(Last update: Oct. 25, 2000)

SHORT EXPOSITION RE LAW OF RATIFICATION OF
CONSTITUTIONAL AMENDMENTS
BILL BENSON'S WEBPAGE

I. Introduction:

     In 1984, Bill Benson was traveling throughout the country checking the ratification of the 16th Amendment by each state in the Union in 1913. While he was doing this, I was engaged in the legal research regarding this issue and as soon as he finished his work, I raised the issue in the Janie Ferguson case in Indianapolis. The below is an extract from some of  the briefs I submitted on this very important question:

II. Excerpts of legal arguments:

   A. Relevant state cases.

   In reference to the contention that the issue of the ratification of any amendment to a constitution presents only a political question, analysis of the determination of this issue by various state courts is very probative. The great weight, if not the entire weight, of state authority is that issues concerning the ratification of amendments to state constitutions are properly judicial and not political issues. This proposition of law was precisely summarized by In re McConaughy, 106 Minn. 392, 119 N.W. 408 (1909), which held, after lengthy review of the authorities on this point, that an issue regarding the ratification or adoption of a constitutional amendment was clearly to be judicially resolved. Indeed, the U. S. Supreme Court has held that questions regarding the existence or non-existence of state laws presents a judicial question. In Town of South Ottawa v. Perkins, 94 U.S. 260 (1877), the Court succinctly stated:

    When an issue regarding the existence of a law is raised, the Supreme Court has expressly sanctioned courts to determine the validity of such law by review of any public documents available which render aid to the judicial mind. This was clearly stated in Gardner v. Collector, 73 U.S. (6 Wall.) 499, 511 (1868), where the Court stated:      An inexhaustive review of the multitude of state cases holding that an issue regarding the adoption of a constitutional amendment presents a judicial question is particularly appropriate under these circumstances. The substance of these cases is that state courts will hold an amendment invalid if it has not been properly and lawfully adopted, this invalidity being determined by examination of many public records, most notably legislative journals. It must also be noted that while state courts do inquire into the adoption of amendments, they sometimes have a different rule in regards to legislation, with some courts following the "journal entry rule," and others following the "enrolled bill rule;" see Field v. Clark, 143 U.S. 649, 12 S. Ct. 495 (1892).

     Probably the first state court to be confronted with the issue concerning adoption of constitutional amendments was the Alabama Supreme Court. In Collier v. Frierson, 24 Ala. 100, 109 (1854), this court invalidated an amendment to the state constitution for the reason that it had not been properly adopted. Here, the court held:

The rule enunciated in Collier has been frequently cited in many cases in other jurisdictions, and is still followed in Alabama. In Alabama v. Manley, 441 So. 2d 864 (Ala. 1983), the Alabama Supreme Court invalidated a legislative attempt to introduce an entirely new state constitution through the subterfuge of the amendment process. The bold attempt at legislative usurpation of constitutional restraints is clearly demonstrated and the reason for this rule is made obvious in Manley, supra.

     The Supreme Court of Arkansas likewise holds that it is a judicial function to determine the adoption of a constitutional amendment. In Rice v. Palmer, 78 Ark. 432, 96 S.W. 396 (1906), the court was confronted with the issue as to whether an amendment had received enough votes to be ratified, notwithstanding a plurality of votes in favor of the amendment. Here, the court struck the amendment and held that the issue presented was clearly a judicial one; see also Knight v. Shelton, 134 F. 423 (E.D. Ark. 1905).

     The cases from the California Supreme Court which hold that this issue is a judicial one are frequently cited. In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3 (1886), this court invalidated a state constitutional amendment which had been approved by the voters. The court considered the issue to be judicial and found that the state legislature had violated certain constitutional provisions when it had proposed the amendment. In Livermore v. Waite, 102 Cal. 113, 36 P. 424 (1894), the court likewise struck, on the basis of improper proposal by the legislature, an amendment to change the site of the seat of government, the State Capitol. In People v. Curry, 130 Cal. 82, 62 P. 516 (1900), the court struck an amendment proposed by the legislature during an extraordinary session which had been convened by the governor, the reason being that the legislature could not propose amendments during such sessions.

