of the amendment process. The problem is if the dissenting opinion is combined with the “Court opinion” the Court opinion is nullified by the dissenting opinion thus defeating the entire proposition. Simply stated there is no way to reconcile the requirements of standing being satisfied so as to permit jurisdiction prior to a ruling on merits as the Court has countless times before and since stated given the statements of the Court justices, particularly in the Black concurring opinion and the dissenting opinion. The only possible conclusion is Coleman, despite numerous pages describing a basis of standing, is a ruling in which the justices (or at least seven of them) believed standing was not required to present their opinion fiving Congress “exclusive” control of the amendment process. The Constitution disagrees. On what basis is this discrepancy reconciled? Setting aside the quandary of standing other evidence in Coleman indicate a unique class of ruling created by the Court where everything presented simply doesn’t make sense but nevertheless the Court feels comfortable in making its ruling. Proof of this premise is basic logic: if the Court believed its statements were wrong, why on earth would it then make them? For example, Chief Justice Hughes brushes aside the matter of the participation of the lieutenant governor’s role in the case and states the Court cannot rule on the question. He states, without explanation, the Court is “equally divided” on the question. The justice fails to explain how a nine member Court with all members participating can be “equally divided” on anything. There three possibilities: (1) the Court was urging overthrow of our form of government by creation of an oligarchy (2) Coleman is an unconstitutional ruling as it was arrived by unconstitutional means or (3) the Court issued a ruling in which standing was not a requirement because it believed the ruling required none. Possibility (1) can be dispensed with immediately. While the words and phrases used by the Court such as “Undivided control of that process has been given by the Article exclusively and completely to Congress. … Since Congress has sole and complete control over the amending process, … Congress, possessing exclusive power over the amending process,…” may suggest creation of an oligarchy as opposed to our current form of government in which the people are sovereign, nowhere in Coleman does the Court affirmatively state Congress should or can assume such power as described. The Court merely cites a historical circumstance where Congress did assume such power under “special circumstances.” In contrast to the Civil War era, such assumption of power by Congress, today, is a violation of federal criminal laws as no such “special circumstances” exist.

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For example, Section 8 (a) (4) of Executive Order 10450 (dealing with oath of office by all government officials) states (in part): “The investigations conducted pursuant to this order shall be designed to develop information as to whether the employment or retention in employment in the Federal service of the person being investigated is clearly consistent with the interests of the national security. Such information shall relate, but shall not be limited, to the following: … Advocacy of use of force or violence to overthrow the government of the United States, or of the alteration of the form of government of the United States by unconstitutional means.” [Emphasis added]. Obviously if members of Congress alter the form of the government of the United States by unconstitutional means—meaning altering the form of government by any other means other than by affirmative use of the amendment process—it clearly constitutes a clear criminal violation on the part of the offending parties. Equally clear is affirmative use of the amendment process cannot be construed so as to grant “exclusive control” of the process to Congress—hence whatever the text of Article V states, Congress must do. Moreover the Court stated in Coleman, (however briefly) that Congress must obey the Constitution in the amendment process. Therefore the finding that Congress “exclusively controls” the process and the text of the Constitution clearly are at odds. Similar criminal laws to the above cited existed at the time of Coleman which prohibited members of the government from attempting to overthrow or unconstitutionally alter our form of government. The Court makes no provision in Coleman that exempts Congress from the effect of such laws. Clearly, given the massive changes necessary to alter our form of government, it would be incumbent on the Court to provide immunity from prosecution by those opposing such an act if the Court actually intended Congress have sole and complete control of the amendment process. As the Court did not grant such immunity, then obviously it did not intend to establish an oligarchy in place of our republican form of government. Possibility (2) that Coleman is an unconstitutional ruling as it was arrived at by unconstitutional means presents a quandary. Over the years the Court has assumed the role of determining what is and what is not constitutional. Within that sphere it must be assumed the Court, like the King in colonial times, can do no wrong. Otherwise the entire concept of the Court having unique constitutional determination fails as the admission of this error implies an outside party capable of (1) such determination and (2) a constitutional authority to correct such error. Thus if the Court issues a ruling, it is presumed that ruling is arrived at by constitutional means used by the Court during its deliberations.

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The quandary lies in the fact Coleman does not fit this profile. Like two mismatched jigsaw pieces, the requirements of standing and merit, both defined by Court doctrine, simply don’t mesh. Either the requirements of standing are not satisfied as there is no clear cut establishment of consent by the necessary five justices or the ruling on merits is compromised in order to achieve the necessary pentamerous set of justices required for standing. If the Court postulated premises of both political question and standing are absolutely true, that is to say, true in all circumstances then in the case of Coleman standing must exist prior to assumption by the Court of jurisdiction to rule on merits. But Coleman lacks conclusive textual proof that such circumstance is actually achieved. Indeed there is textual evidence to the contrary. Therefore despite pages of text in Coleman devoted to justifying standing in “the Court opinion” consisting of three justices, the fact remains there is no textual proof where five justices actually stated the petitioners had the necessary standing to grant the Court jurisdiction to rule on merits. Indeed the opposite is true—justices went out of their way to state petitioners didn’t have standing. This being the case, the only possible conclusion is the Court dispensed with its own supposed constitutionally mandated doctrine and ruled anyway on the merits of the case. As a definitive statement that can be attributed to five justices in regards to the standing of the petitioners cannot be found in Coleman, logically it is not a constitutional ruling as the basis for its determination is unconstitutional. However unless actually implemented the methodology of determination is irrelevant. Violation of federal criminal law requires an action by person or persons not an analysis of a historic Court ruling in order to be applied. Thus unless the Court affirmatively uses Coleman to actually advance its proposition of total congressional control of the amendment process or members of Congress attempt such action by disobedience of the amendment process, Coleman cannot be considered unconstitutional. When such acts do occur then, as noted, those members of the Court (and government) would run afoul of federal criminal laws. Therefore the methodology used by the Court to arrive at the Coleman decision is immaterial. It is the effect of Coleman that matters, not whether the Court obeyed its own rules. This leaves possibility (3)—the Court issued a ruling in which standing was not a requirement because it believed the ruling required none. If so, the Court placed the amendment process in a particular (ad hoc) class of lawsuit where standing is not required. Fortunately the text of Coleman provides the answers to possibility (3). As noted Mr. President the Court is ambivalent in its ruling. The Court states Congress can use military force to achieve a ratification vote by state legislatures and can issue clearly contradictory conclusions as to ratification results—yes you can rescind to some states (the south), no you

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can’t rescind to other states—the north. Then there is the question of how nine justices can be “evenly divided” on a question presented to them. The answer is found in Justice Black’s concurring opinion which states an opinion of the Court in regards to the amendment process is an advisory opinion “given wholly without constitutional authority.” There is no requirement of standing to sue in an advisory opinion. Unlike ordinary litigation (such as the kind Justice Frankfurter addressed in his dissent) which involves one party suing another over a legal issue, in an advisory opinion no one is actually sued. True, in form Coleman resembled every other Court ruling issued by the Supreme Court. However in substance it was clearly different. For the Court’s opinion to be a “Court opinion” required the consent of at least five justices. Seven justices—Hughes, Stone, Reed, Black, Roberts, Frankfurter and Douglas—provided that consent. However this required that both the “opinion of the Court” and the concurring opinion be combined to form the “opinion of the Court” in Coleman. The concurring opinion (and therefore the morphed “opinion of the Court”) clearly states any opinion by the Court is an advisory opinion given “wholly without constitutional authority.” This neatly explains why neither the Court opinion nor the concurring opinion cited a single previous Supreme Court ruling to enforce its conclusions. It also explains why the Court, in granting its “absolute control” doctrine to Congress did not feel obligated to address the obvious conflicts raised with other Court rulings such as Hollingsworth, Sprague and so forth. As previously discussed in order for Congress to legislatively control the amendment process requires the consent of the president. Yet the Court appears to simply ignore this constitutional requirement along with failing to explain how Congress can assume powers ordinarily reserved to the president as commander in chief by legislatively directing military action over the states. As discussed, Coleman was issued by the Court in 1939, not 1865. Thus there were no “special circumstances” in existence at that time. The states were neither in a state of rebellion nor likely to be. Yet Coleman contrives that the “special circumstance” of the Civil War apply to Congress under all circumstances at all times regardless of the present political state of the states. This makes no sense unless the ruling is regarded as an advisory opinion as the Court was ruling on a factual state of political affairs regarding the states that simply did not exist at the time of the ruling. The fact Coleman is an advisory opinion neatly explains the Court’s rejection of the rules of standing and justifies the Court addressing the merits of the case when evidence suggests a majority of the justices believed the petitioners lacked standing. Such troublesome issues as jurisdiction do not plague an advisory opinion. The difference between an ordinary opinion and an advisory opinion is standing is optional in an advisory opinion as the Court is not called

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upon to render an actual ruling meaning the authority to issue a ruling, the Court’s jurisdiction, is not involved. Another question is the effect of Coleman on the constitutionality of standing. Coleman allows the Court to ignore the mandates of the Constitution at its convenience meaning standing is not based on constitutional requirements but on the Court’s contrivance. The only resolution of this issue which leaves standing “standing” as a constitutional doctrine is to accept Coleman placed the amendment process in a unique ad hoc class of lawsuit—the advisory opinion—where standing is not required. Thus Coleman is the greatest “ad hoc” version of standing ever contrived by the Court demonstrating the Court believes standing is not binding on the Court and can be therefore discarded as its discretion making the “doctrine” of standing meaningless. What apparently was forgotten by the 1939 Supreme Court in its recommendation that Congress have “absolute control” of the amendment process and that such recommendation is given “wholly without constitutional authority” means the Court divorced itself not only from its authority given it by the Constitution to issue such a ruling but from any constitutional immunity or privilege attached to the judiciary or Congress by the Constitution. Thus Coleman was enacted by seven justices speaking as seven citizens rather than as seven federal justices. The term “wholly without constitutional authority” clearly was intended to include all the Constitution including immunity from any sanctions that might be imposed upon the Court or Congress based on laws derived from the Constitution which do not recognize the “absolute control” of Congress over the amendment process nor the authority of the Court to issue or enforce such a ruling. By its own stipulation, Coleman is an advisory opinion and therefore as an advisory opinion it has no force of law nor any constitutional effect on the amendment process meaning the other rulings cited in the Appendix made prior to Coleman are the prevailing rule of law regarding the convention. Nevertheless Mr. President neither Congress nor the Courts are immune from the consequences of Coleman should either act to enforce its advisory ruling.

