The Constitution of the United States of America: Analysis and Interpretation Part 135

Ratification

Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Two amendments proposed in 1789, one submitted in 1810 and one in 1861, were never ratified. In Dillon _v._ Gloss[12] the Court intimated that proposals which were clearly out of date were no longer open for ratification. However, in Coleman _v._ Miller,[13] it refused to pa.s.s upon the question whether the proposed child labor amendment, submitted to the States in 1924, was open to ratification thirteen years later. It held this to be a political question which would have to be resolved by Congress in the event three fourths of the States ever gave their a.s.sent to the proposal. With respect to the Eighteenth, Twentieth, Twenty-first and Twenty-second Amendments, Congress included in the text of these proposed amendments a section stating that the article should be inoperative unless ratified within seven years. In Dillon _v._ Gloss the Court sustained this limitation on the ground that it gave effect to the implication of article V that ratification "must be within some reasonable time after the proposal."[14] Congress has complete freedom of choice between the two methods of ratification recognized by article V--by the legislatures of the States, or conventions in the States. In United States _v._ Sprague[15] counsel advanced the contention that the Tenth Amendment recognized a distinction between powers reserved to the States and powers reserved to the people, and that State legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several States. The Eighteenth Amendment being of the latter character, the ratification by State legislatures, so the argument ran, was invalid. The Supreme Court rejected the argument. It found the language of article V too clear to admit of reading any exceptions into it by implication.

The term "legislatures" as used in article V means deliberative, representative bodies of the type which in 1789 exercised the legislative power in the several States. It does not comprehend the popular referendum which has subsequently become a part of the legislative process in many of the States, nor may a State validly condition ratification of a proposed const.i.tutional amendment on its approval by such a referendum.[16] In the words of the Court: "* * * the function of a State legislature in ratifying a proposed amendment to the Federal Const.i.tution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Const.i.tution; and it transcends any limitations sought to be imposed by the people of a State."[17]

Authentication and Proclamation

Formerly official notice from a State legislature, duly authenticated, that it had ratified a proposed amendment went to the Secretary of State, upon whom it was binding, "being certified by his proclamation, [was] conclusive upon the courts" as against any objection which might be subsequently raised as to the regularity of the legislative procedure by which ratification was brought about.[18] This function of the Secretary, purely ministerial in character, was, however, derived from an act of Congress, and was recently transferred to a functionary called Administrator of General Services.[19] In Dillon _v._ Gloss,[20] the Supreme Court held that the Eighteenth Amendment became operative on the date of ratification by the thirty-sixth State, rather than on the later date of the proclamation issued by the Secretary of State, and doubtless the same rule holds as to a similar proclamation by the Administrator.

JUDICIAL REVIEW UNDER ARTICLE V

Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was conclusive upon the courts,[21] it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman _v._ Miller.[22] This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endors.e.m.e.nt on a resolution ratifying the proposed child labor amendment to the Const.i.tution to the effect that it had been adopted by the Kansas Senate. The attempted ratification was a.s.sailed on three grounds: (1) that the amendment had been previously rejected by the State legislature; (2) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favor of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four members of the Court. The majority ruled that the plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process "is 'political' in its entirety, from submission until an amendment becomes part of the Const.i.tution, and is not subject to judicial guidance, control or interference at any point."[23] Whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favor of ratification presented a justiciable controversy was left undecided, the Court being equally divided on the point.[24] In an opinion reported as "the opinion of the Court," but in which it appears that only three Justices concurred, Chief Justice Hughes declared that the writ of mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress.[25] On the same day, the Court dismissed a writ of certiorari to review a decision of the Kentucky Court of Appeals declaring the action of the Kentucky General a.s.sembly purporting to ratify the child labor amendment illegal and void. Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State court, the Supreme Court found that there was no longer a controversy susceptible of judicial determination.[26]

Notes

[1] II Madison, Journal of Debates in the Const.i.tutional Convention, 385-386 (Hunt's ed., 1908).

[2] Cong. Globe, 1263 (1861).

[3] Ames, Herman V., Proposed Amendments to the Const.i.tution, 363 (1896).

[4] Rhode Island _v._ Palmer, 253 U.S. 350, 386 (1920).

[5] Leser _v._ Garnett, 258 U.S. 130 (1922).

[6] Annals of Congress 433-436 (1789).

[7] Ibid. 717.