     The Florida Supreme Court likewise follows this rule. In Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, 967 (1912), Gilchrist, the State Governor, sued Crawford, the Secretary of State, to enjoin the publication of a proposed constitutional amendment. The court granted the relief sought by the governor and held that the issue was judicial. In doing so, the court delineated a precise situation in reference to such amendments in which an equitable remedy would lie:

     This rule is likewise followed by the Supreme Courts of Georgia and Idaho. In Hammond v. Clark, 136 Ga. 313, 71 S.E. 479 (1911), this court held that the issue was a judicial one and the governor's proclamation of the adoption of an amendment was not conclusive on the courts. In Green v. State Board of Canvassers, 5 Idaho 130, 47 P. 259 (1896), the court inquired into the number of votes cast in an election to adopt the amendment. While the court upheld the challenged amendment in Green, it struck an amendment in McBee v. Brady, 51 Idaho 761, 100 P. 97 (1909); in both of these Idaho cases, the issue was definitely considered to be a judicial one.

     It is obvious that the Illinois Supreme Court follows this same rule. In City of Chicago v. Reeves, 220 Ill. 274, 77 N.E. 237 (1906), and People v. Stevenson, 281 Ill. 17, 117 N.E. 747 (1917), the court addressed issues which challenged amendments, although the court upheld the amendments. In Indiana, the Indiana Supreme Court has on many occasions followed this rule and invalidated amendments. In State v. Swift, 69 Ind. 505 (1880), the Governor and Secretary of State proclaimed an amendment as having been adopted, but the court held the amendment void. In In re Denny, 156 Ind. 104, 59 N.E. 359 (1901), the court invalidated an amendment which did not receive a constitutional majority of the votes cast at election. In Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1 (1912), the court plainly stated that questions regarding adoption of amendments were judicial, and it voided the legislature's attempt to propose a new state constitution. See also Bennett v. Jackson, 186 Ind. 533, 116 N.E. 921 (1917).

     Cases on this issue from the Iowa Supreme Court are very probative. In Koehler v. Hill, 60 Iowa 543, 14 N.W. 738, 741-42, reh. den., 15 N.W. 609 (1883), the court was faced with a situation where it was clear that an amendment proposed by one legislature was different from the amendment subsequently submitted to the people for vote by the succeeding legislature. The amending clause of the Iowa Constitution required an amendment to be proposed by two different sessions of the legislature. In review of the legislative journals, it was obvious that there were minor changes in the different versions of the amendment proposed by the two different legislative sessions. This caused the court to hold the amendment invalid:

On rehearing, the court held that recitals contained in legislative resolutions will be held untrue if they are plainly untrue; 15 N.W., at 622. The amendment was invalidated in this case notwithstanding a popular vote in favor of it. In State v. Brookhart, 113 Iowa 250, 84 N.W. 1064 (1901), the court struck another amendment which had not been properly adopted.

     The courts in Kansas and Kentucky are in accord with this legal proposition. In State v. Sessions, 87 Kan. 497, 124 P. 403 (1912), the Attorney General prevented an amendment from being proposed for voting by the electors because he believed that the legislative journals showed that the same amendment had not been adopted by both houses of the legislature. Some years later, the Attorney General instituted suit to determine if the proposed amendment could, in fact, be submitted to the people for a vote. The court held it could not because the procedure for adopting an amendment had not been followed. In McCreary v. Speer, 156 Ky. 783, 162 S.W. 99 (1914), the Kentucky Supreme Court voided an amendment which had not been published within the time period required by the constitution.

     In Graham v. Jones, 198 La. 507, 3 So. 2d 761, 793-94 (1941), the Louisiana Supreme Court wrote a very lengthy opinion which voided an amendment because it had not been properly adopted. In response to allegations that such action would be extremely disruptive to the state government, the court stated:

     The Massachusetts Supreme Court, in Loring v. Young, 239 Mass. 349, 132 N.E. 65 (1921), determined that a proposed new rearranged state constitution was not effective and that the old constitution which was sought to be replaced was still in effect. The Michigan Supreme Court, when confronted with this question in Rich v. Board of State Canvassers, 100 Mich. 453, 59 N.W. 181 (1894), held that it was also a judicial one for decision by the courts.

     Both Mississippi and Missouri follow this proposition of law. In a frequently cited case rendered by the Mississippi Supreme Court, State v. Powell, 77 Miss. 543, 27 So. 927 (1900), the court struck an amendment and stated the issue was judicial. The same holding was made by the Missouri Supreme Court in Gabbert v. Chicago, R. I. and P. Ry. Co., 171 Mo. 84, 70 S.W. 891 (1902), although this court upheld the challenged amendment. The Montana Supreme Court voided two amendments for this reason in State v. Tooker, 15 Mon. 8, 37 P. 840 (1894), and Durfee v. Harper, 22 Mon. 354, 56 P. 582 (1899). An amendment was also struck in State v. Babcock, 17 Neb. 188, 22 N.W. 372 (1885), as were other amendments in State v. Tufly, 19 Nev. 391, 12 P. 835 (1887), and State v. Davis, 20 Nev. 220, 19 P. 894 (1888).