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U.S. Supreme Court COLEMAN v. MILLER, 307 U.S. 433 (1939) 307U.S.433 COLEMAN et al.

v. MILLER, Secretary of the Senate of State of Kansas, et al. No. 7. RearguedApril 17, 18, 1939. Decided June 5, 1939. [307 U.S. 433, 435] Messrs. Robert Stone, of Topeka, Kan., and Rolla W. Coleman, of Olathe, Kan., for petitioners.

Mr. Clarence V. Beck, of Topeka, Kan., for respondents. Mr. Robert H. Jackson, Sol. Gen., for the United States, as amicus curiae, by special leave of Court. Mr. Chief Justice HUGHES delivered the opinion of the Court. In June, 1924, the Congress proposed an amendment to the Constitution, known as the Child Labor Amendment. 1 In January, 1925, the Legislature of Kansas adopted a resolution rejecting the proposed amendment and a certified copy of the resolution was sent to the Secretary of State of the United States. In January, 1937, a resolution known as 'Senate Concurrent Resolu- [307 U.S. 433, 436] tion No. 3' was introduced in the Senate of Kansas ratifying the proposed amendment. There were forty senators. When the resolution came up for consideration, twenty senators voted in favor of its adoption and twenty voted against it. The Lieutenant Governor, the presiding officer of the Senate, then cast his vote in favor of the resolution. The resolution was later adopted by the House of Representatives on the vote of a majority of its members. This original proceeding in mandamus was then brought in the Supreme Court of Kansas by twenty-one members of the Senate, including the twenty senators who had voted against the resolution, and three members of the house of representatives, to compel the Secretary of the Senate to erase an endorsement on the resolution to the effect that it had been adopted by the Senate and to endorse thereon the words

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'was not passed', and to restrain the officers of the Senate and House of Representatives from signing the resolution and the Secretary of State of Kansas from authenticating it and delivering it to the Governor. The petition challenged the right of the Lieutenant Governor to cast the deciding vote in the Senate. The petition also set forth the prior rejection of the proposed amendment and alleged that in the period from June, 1924, to March, 1927, the amendment had been rejected by both houses of the legislatures of twenty-six states, and had been ratified in only five states, and that by reason of that rejection and the failure of ratification within a reasonable time the proposed amendment had lost its vitality. An alternative writ was issued. Later the Senate passed a resolution directing the Attorney General to enter the appearance of the State and to represent the State as its interests might appear. Answers were filed [307 U.S. 433, 437] on behalf of the defendants other than the State and plaintiffs made their reply. The Supreme Court found no dispute as to the facts. The court entertained the action and held that the Lieutenant Governor was authorized to cast the deciding vote, that the proposed amendment retained its original vitality, and that the resolution 'having duly passed the House of Representatives and the Senate, the act of ratification of the proposed amendment by the Legislature of Kansas was final and complete'. The writ of mandamus was accordingly denied. 146 Kan. 390, 71 P.2d 518, 526. This Court granted certiorari. 303 U.S. 632 , 58 S.Ct. 758 First.-The jurisdiction of this Court.-Our authority to issue the writ of certiorari is challenged upon the ground that petitioners have no standing to seek to have the judgment of the state court reviewed, and hence it is urged that the writ of certiorari should be dismissed. We are unable to accept that view. The state court held that it had jurisdiction; that 'the right of the parties to maintain the action is beyond question' .2 The state court thus determined in substance that members of the legislature had standing to seek, and the court had jurisdiction to grant, mandamus to compel a proper record of legislative action. Had the questions been solely state questions, the matter would [307 U.S. 433, 438] have ended there. But the questions raised in the instant case arose under the Federal Constitution and these questions were entertained and decided by the state court. They arose under Article V of the Constitution, U.S.C. A., which alone conferred the power to amend and determined the manner in which that power could be exercised. Hawke v. Smith (No. 1), 253 U.S. 221, 227 , 40 S.Ct. 495, 497, 10 A.L.R. 1504; Leser v. Garnett, 258 U.S. 130, 137 , 42 S.Ct. 217. Whether any or all of the questions thus raised and decided are deemed to be justiciable or political, they are exclusively federal questions and not state questions. We find the cases cited in support of the contention, that petitioners lack an adequate interest to invoke our jurisdiction to review, to be inapplicable. 3 Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. Petitioners come directly within the provisions of the statute governing our appellate jurisdiction. They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect and the state court has denied that right and privilege. As the validity of a state statute was not assailed, the remedy by appeal was not available, Jud.Code, Sec. 237(a ), 28 U.S.C. 344(a), 28 U.S.C.A. 344(a), and the appropriate remedy was by writ of certiorari which we granted. Jud.Code, Sec. 237(b), 28 U.S. C. 344(b), 28 U.S.C.A. 344(b). The contention to the contrary is answered by our decisions in Hawke v. Smith, supra, and Leserv. Garnett, [307 U.S. 433, 439] supra. In Hawke v. Smith, supra, the plaintiff in error, suing as a 'citizen and

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elector of the State of Ohio, and as a taxpayer and elector of the County of Hamilton', on behalf of himself and others similarly situated, filed a petition for an injunction in the state court to restrain the Secretary of State from spending the public money in preparing and printing ballots for submission of a referendum to the electors on the question of the ratification of the Eighteenth Amendment to the Federal Constitution, U.S.C.A. A demurrer to the petition was sustained in the lower court and its judgment was affirmed by the intermediate appellate court and the Supreme Court of the State. This Court entertained jurisdiction and, holding that the state court had erred in deciding that the State had authority to require the submission of the ratification to a referendum, reversed the judgment. In Leser v. Garnett, supra, qualified voters in the State of Maryland brought suit in the state court to have the names of certain women stricken from the list of qualified voters on the ground that the constitution of Maryland limited suffrage to men and that the Nineteenth Amendment to the Federal Constitution, U.S.C.A. has not been validly ratified. The state court took jurisdiction and the Court of Appeals of the State affirmed the judgment dismissing the petition. We granted certiorari. On the question of our jurisdiction we said: 'The petitioners contended, on several grounds, that the amendment had not become part of the federal Constitution. The trial court overruled the contentions and dismissed the petition. Its judgment was affirmed by the Court of Appeals of the state (Md.) (139 Md. 46) 114 A. 840; and the case comes here on writ of error. That writ must be dismissed; but the petition for a writ of certiorari, also duly filed, is granted. The laws of Maryland authorized such a suit by a qualified voter against the board of registry. Whether the Nineteenth Amendment has be (307 U.S. 433, 440] come part of the federal Constitution is the question presented for decision'. And holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court. That the question of our jurisdiction in Leser v. Garnett, supra, was decided upon deliberate consideration is sufficiently shown by the fact that there was a motion to dismiss the writ of error for the want of jurisdiction and opposition to the grant of certiorari. The decision is the more striking because on the same day, in an opinion immediately preceding which was prepared for the Court by the same Justice,4 jurisdiction had been denied to a federal court (the Supreme Court of the District of Columbia) of a suit by citizens of the United States, taxpayers and members of a voluntary association organized to support the Constitution, in which it was sought to have the Nineteenth Amendment declared unconstitutional and to enjoin the Secretary of State from proclaiming its ratification and the Attorney General from taking steps to enforce it. Fairchild v. Hughes, 258 U.S. 126 , 42 S.Ct. 274, 275. The Court held that the plaintiffs' alleged interest in the question submitted was not such as to afford a basis for the proceeding; that the plaintiffs had only the right possessed by every citizen 'to require that the government be administered according to law and that the public moneys be not wasted' and that this general right did not entitle a private citizen to bring such a suit as the one in question in the federal courts. 5 It (307 U.S. 433, 441] would be difficult to imagine a situation in which the adequacy of the petitioners' interest to invoke our appellate jurisdiction in Leser v. Garnett, supra, could have been more sharply presented. The effort to distinguish that case on the ground that the plaintiffs were qualified voters in Maryland, and hence could complain of the admission to the registry of those alleged not to be qualified, is futile. The interest of the plaintiffs in Leser v. Garnett, supra, as merely qualified voters at general elections is