[8] Ibid. 430.

[9] Rhode Island _v._ Palmer, 253 U.S. 350, 386 (1920).

[10] Ibid.

[11] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798).

[12] 256 U.S. 368, 375 (1921).

[13] 307 U.S. 433 (1939).

[14] 256 U.S. 368, 375 (1921).

[15] 282 U.S. 716 (1931).

[16] Hawke _v._ Smith, 253 U.S. 221, 231 (1920).

[17] Leser _v._ Garnett, 258 U.S. 130, 137 (1922).

[18] Leser _v._ Garnett, 258 U.S. 130, 137 (1922).

[19] 64 Stat. 979 (1950).

[20] 256 U.S. 368, 376 (1921).

[21] Leser _v._ Garnett, 258 U.S. 130 (1922).

[22] 307 U.S. 433 (1939). _Cf._ Fairchild _v._ Hughes, 258 U.S. 126 (1922), wherein the Court held that a private citizen could not sue in the federal courts to secure an indirect determination of the validity of a const.i.tutional amendment about to be adopted.

[23] 307 U.S. 433, 459 (1939).

[24] Ibid. 446, 447.

[25] Ibid. 450, 456.

[26] Chandler _v._ Wise, 307 U.S. 474 (1939).

ARTICLE VI

MISCELLANEOUS PROVISIONS

Page Clause 1. Validity of debts and engagements 721 Clause 2. Supremacy of the Const.i.tution, etc. 721 National supremacy 721 Marshall's interpretation of the clause 721 Supremacy Clause versus Tenth Amendment 722 Status of the issue today 723 Task of the Supreme Court under the clause 724 Federal instrumentalities and the State police power 725 Obligation of State courts under the Supremacy Clause 726 Immunity of the federal judicial process 727 Effect of laws pa.s.sed by States in insurrection 728 Doctrine of tax exemption 728 McCulloch _v._ Maryland 728 Applicability of doctrine in re federal securities, etc. 729 Taxability of government contractors 730 Status of doctrine today 731 Ad valorem taxes under doctrine 732 Public property and functions 732 Fiscal inst.i.tutions; legislative exemptions 733 Atomic Energy Commission 734 Royalties; a judicial anticlimax 734 Immunity of lessees of Indian lands 735 Summation and evaluation 735 Clause 3. Oath of office 736 Power of Congress in respect to oaths 736 National duties of State officers 736

MISCELLANEOUS PROVISIONS

Article VI

Clause 1. All Debts contracted and Engagements entered into, before the Adoption of this Const.i.tution, shall be as valid against the United States under this Const.i.tution, as under the Confederation.

Clause 2. This Const.i.tution, 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 Const.i.tution or Laws of any State to the Contrary notwithstanding.

National Supremacy

MARSHALL'S INTERPRETATION OF THE CLAUSE

Although the Supreme Court had held prior to Marshall's appointment to the Bench, that the supremacy clause rendered null and void a State const.i.tutional or statutory provision which was inconsistent with a treaty executed by the Federal Government,[1] it was left for him to develop the full significance of the clause as applied to acts of Congress. By his vigorous opinions in McCulloch _v._ Maryland[2] and Gibbons _v._ Ogden[3] he gave the principle a vitality which survived a century of vacillation under the doctrine of dual federalism. In the former case, he a.s.serted broadly that "the States have no power, by taxation or otherwise, to r.e.t.a.r.d, impede, burden, or in any manner control, the operations of the const.i.tutional laws enacted by Congress to carry into execution the powers vested in the general government.

This is, we think, the unavoidable consequence of that supremacy which the Const.i.tution has declared."[4] From this he concluded that a State tax upon notes issued by a branch of the Bank of the United States was void. In Gibbons _v._ Ogden, the Court held that certain statutes of New York granting an exclusive right to use steam navigation on the waters of the State were null and void insofar as they applied to vessels licensed by the United States to engage in coastwise trade. Said the Chief Justice: "In argument, however, it has been contended, that if a law pa.s.sed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law pa.s.sed by Congress in pursuance of the Const.i.tution, they affect the subject, and each other, like equal opposing powers. But the framers of our Const.i.tution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of an act, inconsistent with the Const.i.tution, is produced by the declaration, that the Const.i.tution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State legislatures as do not transcend their powers, but though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the Const.i.tution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it."[5]