     The issue is considered judicial in New Jersey; see Bott v. Wurts, 63 N.J.L. 289, 43 A. 744 (1899). The same has been held in State v. Foraker, 46 Ohio St. 677, 23 N.E. 491 (1890), State v. State Board of Equalization, 107 Okl. 118, 230 P. 743 (1924), and Kadderly v. Portland, 44 Ore. 118, 74 P. 710 (1903), for the states of Ohio, Oklahoma, and Oregon. Similar holdings for South Dakota, Washington and Wisconsin can be found in Lovett v. Ferguson, 10 S.D. 44, 71 N.W. 765 (1897); Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); Gottstein v. Lister, 88 Wash. 462, 153 P. 595 (1915); State v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892); and State v. Marcus, 160 Wis. 354, 152 N.W. 419 (1915).

     The above survey of state cases regarding this issue, while not being exhaustive and inclusive of cases from every state, clearly shows that the great weight of state authority holds that questions concerning the adoption of an amendment to a state constitution are considered as judicial and not political issues.

     It is a common feature of many state constitutions to set forth the method through which an amendment to the constitution can be made. Such methods typically require one house of the legislature to propose an amendment, and this proposition must be accepted by the other legislative house. Some constitutions also require a subsequent legislative session to concur in a proposed amendment before it can be submitted to the voters at a general election. Other typical features related to propositions to amend state constitutions include publication of the proposed amendment for a period of time before the election, and also a majority vote in favor of the amendment by the total number of voters voting in the election. The challenges to the adoption of amendments to state constitutions have arisen in situations where it is alleged that the procedure or method required by the constitution has been violated. As seen from the above review, state courts have invalidated amendments when such have not been adopted in the method required by the constitution.

     To adopt a constitutional amendment, the state courts require not only precise conformity with the procedural method outlined in a constitution, but also precise concurrence. This means that both houses of a legislature must agree upon the same amendment, and this same amendment must be adopted by the people. No state court would sanction an amendment in a situation where both houses did not agree upon the same amendment, or where the people voted upon an amendment different from that proposed by the legislature. A failure in this respect vitiates the entire amendment because there is not complete but incomplete agreement on the amendment. This was aptly demonstrated in Koehler v. Hill, supra, where an amendment was determined not to have been adopted in accordance with the requirements of the Iowa Constitution because it was shown that there were minor word omissions between the amendment proposed by one legislative session and that proposed by a subsequent legislative session, which received the majority of the votes at election.

     Constitutions are general frameworks of government and are considered paramount and supreme law. Because they should not be changed for light or transient causes, propositions to change a constitution by amendment are major undertakings. Not only is it hard to amend a constitution, it is also hard to repeal an amendment once it has become a feature of the constitution. This is in contrast with ordinary legislation, which is, comparatively, easier to enact, change or repeal. Statutes can be passed on one day and amended or repealed the next. Thus, it is quite apparent that constitutional amendments are far more important, when considering their adoption, than enactment of ordinary legislation. Since they are relatively more important than ordinary legislation, an examination of the preciseness of concurrence in legislation required by the state courts is invaluable in determining the preciseness of concurrence required to adopt an amendment.

     The proposition of law demonstrated by the state cases in reference to the enactment of ordinary legislation is that both legislative bodies must adopt the same bill and the same bill must be presented to the governor for his approval or rejection. If there are material differences between the bill adopted by one legislative body and that adopted by the other, or if there are differences between that which is adopted by both houses and the bill approved by the governor, the state courts will hold that there was no valid enactment of the statute. See Ashcroft v. Blunt, 696 S.W.2d 329 (Mo. banc 1985); State v. Fridley, 126 Ariz. 419,616 P.2d 94, (Ariz.App. Div. 1 1980); and Watts v. Town of Homer, 207 So.2d 844 (La.App. 2 Cir. 1968). If this preciseness is required for ordinary legislation, then at least the same or a more stringent standard is required in the adoption of a constitutional amendment.

     An excellent example of a case dealing with concurrence in a proposed bill is Moog v. Randolph, 77 Ala. 597 (1884). Here, the Alabama legislature had adopted a bill which contained a certain phrase inserted in the same by way of amendment. In the bill sent to the governor, this phrase had been deleted, probably through error. Nonetheless, the Alabama Supreme Court struck the entire act, and in doing so stated:

 This is an established proposition of law in Alabama and the Alabama Supreme Court has invalidated other pretended acts of legislation on this basis; see King Lumber Company v. Crow, 155 Ala. 504, 46 So. 646 (1908); Mayor and Aldermen of West End v. Simmons, 165 Ala. 359, 51 So. 638 (1910); and Yancy v. Waddell, 139 Ala. 524, 36 So. 733 (1904). See also Board of Revenue of Jefferson County v. Crow, 141 Ala. 126,37 So. 469, (Ala. 1904).