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certainly much less impressive than the interest of the twenty senators in the instant case. This is not a mere intra-parliamentary controversy but the question relates to legislative action deriving its force solely from the provisions of the Federal Constitution, and the twenty senators were not only qualified to vote on the question of ratification but their votes, if the Lieutenant Governor were excluded as not being a part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution. We are of the opinion that Hawke v. Smith and Leserv. Garnett, supra, are controlling authorities, but in view of the wide range the discussion has taken we may refer to some other instances in which the question of what constitutes a sufficient interest to enable one to invoke our appellate jurisdiction has been involved. The principle that the applicant must show a legal interest in the controversy has been maintained. It has been applied repeatedly in cases where municipal corporations have challenged state legislation affecting their alleged rights and obligations. Being but creatures of the State, municipal corporations have no standing to invoke the contract clause or the provisions of the Fourteenth Amendment of the Constitution in opposition to the will of their creator. 6 But there [307 U.S. 433, 442] has been recognition of the legitimate interest public officials and administrative commissions, federal and state, to resist the endeavor to prevent the enforcement of statutes in relation to which they have official duties. Under the Urgent Deficiencies Act,7 the Interstate Commerce Commission, and commissions representing interested States which have intervened, are entitled as 'aggrieved parties' to an appeal to this Court from a decree setting aside an order of the Interstate Commerce Commission, though the United States refuses to join in the appeal. Interstate Commerce Commission v. Oregon-Washington R. & N. Co., 288 U.S. 14 , 53 S.Ct. 266. So, this Court may grant certiorari, on the application of the Federal Trade Commission, to review decisions setting aside its orders. 8 Federal Trade Commission v. Curtis Publishing Company, 260 U.S. 568 , 43 S.Ct. 210. Analogous provisions authorize certiorari to review decisions against the National Labor Relations Board. 9 National Labor Relations Board v. Jones & Laughlin Corporation, 301U.S.1 , 57 S.Ct. 615, 108 A.L.R. 1352. Under Section 266 of the Judicial Code, 28 U.S.C. 380, 28 U.S.C. 380, where an injunction is sought to restrain the enforcement of a statute of a State or an order of its administrative board or commission, upon the ground of invalidity under the Federal Constitution, the right of direct appeal to this Court from the decree of the required three judges is accorded whether the injunction be granted or denied. Hence, in case the injunction is granted, the state board is entitled to appeal. See, for example, South Carolina Highway Department v. Barnwell Brothers, 303 U.S. 177 , 58 S.Ct. 510. The question of our authority to grant certiorari, on the application of state officers, to review decisions of state courts declaring state statutes, which these officers [307 U.S. 433, 443] seek to enforce, to be repugnant to the Federal Constitution, has been carefully considered and our jurisdiction in that class of cases has been sustained. The original Judiciary Act of 1789 provided in Section 25 10 for the review by this Court of a judgment of a state court 'where is drawn in question the validity ... of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity'; that is, where the claim of federal right had been denied. By the Act of December 23, 1914,11 it was provided that this Court may review on certiorari decisions of state courts sustaining a federal right. The present statute governing our jurisdiction on certiorari contains the corresponding provision that this Court may exercise that jurisdiction 'as well where the Federal claim is sustained as where it is denied'. Jud.Code, Section 7(b), 28 U.S.C. 344(b), 28 U.S. C.A. 344(b). The plain purpose was to provide an opportunity, deemed to be important and appropriate, for the review of the decisions of state courts on constitutional questions however the state court might decide them. Accordingly where the claim of a complainant that a state officer be restrained from enforcing a state statute because of constitutional invalidity is sustained by the

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state court, the statute enables the state officer to seek a reversal by this Court of that decision. In Blodgett v. Silberman, 277 U.S. 1, 7 , 48 S.Ct. 410, 412, the Court granted certiorari on the application of the State Tax Commissioner of Connecticut who sought review of the decision of the Supreme Court of Errors of the State so far as it denied the right created by its statute to tax the transfer of certain securities, which had been placed for safekeeping in New York, on the ground that they [307 U.S. 433, 444] were not within the taxing jurisdiction of Connecticut. Entertaining jurisdiction, this Court reversed the judgment in that respect. Id., 277 U. S. at page 18, 48 S.Ct. at page 416. The question received most careful consideration in the case of Boynton, Attorney General, v. Hutchinson Gas Company, 291 U.S. 656 , 54 S. Ct. 457, where the Supreme Court of Kansas had held a state statute to be repugnant to the Federal Constitution, and the Attorney General of the State applied for certiorari. His application was opposed upon the ground that he had merely an official interest in the controversy and the decisions were invoked upon which the Government relies in challenging our jurisdiction in the instant case. 12 Because of its importance, and contrary to our usual practice, the Court directed oral argument on the question whether certiorari should be granted and after that argument, upon mature deliberation, granted the writ. The writ was subsequently dismissed but only because of a failure of the record to show service of summons and severance upon the appellees in the state court who were not parties to the proceedings here. Boynton v. Hutchinson Gas Co., 292 U.S. 601 , 54 S.Ct. 639. This decision with respect to the scope of our jurisdiction has been followed in later cases. In Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 , 56 S.Ct. 918, 103 A.LR. 1445, we granted certiorari on an application by the warden of a city prison to review the decision of the Court of Appeals of the State on habeas corpus, ruling that the minimum wage law of the State violated the Federal Constitution. This Court decided the case on the merits. In Kelly v. Washington ex rel. Foss Company, 302 U.S. 1 , 58 S.Ct. 87, we granted certiorari, on the application of the state authorities charged with the enforcement of the state law relating to the inspection and regulation of vessels, to review the decision of the state court holding the statute invalid in its application to navigable waters. We concluded that the state act had a permissible field of operation and the decision of the [307 U.S. 433, 445] state court in holding the statute completely unenforceable in deference to federal law was reversed. This class of cases in which we have exercised our appellate jurisdiction on the application of state officers may be said to recognize that they have an equate interest in the controversy by reason of their duty to enforce the state statutes the validity of which has been drawn in question. In none of these cases could it be said that the state officers invoking our jurisdiction were sustaining any 'private damage'. While one who asserts the mere right of a citizen and taxpayer of the United States to complain of the alleged invalid outlay of public moneys has no standing to invoke the jurisdiction of the federal courts ( Frothingham v. Mellon, 262 U.S. 447, 480 , 486 S., 487, 43 S.Ct. 597, 598, 600), the Court has sustained the more immediate and substantial right of a resident taxpayer to invoke the interposition of a court of equity to enjoin an illegal use of moneys by a municipal corporation. Crampton v. Zabriskie, 101 U.S. 601 , 609; Frothingham v. Mellon, supra. In Heim v. McCall, 239 U.S. 175 , 36 S.Ct. 78, Ann.Cas.1917B, 287, we took jurisdiction on a writ of error sued out by a property owner and taxpayer, who had been given standing in the state court, for the purpose of reviewing its decision sustaining the validity under the Federal Constitution of a state statute as applied to contracts for the construction of public works in the City of New York, the enforcement of which was alleged to involve irreparable loss to the city and hence to be inimical to the interests of the taxpayer.

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In Smileyv. Holm, 285 U.S. 355 , 52 S.Ct. 397, we granted certiorari on the application of one who was an 'elector', as well as a 'citizen' and 'taxpayer', and who assailed under the Federal Constitution a state statute establishing congressional districts. Passing upon the merits we held that the function of a state legislature in prescribing the time, place and manner of holding elections for representatives [307 U.S. 433, 446] in Congress under Article I, Section 4, U.S.C.A.Const., was a law-making function in which the veto power of the state governor participates, if under the state constitution the governor has that power in the course of the making of state laws, and accordingly reversed the judgment of the state court. We took jurisdiction on certiorari in a similar case from New York where the petitioners were 'citizens and voters of the State' who had sought a mandamus to compel the Secretary of State ofNewYork to certify that representatives in Congress were to be elected in the congressional districts as defined by a concurrent resolution of the Senate and Assembly of the legislature. There the state court, construing the provision of the Federal Constitution as contemplating the exercise of the law-making power, had sustained the defense that the concurrent resolution was ineffective as it had not been submitted to the Governor for approval, and refused the writ of mandamus. We affirmed the judgment. Koenig v. Flynn, 285 U.S. 375 , 52 S.Ct. 403. In the light of this course of decisions, we find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision. Second.-The participation of the Lieutenant Governor.-Petitioners contend at, in the light of the powers and duties of the Lieutenant Governor and his relation to the Senate under the state constitution, as construed by the supreme court of the state, the Lieutenant Governor was not a part of the 'legislature' so that under Article V of the Federal Constitution, he could be permitted to have a deciding vote on the ratification of the [307 U.S. 433, 44 7] proposed amendment, when the senate was equally divided. Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point. Third.-The effect of the previous rejection of the amendment and of the lapse of time since its submission. The state court adopted the view expressed by text-writers that a state legislature which has rejected an amendment proposed by the Congress may later ratify. 13 The argument in support of that view is that Article V says nothing of rejection but speaks only of ratification and provides that a proposed amendment shall be valid as part of the Constitution when ratified by three-fourths of the States; that the power to ratify is thus conferred upon the State by the Constitution and, as a ratifying power, persists despite a previous rejection. The opposing view proceeds on an assumption that if ratification by 'Conventions' were prescribed by the Congress, a convention could not reject and, having adjourned sine die, be reassembled and ratify. It is also premised, in accordance with views expressed by text-writers,14 that ratification if once given cannot afterwards be rescinded and the amendment rejected, and it is urged that the same effect in the exhaustion of the State's power to act should be ascribed to rejection; that a State can act 'but once, either by convention or through its legislature'. [307 U.S. 433, 448] Historic instances are cited. In 1865, the Thirteenth Amendment was rejected by the legislature of New Jersey which subsequently ratified it, but the question did not become important as ratification by the requisite number of States had 1.

