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, 72 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. 73 This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the proposed child labor amendment to the Constitution to the effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds: (1) that the amendment had been previously rejected by the state legislature; (2) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Kansas 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 with regard to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process ''is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point.'' 74 In an opinion reported as ''the opinion of the Court,'' but in which it appears that only two Justices joined Chief Justice Hughes who wrote it, it was declared that the writ of mandamus was properly denied, because the question whether a reasonable time had elapsed since submission of the proposal was a nonjusticiable political question, the kinds of considerations entering into deciding being fit for Congress to evaluate, and the question of the effect of a previous rejection upon a ratification was similarly nonjusticiable, because the 1868 Fourteenth Amendment precedent of congressional determination ''has been accepted.'' 75 But with respect to the contention that the lieutenant governor should not have been permitted to cast the deciding vote in favor of ratification, the Court found itself evenly divided, thus accepting the judgment of the Kansas Supreme Court that the state officer had acted validly. 76 However, the unexplained decision by Chief Justice Hughes and his two concurring Justices that the issue of the lieutenant' governor's vote was justiciable indicates at the least that their position was in disagreement with the view of the other four Justices in the majority that all questions surrounding constitutional amendments are nonjusticiable. 77
However, Coleman does stand as authority for the proposition that at least some decisions with respect to the proposal and ratifications of constitutional amendments are exclusively within the purview of Congress, either because they are textually committed to Congress or because the courts lack adequate criteria of determination to pass on them. 78 But to what extent the political question doctrine encompasses the amendment process and what the standards may be to resolve that particular issue remain elusive of answers.
[Footnote 72] Leser v. Garnett, 258 U.S. 130 (1922).
[Footnote 73] 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 constitutional amendment about to be adopted.
[Footnote 74] Coleman v. Miller, 307 U.S. 433, 456 , 459 (1939) (Justices Black, Roberts, Frankfurter, and Douglas concurring). Because the four believed that the parties lacked standing to bring the action, id., 456, 460 (Justice Frankfurter dissenting on this point, joined by the other three Justices), the further discussion of the applicability of the political question doctrine is, strictly speaking, dicta. Justice Stevens, then a circuit judge, also felt free to disregard the opinion because a majority of the Court in Coleman ''refused to accept that position.'' Dyer v. Blair, 390 F. Supp. 1291, 1299-1300 (D.C.N.D.Ill. 1975) (three-judge court). See also Idaho v. Freeman, 529 F. Supp. 1107, 1125-1126 (D.C.D.Idaho, 1981), vacated and remanded to dismiss, 459 U.S. 809 (1982).
[Footnote 75] Coleman v. Miller, 307 U.S. 433, 447 -456 (1939) (Chief Justice Hughes joined by Justices Stone and Reed).
[Footnote 76] Justices Black, Roberts, Frankfurter, and Douglas thought this issue was nonjusticiable too. Id., 456. Although all nine Justices joined the rest of the decision, see id., 470, 474 (Justice Butler, joined by Justice McReynolds, dissenting), one Justice did not participate in deciding the issue of the lieutenant governor's participation; apparently, Justice McReynolds was the absent Member. Note, 28 Geo. L. J. 199, 200 n. 7 (19). Thus, Chief Justice Hughes and Justices Stone, Reed, and Butler would have been the four finding the issue justiciable.
[Footnote 77] The strongest argument to the effect that constitutional amendment questions are justiciable is Rees, Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension, 58 Tex. L. Rev. 875, 886-901 (1980), and his student note, Comment, Rescinding Ratification of Proposed Constitutional Amendments--A Question for the Court, 37 La. L. Rev. 896 (1977). Two perspicacious scholars of the Constitution have come to opposite conclusions on the issue. Compare Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386, 414-416 (1983) (there is judicial review), with Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role, 97 Harv. L. Rev. 433, 435-436 (1983). Much of the scholarly argument, up to that time, is collected in the ERA-time-extension hearings. Supra, n. 40. The only recent judicial precedents directly on point found justiciability on at least some questions. Dyer v. Blair, 390 F. Supp. 1291 (D.C.N.D.Ill., 1975) (three- judge court); Idaho v. Freeman, 529 F. Supp. 1107 (D.C.D.Idaho, 1981), vacated and remanded to dismiss, 459 U.S. 809 (1982).
[Footnote 78] In Baker v. Carr, 369 U.S. 186, 214 (1962), the Court, in explaining the political question doctrine and categorizing cases, observed that Coleman ''held that the questions of how long a proposed amendment to the Federal Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp.'' Both characteristics were features that the Court in Baker, supra, 217, identified as elements of political questions, e.g., ''a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.'' Later formulations have adhered to this way of expressing the matter. Powell v. McCormack, 395 U.S. 486 (1969); O'Brien v. Brown, 409 U.S. 1 (1972); Gilligan v. Morgan, 413 U.S. 1 (1973). However, it could be argued that, whatever the Court may say, what it did, particularly in Powell but also in Baker, largely drains the political question doctrine of its force. See Uhler v. AFL-CIO, 468 U.S. 1310 (1984) (Justice Rehnquist on Circuit) (doubting Coleman's vitality in amendment context). But see Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (opinion of Justices Rehnquist, Stewart, Stevens, and Chief Justice Burger) (relying heavily upon Coleman to find an issue of treaty termination nonjusticiable). Compare id., 1001 (Justice Powell concurring) (viewing Coleman as limited to its context).