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already been proclaimed. 15 The question did arise in connection with the adoption of the Fourteenth Amendment. The legislatures of Georgia, North Carolina and South Carolina had rejected the amendment in November and December, 1866.16 New governments were erected in those States (and in others) under the direction of Congress. 17 The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868.18 Ohio and New Jersey first ratified and then passed resolutions withdrawing their consent. 19 As there were then thirty-seven States, twenty-eight were needed to constitute the requisite three-fourths. On July 9, 1868, the Congress adopted a resolution requesting the Secretary of State to communicate 'a list of the States of the Union whose legislatures have ratified the fourteenth article of amendment',20 and in Secretary Seward's report attention was called to the action of Ohio and New Jersey. 21 On July 20th Secretary Seward issued a proclamation reciting the ratification by twenty-eight States, including North Carolina, South Carolina, Ohio and New Jersey, and stating that it appeared that Ohio and New Jersey had since passed resolutions withdrawing their consent and that 'it is [307 U.S. 433, 449] deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid and therefore ineffectual'. The Secretary certified that if the ratifying resolutions of Ohio and New Jersey were still in full force and effect, notwithstanding the attempted withdrawal, the amendment had become a part of the Constitution. 22 On the following day the Congress adopted a concurrent resolution which, reciting that three- fourths of the States having ratified (the list including North Carolina, South Carolina, Ohio and New Jersey),23 declared the Fourteenth Amendment to be a part of the Constitution and that it should be duly promulgated as such by the Secretary of State. Accordingly, Secretary Seward, on July 28th, issued his proclamation embracing the States mentioned in the congressional resolution and adding Georgia. 24 Thus the political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification. 25 While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This [307 U.S. 433, 450] decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous 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 amendment. The precise question as now raised is whether, when the legislature of the State, as we have found, has actually ratified the proposed amendment, the Court should restrain the state officers from certifying the ratification toe Secretary of State, because of an earlier rejection, and thus prevent the question from coming before the political departments. We find no basis in either Constitution or statute for such judicial action. Article V, speaking solely of ratification, contains no provision as to rejection. 26 Nor has the Congress enacted a statute relating to rejections. The statutory provision with respect to constitutional amendments is as follows: 'Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the

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States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States'.27 [307 U.S. 433, 451] The statute presupposes official notice to the Secretary of State when a state legislature has adopted a resolution of ratification. We see no warrant for judicial interference with the performance of that duty. See Leserv. Garnett, supra, 258 U.S. at page 137, 42 S.Ct. at page 217. 2. The more serious question is whether the proposal by the Congress of the Amendment had lost its vitality through lapse of time and hence it could not be ratified by the Kansas legislature in 1937. The argument of petitioners stresses the fact that nearly thirteen years elapsed between the proposal in 1924 and the ratification in question. It is said that when the amendment was proposed there was a definitely adverse popular sentiment and that at the end of 1925 there had been rejection by both houses of the legislatures of sixteen States and ratification by only four States, and that it was not until about 1933 that an aggressive campaign was started in favor of the amendment. In reply, it is urged that Congress did not fix a limit of time for ratification and that an unreasonably long time had not elapsed since the submission; that the conditions which gave rise to the amendment had not been eliminated; that the prevalence of child labor, the diversity of state laws and the disparity in their administration, with the resulting competitive inequalities, continued to exist. Reference is also made to the fact that a number of the States have treated the amendment as still pending and that in the proceedings of the national government there have been indications of the same view. 28 It is said that there were fourteen ratifications in 1933, four in 1935, one in 1936, and three in 1937. [307 U.S. 433, 452] We have held that the Congress in proposing an amendment may fix a reasonable time for ratification. Dillon v. Gloss, 256 U.S. 368 , 41 S.Ct. 510. There we sustained the action of the Congress in providing in the proposed Eighteenth Amendment that it should be inoperative unless ratified within seven years. 29 No limitation of time for ratification is provided in the instant case either in the proposed amendment or in the resolution of submission. But petitioners contend that, in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had. We are unable to agree with that contention. It is true that in Dillon v. Gloss, supra, the Court said that nothing was found in Article V which suggested

that an amendment once proposed was to be open to ratification for all time, or that ratification in some States might be separated from that in others by many years and yet be effective; that there was a strong suggestion to the contrary in that proposal and ratification were but succeeding steps in a single endeavor; that as amendments were deemed to be prompted by necessity, they should be considered and disposed of presently; and that there is a fair implication that ratification must be sufficiently contemporaneous in the required number of States to reflect the will of the people in all sections at relatively the same period; and hence that ratification must be within some reasonable time after the proposal. These considerations were cogent reasons for the decision in Dillon v. Gloss, supra, that the Congress had the power to fix a reasonable time for ratification. But it does not follow that, whenever Congress has not exercised that power, the Court should take upon itself the responsibility of deciding what con- [307 U.S. 433, 453] stitutes a reasonable time and determine accordingly the validity of ratifications. That question was not involved in Dillon v. Gloss, supra, and, in accordance with familiar principle, what was there said must be read in the light of the point decided. Where are to be found the criteria for such a judicial determination? None are to be found in Constitution or statute. In their endeavor to answer this question petitioners' counsel have suggested that at least two years should be allowed; that six years would not seem to be unreasonably long; that seven years had been used by the Congress as a reasonable period; that one year, six months and thirteen days was the average time used in passing upon amendments which have been ratified since the first ten amendments; that

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three years, six months and twenty-five days has been the longest time used in ratifying. To this list of variables, counsel add that 'the nature and extent of publicity and the activity of the public and of the legislatures of the several States in relation to any particular proposal should be taken into consideration'. That statement is pertinent, but there are additional matters to be examined and weighed. When a proposed amendment springs from a conception of economic needs, it would be necessary, in determining whether a reasonable time had elapsed since its submission, to consider the economic conditions prevailing in the country, whether these had so far changed since the submission as to make the proposal no longer responsive to the conception which inspired it or whether conditions were such as to intensify the feeling of need and the appropriateness of the proposed remedial action. 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 [307 U.S. 433, 454] 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 the 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. 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 consideration 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. It would unduly lengthen this opinion to attempt to review our decisions as to the class of questions

deemed to be political and not justiciable. In determining whether a question falls within that category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determina- (307 U.S. 433, 455] tion are dominant considerations. 30 There are many illustrations in the filed of our conduct of foreign relations, where there are 'considerations of policy, considerations of extreme magnitude, and certainly entirely incompetent to the examination and decision of a court of justice'. Ware v. Hylton, 3 Dall. 199, 260.31 Questions involving similar considerations are found in the government of our internal affairs. Thus, under Article IV, section 4, of the Constitution, U.S.C.A. providing that the United States 'shall guarantee to every State in this Union a Republican Form of Government', we have held that it rests with the Congress to decide what government is the established one in a State and whether or not it is republican in form. Luther v. Borden, 7 How. 1, 42. In that case Chief Justice Taney observed that 'when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized 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'. So, it was held in the same case that under the provision of the same Article for the protection of each of the States 'against domestic violence' it rested with the Congress 'to determine upon the means proper to be adopted to fulfill this guarantee'. Id., 7 How. at page 43. So, in Pacific Telephone Companyv. Oregon, 223 U.S. 118 , 32 S.Ct. 224, 231, we considered

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that questions arising under the guaranty of [307 U.S. 433, 456] a republican form of government had long since been 'definitely determined to be political and governmental' and hence that the question whether the government of Oregon had ceased to be republican in form because of a constitutional amendment by which the people reserved to themselves power to propose and enact laws independent of the legislative assembly and also to approve or reject any act of that body, was a question for the determination of the Congress. It would be finally settled when the Congress admitted the senators and representatives of the State. For the reasons we have stated, which we think to be as compelling as those which underlay the cited decisions, we think that the Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amendment had lost its vitality prior to the required ratifications. The state officials should not be restrained from certifying to the Secretary of State the adoption by the legislature of Kansas of the resolution of ratification. As we find no reason for disturbing the decision of the Supreme Court of Kansas in denying the

mandamus sought by petitioners, its judgment is affirmed but upon the grounds stated in this opinion. AFFIRMED. Concurring opinion by Mr. Justice BLACK, in which Mr. Justice ROBERTS, Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS join. Although, for reasons to be stated by Mr. Justice FRANKFURTER, we believe this cause should be dismissed, the ruling of the Court just announced removes from the case the question of petitioners' standing to sue. Under the compulsion of that ruling,1 Mr. Justice ROBERTS, [307 U.S. 433, 457] Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS and I have participated in the discussion of other questions considered by the Court and we concur in the result reached, but for somewhat different reasons. The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place 'is conclusive upon the courts.' 2 In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution, call for decisions by a 'political department' of questions of a type which this Court has frequently designated 'political.' And decision of a 'political question' by the 'political department' to which the Constitution has committed it 'conclusively binds the judges, as well as all other officers, citizens, and subjects of ... government.' 3 Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn insurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the [307 U.S. 433, 458] Constitution, leaving to the judiciary its traditional authority of interpretation. 4 To the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree. The State court below assumed jurisdiction to determine whether the proper procedure is being followed between submission and final adoption. However, it is apparent that judicial review of or pronouncements upon a supposed limitation of a 'reasonable time' within which Congress may accept ratification; as to

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whether duly authorized State officials have proceeded properly in ratifying or voting for ratification; or whether a State may reverse its action once taken upon a proposed amendment; and kindred questions, are all consistent only with an ultimate control over the amending process in the courts. And this must inevitably embarrass the course of amendment by subjecting to judicial interference matters that we believe were intrusted by the Constitution solely to the political branch of government. The Court here treats the amending process of the Constitution in some respects as subject to judicial construction, in others as subject to the final authority of the Congress. There is no disapproval of the conclusion arrived at in Dillon v. Gloss,5 that the Constitution impliedly requires that a properly submitted amendment must die unless ratified within a 'reasonable time.' Nor does the Court now disapprove its prior assumption of power to make such a pronouncement. And it is not made clear that only Congress has constitutional power to determine if there is any such implication in Article V of the Constitution. On the other hand, the Court's opinion declares that Congress has the exclusive power to [307 U.S. 433, 4E>9] decide the 'political questions' of whether a State whose legislature has once acted upon a proposed amendment may subsequently reverse its position, and whether, in the circumstances of such a case as this, an amendment is dead because an 'unreasonable' time has elapsed. such division between the political and judicial branches of the government is made by Article V which grants power over the amending of the Constitution to Congress alone. 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. Since Congress has sole and complete control over the amending process, subject to no judicial review, the views of any court upon this process cannot be binding upon Congress, and insofar as Dillon v. Gloss, supra, attempts judicially to impose a limitation upon the right of Congress to determine final adoption of an amendment, it should be disapproved. If Congressional determination that an amendment has been completed and become a part of the Constitution is final and removed from examination by the courts, as the Court's present opinion recognizes, surely the steps leading to that condition must be subject to the scrutiny, control and appraisal of none save the Congress, the body having exclusive power to make that final determination. Congress, possessing exclusive power over the amending process, cannot be bound by and is under no duty to accept the pronouncements upon that exclusive power by this Court or by the Kansas courts. Neither State nor Federal courts can review that power. Therefore, any judicial expression amounting to more than mere acknowledgment of exclusive Congressional power over the political process of amendment is a mere admonition to [307 U.S. 433, 460] the Congress in the nature of an advisory opinion, given wholly without constitutional authority. Opinion of Mr. Justice FRANKFURTER. It is the view of Mr. Justice ROBERTS, Mr. Justice BLACK, Mr. Justice DOUGLAS and myself that the

petitioners have no standing in this Court. In endowing this Court with 'judicial Power' the Constitution presupposed an historic content for that phrase and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. The Constitution further explicitly indicated the limited area within which judicial action was to move-however far-reaching the consequences of action within that area-by extending 'judicial Power' only to 'Cases' and 'Controversies'. Both by what they said and by what they implied, the

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framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters that were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel oflawyers constituted 'Cases' or 'Controversies.' It was not for courts to meddle with matters that require no subtlety to be identified as political issues. 1 And even as to the kinds of questions which were the staple of judicial business, it was not for courts to pass upon them as abstract, intellectual problems but only if a concrete, living contest between adversaries called for the arbitrament oflaw. Compare Muskrat v. United States, 219 U.S. 346 , 31 S. Ct. 250; Tutun v. United States, 270 U.S. 568 , 46 S.Ct. 425; Willing Chi- [307 U.S. 433, 461] cago Auditorium Ass'n, 277 U.S. 274 , 48 S.Ct. 507; Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 , 53 S.Ct. 345, 87 A. L.R. 119i. As abstractions, these generalities represent common ground among judges. Since, however, considerations governing the exercise of judicial power are not mechanical criteria but derive from conceptions regarding the distribution of governmental powers in their manifold, changing guises, differences in the application of canons of jurisdiction have arisen from the beginning of the Court's history. 2 Conscious or unconscious leanings toward the serviceability of the judicial process in the adjustment of public controversies clothed in the form of private litigation inevitably affect decisions. For they influence awareness in recognizing the relevance of conceded doctrines of judicial self-limitation and rigor in enforcing them. Of all this, the present controversy furnishes abundant illustration. Twenty-one members of the Kansas Senate and three members of its House of Representatives brought an original mandamus proceeding in the Supreme Court of that State to compel the Secretary of its Senate to erase an endorsement on Kansas 'Senate Concurrent Resolution No. 3' of January 1937, to the effect that it had been passed by the Senate, and instead to endorse thereon the words 'not passed.' They also sought to restrain the officers of both Senate and House from authenticating and delivering it to the Governor of the State for transmission to the Secretary of State of the United States. These Kansas legislators resorted to their Supreme Court claiming that there was no longer an amendment open for ratification by Kansas and that, in any event, it had not been ratified by the 'legislature' of [307 U.S. 433, 462] Kansas, the constitutional organ for such ratification. See Article V of the Constitution of the United States. The Kansas Supreme Court held that the Kansas legislators had a right to its judgment on these claims, but on the merits decided against them and denied a writ of mandamus. Urging that such denial was in derogation of their rights under the Federal Constitution, the legislators, having been granted certiorari to review the Kansas judgment, Coleman v. Miller, 303 U.S. 632 , 58 S.Ct. 758, ask this Court to reverse it. Our power to do so is explicitly challenged by the United States as amicus curiae, but would in any event have to be faced. See Mansfield C. & L.M. Ry. v. Swan, 111 U.S. 379, 382 , 4 S.Ct. 510, 511. To whom and for what causes the courts of Kansas are open are matters for Kansas to determine. 3 But Kansas can not define the contours of the authority of the federal courts, and more particularly of this Court. It is our ultimate responsibility to determine who may invoke our judgment and under what circumstances. Are these members of the Kansas legislature, therefore, entitled to ask us to adjudicate the grievances of which they complain? It is not our function, and it is beyond our power, to write legal essays or to give legal opinions, however

solemnly requested and however great the national emergency. See the correspondence between Secretary of State Jefferson and Chief Justice Jay, 3 J ohnson, Correspondence and Public Papers of John Jay, 486-89. Unlike the role allowed to judges in a few state courts and to the Supreme Court of Canada, our

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exclusive business is litigation. 4 The requisites oflitigation are not satisfied [307 U.S. 433, 463] when questions of constitutionality though conveyed through the outward forms of a conventional court proceeding do not bear special relation to a particular litigant. The scope and consequences of our doctrine of judicial review over executive and legislative action [307 U.S. 433, 464] should make us observe fastidiously the bounds of the litigious process within which we are confined. 5 No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to all. Stearns v. Wood, 236 U.S. 75 , 35 S.Ct. 229; Fairchild v. Hughes, 258 U.S. 126 , 42 S.Ct. 274. In the familiar language of jurisdiction, these Kansas legislators must have standing in this Court. What is their distinctive claim to be here, not possessed by every Kansan? What is it that they complain of, which could not be complained of here by all their fellow citizens? The answer requires analysis of the grievances which they urge. They say that it was beyond the power of the Kansas legislature, no matter who voted or how, to ratify the Child Labor Amendment because for Kansas there was no Child Labor Amendment to ratify . .Assuming that an amendment proposed by the Congress dies of inanition after what is to be deemed a 'reasonable' time, they claim that, having been submitted in 1924, the proposed Child Labor Amendment was no longer alive in 1937. Or, if alive, it was no longer so for Kansas because, by a prior resolution of rejection in 1925, Kansas had exhausted her power. In no respect, however, do these objections relate to any secular interest that pertains to these Kansas legislators apart from interests that belong to the entire commonalty of Kansas. The fact that these legislators are part of the ratifying mechanism while the ordinary citizen of Kansas is not, is wholly irrelevant to this issue. On this aspect of the case the problem would be exactly the same if all but one legislator had voted for ratification. [307 U.S. 433, 465] Indeed the claim that the Amendment was dead or that it was not longer open to Kansas to ratify, is not only not an interest which belongs uniquely to these Kansas legislators; it is not even an interest special to Kansas. For it is the common concern of every citizen of the United States whether the Amendment is still alive, or whether Kansas could be included among the necessary 'three-fourths of the several States.' These legislators have no more standing on these claims of unconstitutionality to attack 'Senate Concurrent Resolution No. 3' than they would have standing here to attack some Kansas statute claimed by them to offend the Commerce Clause, U.S.C.A.Const. art. 1, 8, cl. 3. By as much right could a member of the Congress who had voted against the passage of a bill because moved by constitutional scruples urge before this Court our duty to consider his arguments of unconstitutionality. Clearly a Kansan legislator would have no standing had be brought suit in a federal court. Can the Kansas Supreme Court transmute the general interest in these constitutional claims into the individualized legal interest indispensable here? No doubt the bounds of such legal interest have a penumbra which gives some freedom in judging fulfillment of our jurisdictional requirements. The doctrines affecting standing to sue in the federal courts will not be treated as mechanical yardsticks in assessing state court ascertainments of legal interest brought here for review. For the creation of vast domain of legal interests is in the keeping of the states, and from time to time state courts and legislators give legal protection to new individual interests. Thus, while the ordinary state taxpayer's suit is not recognized in the federal courts, it affords adequate standing for review of state decisions when so recognized by state courts. Coyle v. Smith, 221 U.S. 559 , 31 S.Ct. 688; Heim v. McCall, 239 U.S. 175 , 36 S.Ct. 78, Ann.Cas.1917B, 287. [307 U.S. 433, 466] But it by no means follows that a state court ruling on the adequacy oflegal interest is

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binding here. Thus, in Tyler v. Judges of the Court of Registration, 179 U.S. 405 , 21 S.Ct. 206, the notion was rejected that merely because the Supreme Judicial Court of Massachusetts found an interest of sufficient legal significance for assailing a statute, this Court must consider such claim. Again, this Court has consistently held that the interest of a state official in vindicating the Constitution of the United States gives him no legal standing here to attack the constitutionality of a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U.S. 138 , 24 S.Ct. 51; Braxton County Court v. West Virginia, 208 U.S. 192 , 28 S.Ct. 275; Marshall v. Dye, 231 U.S. 250 , 34 S.Ct. 92; Stewart v. Kansas City, 239 U.S. 14 , 36 S.Ct. 15 Nor can recognition by a state court of such an undifferentiated, general interest confer jurisdiction on us. Columbus & Greenville Ry. v. Miller, 283 U.S. 96 , 51 S.Ct. 392, reversing Miller v. Columbus & Greenville Ry., 154$ Miss. 317, 122 So. 366. Contrariwise, of course, an official has a legally recognized duty to enforce a statute which he is charged with enforcing. And so, an official who is obstructed in the performance of his duty under a state statute because his state court found a violation of the United States Constitution may, since the Act of December 23, 1914, 38 Stat. 790, ask this Court to remove the fetters against enforcement of his duty imposed by the state court because of an asserted misconception of the Constitution. Such a situation is represented by Blodgett v. Silberman, 277 U.S. 1 , 48 S.Ct. 410, and satisfied the requirement oflegal interest in Boynton v. Hutchinson, 291 U.S. 656 , 54 S.Ct. 457, certiorari dismissed on another ground in 292 U.S. 601 , 54 S.Ct. 639.6 [307 U.S. 433, 467] We can only adjudicate an issue as to which there is a claimant before us who has a special, individualized stake in it. One who is merely the self-constituted spokesman of a constitutional point of view can not ask us to pass on it. The Kansas legislators could not bring suit explicitly on behalf of the people of the United States to determine whether Kansas could still vote for the Child Labor Amendment. They can not gain standing here by having brought such a suit in their own names. Therefore, none of the petitioners can here raise questions concerning the power of the Kansas legislature to ratify the Amendment.

This disposes of the standing of the three members of the lower house who seek to invoke the jurisdiction of this Court. They have no standing here. Equally with [307 U.S. 433, 468] out litigious standing is the member of the Kansas Senate who voted for 'Senate Concurrent Resolution No. 3'. He cannot claim that his vote was denied any parliamentary efficacy to which it was entitled. There remains for consideration only the claim of the twenty nay voting senators that the Lieutenant-Governor or Kansas, the presiding officer of its Senate, had, under the Kansas Constitution, no power to break the tie in the senatorial vote on the Amendment, thereby depriving their votes of the effect of creating such a tie. Whether this is the tribunal before which such a question can be raised by these senators must be determined even before considering whether the issue which they pose is justiciable. For the latter involves questions affecting the distribution of constitutional power which should be postponed to preliminary questions oflegal standing to sue. [307 U.S. 433, 469] The right of the Kansas senators to be here is rested on recognition by Leser v. Garnett, 258 U.S. 130 , 42 S.Ct. 217, of a voter's right to protect his franchise. The historic source of this doctrine and the reasons for it were explained in Nixon v. Herndon, 273 U.S. 536, 540 , 47 S.Ct. 446. That was an action for $5,000 damages against the Judges of Elections for refusing to permit the plaintiff to vote at a primary election in Texas. In disposing of the objection that the plaintiff had no cause of action because the subject matter of the suit was political, Mr. Justice Holmes thus spoke for the Court: 'Of course the petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years, since Ashby v. White, 2 Ld. Raym. 938, 3 Ld.Raym. 320, and has been recognized by this Court.' 'Private damage' is the clue to the famous ruling in Ashby v. White, supra, and determines its scope as well as that of cases in this Court of which it is the justification. The judgment of Lord Holt is permeated with the conception that a voter's franchise is a personal right,

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assessable in money damages, of which the exact amount 'is peculiarly appropriate for the determination of a jury', see Wiley v. Sinkler, 179 U.S. 58, 65 , 21 S. Ct. 17, 20, and for which there is no remedy outside the law courts. 'Although this matter relates to the parliament,' said Lord Holt, 'yet it is an injury precedaneous to the parliament, as my Lord Hale said in the case of Bernardiston v. Soame, 2 Lev. 114, 116. The parliament cannot judge of this injury, nor give damage to the plaintiff for it: they cannot make him a recompense.' 2 Ld.Raym. 938, 958. The reasoning of Ashby v. White and the practice which has followed it leave intra-parliamentary controversies to parliaments and outside the scrutiny oflaw courts. The procedures for voting in legislative assem- (307 U.S. 433, 470] blies-who are members, how and when they should vote, what is the requisite number of votes for different phases oflegislative activity, what votes were cast and how they were counted-surely are matters that not merely concern political action but are of the very essence of political action, if 'political' has any connotation at all. Field v. Clark, 143 U.S. 649, 670 , 12 S.Ct. 495, et seq.; Leserv. Garnett, 258 U.S. 130, 137 , 42 S.Ct. 217. In no sense are they matters of 'private damage'. They pertain to legislators not as individuals but as political representatives executing the legislative process. To open the law courts to such controversies is to have courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies. If the doctrine of Ashby v. White vindicating the private rights of a voting citizen has not been doubted for over two hundred years, it is equally significant that for over two hundred years Ashby v. White has not been sought to be put to purposes like the present. In seeking redress here these Kansas senators have wholly misconceived the functions of this Court. The writ of certiorari to the Kansas Supreme Court should therefore be dismissed. Mr. Justice BUTLER, dissenting. The Child Labor Amendment was proposed in 1924; more than 13 years elapsed before the Kansas legislature voted, as the decision just announced holds, to ratify it. Petitioners insist that more than a reasonable time had elapsed and that, therefore, the action of the state legislature is without force. But this Court now holds that the question is not justiciable, relegates it to the 'consideration 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' and declares that the decision by Congress would not be subject to review by the courts. [307 U.S. 433, 471] In Dillon v. Gloss, 256 U.S. 368 , 41 S.Ct. 510, 511, one imprisoned for transportation of intoxicating liquor in violation of 3 of the National Prohibition Act, instituted habeas corpus proceedings to obtain his release on the ground that the Eighteenth Amendment was invalid because the resolution proposing it declared that it should not be operative unless ratified within seven years. The Amendment was ratified in less than a year and a half. We definitely held that Article V impliedly requires amendments submitted to be ratified within a reasonable time after proposal; that Congress may fix a reasonable time for ratification, and that the period of seven years fixed by the Congress was reasonable. We said: 'It will be seen that this article says nothing about the time within which ratification may be had-neither

that it shall be unlimited nor that it shall be fixed by Congress. What then is the reasonable inference or implication? Is it that ratification may be had at any time, as within a few years, a century or even a longer period; or that it must be had within some reasonable period which Congress is left free to define? ... '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

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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 [307 U.S. 433, 472] 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. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson (in his Constitutional Conventions, 4th ed. 585) 'that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.' That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three- fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal. 'Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt.... 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. It is not questioned that seven years, the period fixed in this instance, was reason- [307 U.S. 433, 473] able, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified.' Upon the reasoning of our opinion in that case, I would hold that more than a reasonable time had elapsed* and [307 U.S. 433, 474] that the judgment of the Kansas supreme court should be reversed. The point, that the question-whether more than a reasonable time had elapsed-is not justiciable but one for Congress after attempted ratification by the requisite number of States, was not raised by the parties or by the United States appearing as amicus curiae; it was not suggested by us when ordering reargument. As the Court, in the Dillon case, did directly decide upon the reasonableness of the seven years fixed by the Congress, it ought not now, without hearing argument upon the point, hold itself to lack power to decide whether more than 13 years between proposal by Congress and attempted ratification by Kansas is reasonable. Mr. Justice McREYNOLDS joins in this opinion.

Footnotes [ Footnote 1 ] The text of the proposed amendment is as follows (43 Stat. 670): 'Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age. 'Sec. 2. The power of the several States is unimpaired by this article except that the operation of State laws

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shall be suspended to the extent necessary to give effect to legislation enacted by the Congress'. [ Footnote 2 ] The state court said on this point: 'At the threshold we are confronted with the question raised by the defendants as to the right of the plaintiffs to maintain this action. It appears that on March 30, 1937, the State Senate adopted a resolution directing the Attorney General to appear for the State of Kansas in this action. It further appears that on April 3, 1937, on application of the Attorney General, an order was entered making the State of Kansas a party defendant. The state being a party to the proceedings, we think the right of the parties to maintain the action is beyond question. G.S.1935, 75-702; State ex rel. v. Public Service Comm., 135 Kan. 491, 11 P.2d999.' [ Footnote 3 ] See Caffreyv. Oklahoma Territory, 177 U.S. 346 , 20 S.Ct. 664; Smith v. Indiana, 191 U.S. 138 , 24 S.Ct. 51; Braxton County Court v. West Virginia, 208 U.S. 192 , 28 S.Ct. 275; Marshall v. Dye, 231 U.S. 250 , 34 S.Ct. 92; Stewart v. Kansas City, 239 U.S. 14 , 36 S.Ct. 15; Columbus & Greenville Railway Co. v. Miller, 283 U.S. 96 , 51 S.Ct. 392. [ Footnote 4 ] Mr. Justice Brandeis. [ Footnote 5 ] Id., 258 U.S. at pages 129, 130, 42 S.Ct. at page 275. See, also, Frothingham v. Mellon, 262 U.S. 447, 480 , 486 S., 487, 43 S.Ct. 597, 598, 600, 6oi. [ Footnote 6 ] Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 , 39 S.Ct. 526; Trenton v. New Jersey, 262 U.S. 182 , 43 S.Ct. 534, 29 A.L.R. 1471; Risty v. Chicago, R.I. & Pac. Rwy. Co., 270 U.S. 378 , 46 S.Ct. 236; Williams v. Mayor, 289 U.S. 36 , 53 S.Ct. 431. [ Footnote 7 ] Act of October 22, 1913, 38 Stat. 219; 28 U.S.C. 47, 47a, 345, 28 U.S.C.A. 47, 47a, 345. [ Footnote 8 ] 15 U.S.C. 45, 15 U.S.C.A. 45; 28 U.S.C. 348, 28 U.S.C.A. 348. [ Footnote 9 ] 29 U.S.C. 16o(e), 29 U.S.C.A. 16o(e). See, also, as to orders of Federal Communications Commission, 47 U.S.C. 402(e), 47 U.S.C.A. 402(e). [ Footnote 10 ] 1 Stat. 73, 85, 86. [ Footnote 11 ] 38 Stat. 790; see, also, Act of September 6, 1916, 39 Stat. 726. [ Footnote 12 ] See cases cited in Note 3. [ Footnote 13 ] Jameson on Constitutional Conventions, Secs. 576-581; Willoughby on the Constitution, Sec. 329a. [ Footnote 14 ] Jameson, op. cit., Secs. 582-584; Willoughby, op. cit., Sec. 329a; Ames, 'Proposed Amendments to the Constitution', House Doc. No. 353, Pt. 2, 54th Cong., 2d Sess., pp. 299, 300. [ Footnote 15 ] 13 Stat. 774, 775; Jameson, op. cit., Sec. 576; Ames, op. cit., p. 300. [ Footnote 16 ] 15 Stat. 710. [ Footnote 17 ] Act of March 2, 1867, 14 Stat., p. 428. See White v. Hart, 13 Wall. 646, 652.

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[ Footnote 18 ] 15 Stat. 710. [ Footnote 19 ] 15 Stat. 707. [ Footnote 20 ] Cong. Globe, 4oth Cong., 2d Sess., p. 3857. [ Footnote 21 ] Cong. Globe, 4oth Cong., 2d Sess., p. 4070. [ Footnote 22 ] 15 Stat. 706, 707. [ Footnote 23 ] 15 Stat. 709, 710. [ Footnote 24 ] 15 Stat. 710, 711; Ames, op. cit., App. No. 1140, p. 377. [ Footnote 25 ] The legislature of New York which had ratified the Fifteenth Amendment in 1869 attempted, in January, 1870, to withdraw its ratification, and while this fact was stated in the proclamation by Secretary Fish of the ratification of the amendment, and New York was not needed to make up the required three-fourths, that State was included in the list of ratifying States. 16 Stat. 1131; Ames. op. cit., App. No. 1284, p. 388. [ Footnote 26 ] Compare Article VII. [ Footnote 27 ] 5 U.S.C. 160, 5 U.S.C.A. 160. From Act of April 20, 1818, Sec. 2, 3 Stat. 439; R.S. 205. [ Footnote 28 ] Sen. Rep. 726, 75th Cong., 1st sess.; Sen. Rep. 788, 75th Cong., 1st sess.: Letter of the President on January 8, 1937, to the Governors of nineteen non-ratifying States whose legislatures were to meet in that year, urging them to press for ratification. New York Times, January 9, 1937, p. 5. [ Footnote 29 ] 40 Stat. 1050. A similar provision was inserted in the Twenty- first Amendment. United States v. Chambers, 291 U . S. 217, 222 , 54 S.Ct. 434, 435, 89 A.L.R. 1510. [ Footnote 30 ] See Willoughby, op. cit., pp. 1326, et seq.; Oliver P. Field, 'The Doctrine of Political Questions in the Federal Courts', 8 Minnesota Law Review, 485; Melville Fuller Weston, 'Political Questions', 38 Harvard Law Review, 296. [ Footnote 31 ] See, also, United States v. Palmer, 3 Wheat. 610, 634; Fosterv. Neilson, 2 Pet. 253, 309; Doe v. Braden, 16 How. 635, 657; Terlinden v. Ames, 184 U.S. 270, 288 , 22 S.Ct. 484, 491. [ Footnote 1 ] Cf. Helvering v. Davis, 301 U.S. 619, 639 , 640 S., 57 S.Ct. 904, 908, 109 A.L.R. 1319. [ Footnote 2 ] Leser v. Garnett, 258 U.S. 130, 137 , 42 S.Ct. 217. [ Footnote 3 ] Jones v. United States, 137 U.S. 202, 212 , 11 S.Ct. 80, 83; Foster & Elam v. Neilson, 2 Pet. 253, 309, 314; Luther v. Borden et al., 7 How. 1, 42; In re Cooper, 143 U.S. 472, 503 , 12 S.Ct. 453, 460; Pacific Telephone Co. v. Oregon, 223 U.S. 118 , 32 S.Ct. 224; State of Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569 , 36 S.Ct. 708, 710; 'And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive ('political department') be right or wrong. It is enough to know that in the exercise of his constitutional functions, he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and the government of the Union .... this court have laid down the rule that the action of the political branches of the government, in a matter

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that belongs to them, is conclusive.' Williams v. Suffolk Ins. Co., 13 Pet. 415, 420. [ Footnote 4 ] Field v. Clark, 143 U.S. 649, 672 , 12 S.Ct. 495, 497. [ Footnote 5 ] 256 U.S. 368, 375 , 41 S.Ct. 510, 512. [ Footnote

1]

For an early instance of the abstention of the King's Justices from matters political, see the

Duke of York's Claim to the Crown, House of Lords, 1460, 5 Rot.Par!. 375, reprinted in Wambaugh, Cases on Constitutional Law, 1. [ Footnote 2 ] See e.g. the opinion of Mr. Justice Iredell in Chisholm v. Georgia, 2 Dall. 419, 429; concurring opinion of Mr. Justice Johnson in Fletcher v. Peck, 6 Cranch 87, 143; and the cases collected in the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288,

341 , 56 S.Ct. 466, 480. [ Footnote 3 ] This is subject to some narrow exceptions not here relevant. See, e. g., McKnett v. St. Louis & San Francisco Ry., 292 U.S. 230 , 54 S.Ct. 690.

[ Footnote 4 ] As to advisory opinions in use in a few of the state courts, see J.B. Thayer, Advisory Opinions, reprinted in Legal Essays by J.B. Thayer, at 42 et seq.; article on 'Advisory Opinions,' 1 Enc.Soc.Sci. 4 75. As to advisory opinions in Canada, see Attorney-General for Ontario v. AttorneyGeneral for Canada (1912) A.C. 571. Speaking of the Canadian system, Lord Chancellor Haldane, in Attorney General for British Columbia v. Attorney General for Canada (1914) A.C. 153, 162, said: 'It is at times attended with inconveniences, and it is not surprising that the Supreme Court of the United States should have steadily refused to adopt a similar procedure, and should have confined itself to adjudication on the legal rights oflitigants in actual controversies.' For further animadversions on advisory pronouncements by judges, see Lord Chancellor Sankey in In re The Regulation and Control of Aeronautics in Canada (1932) A.C. 54, 66: 'We sympathize with the view expressed at length by Newcombe, J., which was concurred in by the Chief Justice (of Canada) as to the difficulty which the Court must experience in endeavoring to answer questions put to it in this way.' Australia followed our Constitutional practice in restricting her courts to litigious business. The experience of English history which lay behind it was thus put in the Australian Constitutional Convention by Mr. (later Mr. Justice) Higgins: 'I feel strongly that it is most inexpedient to break in on the established practice of the English law, and secure decisions on facts which have not arisen yet. Of course, it is a matter that lawyers have experience of every day, that a judge does not give the same attention, he can not give that same attention, to a suppositious case as when he feels the pressure of the consequences to a litigant before him .... But here is an attempt to allow this High Court, before cases have arisen, to make a pronouncement upon the law at will be binding. I think the imagination of judges, like that of other persons, is limited, and they are not able to put before their minds all the complex circumstances which may arise and which they ought to have in their minds when giving a decision. If there is one thing more than another which is recognized in British jurisprudence it is that a judge never gives a decision until the facts necessary for that decision have arisen.' Rep.Nat. Austral.Conv.Deb. (1897) 966-67. [ Footnote 5 ] See the series of cases beginning with Rayburn's Case, 2 Dall. 409, through United States v. West Virginia, 295 U.S. 463 , 55 S.Ct. 789. [ Footnote 6 ] A quick summary of the jurisdiction of this Court over state court decisions leaves no room

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for doubt that the fact that the present case is here on certiorari is wholly irrelevant to our assumption of jurisdiction. Section 25 of the First Judiciary Act gave reviewing power to this Court only over state court decisions denying a claim of federal right. This restriction was, of course, born of fear of disobedience by the state judiciaries of national authority. The Act of September 6, 1916, 39 Stat. 726, withdrew from this obligatory jurisdiction cases where the state decision was against a 'title, right, privilege, or immunity' claimed to exist under the Constitution, laws, treaties or authorities of the United States. This change, which was inspired mainly by a desire to eliminate from review as of right of cases arising under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., left such review only in cases where the validity of a treaty, statute or authority of the United States was drawn into question and the decision was against the validity, and in cases where the validity of a statute of a state or a state authority was drawn into question on the grounds of conflict with federal law and the decision was in favor of its validity. The Act of February 13, 1925, 43 Stat. 936, 937, extended this process of restricting our obligatory jurisdiction by transferring to review by certiorari cases in which the state court had held invalid an 'authority' claimed to be exercised under the laws of the United States or in which it had upheld, against claims of invalidity on federal grounds, an 'authority' exercised under the laws of the states. Neither the terms of these two restrictions nor the controlling comments in committee reports or by members of this, Court who had a special share in promoting the Acts of 1916 and 1925, give any support for believing that by contracting the range of obligatory jurisdiction over state adjudications Congress enlarged the jurisdiction of the Court by removing the established requirement of legal interest as a threshold condition to being here. Nor does the Act of December 23, 1914, 38 Stat. 790, touch the present problem. By that Act, Congress for the first time gave this Court power to review state court decisions sustaining a federal right. For this purpose it made certiorari available. The Committee reports and the debates on this Act prove that its purpose was merely to remove the unilateral quality of Supreme Court review of state court decisions on constitutional questions as to which this Court has the ultimate say. The Act did not create a new legal interest as a basis of review here; it built on the settled doctrine that an official has a legally recognizable duty to carry out a statute which he is supposed to enforce. Thus, prior to the Act of 1914, the Kentucky case, Chandler v. Wise, 307 U.S. 474 , 59 S.Ct. 992, 83 L.Ed. --, could not have come here at all, and prior to 1916, the Kansas case would have come here, if at all, by writ of error. By allowing cases from state courts which previously could not have come here at all to come here on certiorari the Act of 1914 merely lifted the previous bar-that a federal claim had been sustained-but left every other requisite of jurisdiction unchanged. Similarly, no change in these requisites was affected by the Acts of 1916 and 1925 in confining certain categories of litigation from the state courts to our discretionary instead of obligatory reviewing power. [ Footnote * ] Chronology of Child Labor Amendment. (A State is said to have 'rejected' when both Houses of its legislature passed resolutions of rejection, and to have 'refused to ratify' when both Houses defeated resolution for ratification.) June 2, 1924, Joint Resolution deposited in State Department. In that year, Arkansas ratified; North Carolina rejected. Ratification, 1; rejection, i. 1925, Arizona, California and Wisconsin ratified; Florida, Georgia, Indiana, Kansas, Maine,

Massachusetts, Minnesota, Missouri, New Hampshire, Pennsylvania, South Carolina, Tennessee, Texas,

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Utah, and Vermont rejected; Connecticut, Delaware and South Dakota refused to ratify. Ratifications, 4; rejections, i6; refusals to ratify, 3. i926, Kentucky and Virginia rejected. Ratifications, 4; rejections, i8; refusals to ratify, 3. i927, Montana, ratified; Maryland rejected. Ratifications, 5; rejections, i9; refusals to ratify, 3. i931, Colorado ratified. Ratifications, 6; rejections, i9; refusals to ratify, 3. 1933, Illinois, Iowa, Michigan, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Washington and West Virginia ratified as did also Maine, Minnesota, New Hampshire, and Pennsylvania, which had rejected in i925. Ratifications, 20; rejections, (eliminating States subsequently ratifying) i5; refusals to

ratify, 3. i935, Idaho and Wyoming ratified, as did Utah and Indiana, which had rejected in i925. As in i925,

Connecticut refused to ratify. Ratifications, 24; rejections, i3; refusals to ratify, 3. i936, Kentucky, which had rejected in i926, ratified. Ratifications, 25; rejections, i2; refusals to ratify, 3. 1937, Nevada and New Mexico ratified, as did Kansas, which had rejected in i925. Massachusetts, which had rejected in i925, refused to ratify. Ratifications, 28; rejections, 11; refusals to ratify, 3.

Six States are not included in this list: Alabama, Louisiana, Mississippi, Nebraska, New York and Rhode Island. It appears that there has never been a vote in Alabama or Rhode Island. Louisiana house of representatives has three times (1924, 1934 and i936) defeated resolutions for ratification. In Mississippi, the Senate adopted resolution for ratification in i934, but in i936 another Senate resolution for ratification was adversely reported. In Nebraska, the House defeated ratification resolutions in i927 and i935, but the Senate passed such a resolution in 1929. In New York, ratification was defeated in the House in 1935 and 1937, and in the latter year, the Senate passed such a resolution.

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General Discussion

Summation of Supreme Court Rulings Concerning the Amendment Process A summation of the Supreme Court rulings concerning the amendment process discussed in this section is itemized below. Following the summary statement shown in parentheses ( ) is the citation(s) from which the summation is derived. Reasonable conclusions drawn from these rulings concerning a convention are asserted in italics underneath the summation: •

The submission of a proposed constitutional amendment does not require the action of the president. (Hollingsworth) o While the court excluded the president from the process of amendment proposal, it did not exclude the vice president from participation as President of the Senate in the calling of an Article V Convention.



States cannot impede valid constitutional exercises of power by the Federal government. (McCulloch) o Such impediment includes the submission of so-called rescissions (also prohibited by the Tenth Amendment) intended to prevent Congress calling a convention when the states have otherwise applied as prescribed by Article V.



The people, not the states, are source of sovereignty of this nation meaning any convention called under the authority of Article V must involve the consent of the people. (McCulloch) o State legislatures are not authorized to control the agenda, selection of delegates, language of a proposed amendment or other such matters unless such control is given by consent of the people. Such consent is not authorized under Article V and therefore cannot be granted by the people. Therefore state legislatures cannot control a convention as to agenda, proposal and so forth. Instead the people acting through direct election of convention delegates express their consent as to the operation of a convention.



Congress is mandated to call an Article V Convention if the states apply in sufficient number to satisfy the two-thirds requirement in Article V. (Dodge, Hawke, Dillon, and Sprague) o No other requirement except a numeric count of applying states for a convention is described by the Constitution and therefore Congress may attach no other conditions to the calling of a convention.



It is unlawful to discriminate between citizens of the same legal class unless a reasonable basis exists for such discrimination. Further

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membership in a group does not a pose a barrier to equal protection under the law. (Gulf) o As all functions of amendment proposal are identical for both Congress and convention there is no basis of discrimination between either. The convention therefore must be treated equally under the law meaning all applicable law equally applies to Congress and the convention. As Congress is an independent proposal body, this also means the convention is equally independent and equally governed by the Constitution. •

The proposal of amendments by the proposing body is based on twothirds of the membership present assuming a quorum of the membership (one-half and one more) is present. (Missouri) o As both Congress and convention are equal under the law, the requirement of two-thirds present assuming a quorum equally applies to both. As a convention is required to be comprised of state delegations each voting as a state, this means 26 state delegations must be present in order to pass a proposed amendment.



States operate under the authority of the federal constitution rather than under the authority of their state constitutions when involved in the Article V amendment process. (Hawke) o In the matter of a convention states are equally required to operate under the federal constitution as this is part of the amendment process.



All amendments must have the sanction of the people of the United States, the original fountain of power, acting through deliberative assemblages representative of the people who will voice the will of the people. (McCulloch, Hawke, Rhode Island, 18 U.S.C 601) o Under federal criminal law as well as under the rulings of the Supreme Court, convention delegates shall be elected by the will of the people and not selected by any other means such as appointment by the state legislature.



It is not the function of courts or legislative bodies, national or state, to alter the method of ratification which the Constitution has fixed. (Hawke) o The Constitution has established an amendment procedure which neither the courts, federal or state, the legislatures, national or state may alter. Thus special rules for a convention that do not equally apply to Congress or additions made to the text of Article V not appearing in that text that then are applied to the convention are unconstitutional.

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Congress is bound to the text of the Constitution and can take no action contrary to the textual language of Article V. (Hawke) o There being no language authorizing Congress to legislatively regulate a convention, such act is prohibited and unconstitutional.



No declaration of necessity is required of the proposing body in proposing an amendment. (Rhode Island) o The Court did not exclude the convention from this determination. Therefore it equally applies to a proposed amendment by a convention.



State referendums of state constitutions and statutes may not be applied in the ratification or rejection of a proposed amendment to the Constitution. (Hawke, Rhode Island) o The Court did not exclude the convention from this determination. Therefore it equally applies to a proposed amendment by a convention.



An amendment having been proposed and ratified lawfully is equal to all other clauses of the Constitution. (Rhode Island) o The Court did not exclude the convention from this determination. Therefore it equally applies to a proposed amendment by a convention.



A time limit on ratification by the states may be included as part of the amendment by the proposing body making the proposal. (Dillon) o The Court did not exclude the convention from this determination. Therefore it equally applies to a proposed amendment by a convention.



The subject matter (or character) of the amendment proposal shall have no affect or effect on the amendment process prescribed in Article V. (Leser, Sprague) o The Court did not exclude the convention from this determination. Therefore it equally applies to a proposed amendment by a convention.



Once an action of the state in ratification is certified by the secretary of the state it is conclusive upon the courts and the courts will not intervene in the matter. (Leser, Hawke) o The Court did not exclude the convention from this determination. Therefore it equally applies to a proposed amendment by a convention.

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Congress is prohibited from employing the “necessary and proper” clause to legislatively “regulate” a convention. (Hollingsworth, Sprague, and Chambers) o Without participation of the president as described in Hollingsworth together with denying Congress any access to the “necessary and proper” clause the ability of Congress to legislatively control a convention is strictly prohibited.



Article V permits no excuse for interpolation, rules of construction or addition. (Sprague) o Assertions of special conditions for the calling of a convention such as rescissions, identical subject matter for applications, contemporaneousness of applications and so forth not being part of the actual text of Article V are unconstitutional and therefore prohibited.



The proposing body cannot adopt a proposed amendment on its own authority without consent of the people. (Chambers).. o The convention, like Congress, does not have the authority to adopt a proposed amendment without consent of the people as prescribed by the terms of Article V. Further, as the Constitution does not prescribe authority for a convention to create a new constitution such an act is unconstitutional. ◄▬OR▬►



Congress has exclusive, complete and absolute control of the amendment process but is still governed by the Constitution. (Coleman) o By this decision, neither the people, the states nor a convention has any part of the amendment process despite express textual statement in the Constitution to the contrary.



Congress, acting under the political question doctrine, may remove state legislatures by military force and replace its members as part of the ratification process. (Coleman) o The Court made no exclusion or limitation on this power of Congress that it may not be applied at the discretion of Congress. However the Court did not immunize members of Congress from the effect of any violation of appropriate federal criminal law if Congress so acts.



Congress may accept and refuse state ratification votes under the political question doctrine on the basis that a state may (or may not) rescind a prior ratification vote. (Coleman) o As a convention call is peremptory on Congress and the Court has repeatedly ruled that Congress must call a convention and

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expressed no terms, conditions or circumstances under which Congress can refuse to call, the Court has therefore determined there being no excuse possible under the definition of legal term peremptory, rescissions or any other term or condition which permits denial of a convention call is not permitted and is unconstitutional. •

Any judicial expression regarding the amendment process by the Court regarding the exclusive congressional power over the amendment process is a mere admonition to Congress in the nature of an advisory opinion, given wholly without constitutional authority. (Coleman) o As the Court determined its decision in Coleman was an advisory opinion it is logical to assert any powers or authority expressed by the Court in Coleman is advisory and therefore “given wholly without constitutional authority.” Therefore if Congress attempts to implement Coleman by not obeying the Constitution and calling a convention when mandated to do so or taking any other actions recommended by the Court Congress lacks any constitutional or immunity imposed by federal criminal law.

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