     This maxim of law is followed in Arkansas. In Rogers v. State, 72 Ark. 565, 82 S.W. 169 (1904), the Arkansas Supreme Court voided a law wherein the difference between the Senate and House versions of the same bill consisted of the omission of the word "sheriff", and a difference in a fine levied in the act, which difference was "$500.00" in one version, and "$1,000.00" in the opposing version. Since there was no agreement between the two houses, the court found that there was no law. The same court also struck a law on this basis in McDougal v. Davis, 201 Ark. 1185, 143 S.W. 2d 571 (1940), where it was shown that the Senate had amended an act passed by the House, but the House had not concurred in the Senate amendment.

     Florida has several cases indicative of this proposition. In State v. Deal, 24 Fla. 293, 4 So. 899 (1888), the Senate passed a law with thirty-one sections in it; the House struck all thirty-one sections and substituted in lieu thereof an act with eight sections, and to this the Senate agreed. The enrolled bill had the first eight sections, as agreed by both houses, plus section nine through thirty-one of the original Senate bill and this enrolled bill was signed by house officers and approved by the governor. The court found, however, that the entire act was void because all parties, both houses and the governor, had not agreed upon the same piece of legislation. In Volusia County v. State, 98 Fla. 1166, 125 So. 375 (1929), reh. den., 125 So. 813 (1930), the legislative journals showed the passage of the same Senate bill, by number, in the House, but the title of that act as passed by the House was radically different. The court voided the law. In State v. Skaley, 108 Fla. 506, 146 So. 544 (1933), the Senate had adopted an act regulating the practice of "podiatry", while the House had adopted what purported to be the same measure, but which attempted to regulate the practice of "pediatry". The court held the act invalid. In Hillsborough County v. Temple Terrace Assets Co., 111 Fla. 368, 149 So. 473 (1933), the title to an act as passed by the Senate included the prepositional phrase,"in counties", and the word "last", but the House version of the same act omitted these words; the court struck the entire act. In State v. City of Sanford, 113 Fla. 750, 152 So. 193 (1934), both houses of the Florida legislature had adopted an act to amend a "Section 8" of an existing act. However, the enrolled bill, which had been signed by the governor, related to an amendment of "Section 6" of the same existing act. The court determined that the act was "not an operative law".

     The courts in Illinois will strike a purported act of the legislature if it is shown that all parties necessary for concurrence have not agreed to the same bill. In People v. Lueders, 283 Ill. 287, 119 N.E. 339 (1918), both houses adopted a bill with amendments; but the enrolled bill sent to the governor lacked the amendments. Because the act proposed by the legislature was different from that presented to the governor, the court voided the legislation.

     The courts in Louisiana, Maryland, Massachusetts and Michigan also follow this proposition of law. In State v. Laiche, 105 La. 84, 29 So. 700, 701 (1901), neither house of the Louisiana legislature had agreed upon the precise date on which the act in question would become effective; the court invalidated the entire act, saying, "There was no concurrence . . . of the two houses in the act as promulgated." In County Commissioners of Washington County v. Baker, 141 Md. 623, 119 A. 461 (1922), the Maryland Court of Appeals voided an act in a situation where a conference report was submitted to both houses regarding an act which could not be passed without such report; the House adopted the conference report but there was no record of the Senate having done so. There not having been a concurrence by both houses of the Maryland legislature, the act was determined to be no law. In Carnegie Institute of Medical Laboratory Technique, Inc. v. Approving Authority for Schools for Training Medical Laboratory Technologists, 213 N.E.2d 225 (Mass. 1965), the Massachusetts Supreme Court struck an enrolled bill which was shown to be different from that enacted by the legislature. In Rode v. Phelps, 80 Mich. 598, 45 N.W. 493 (1890), it was shown that both houses of the legislature had agreed upon certain amendments to an act, but that the act approved by the governor was different. The Michigan Supreme Court held that act void.

     Several cases from Nebraska affirm this proposition. In State v. McClelland, 18 Neb. 236, 25 N.W. 77 (1885), a bill passed by the legislature referred to counties with populations of "15,000" or more. The act approved by the governor referred to counties with populations of "1500" or more. Due to the differences, the court struck the law. In Weis v. Ashley, 59 Neb. 494, 81 N.W. 318 (1899), the title of the act passed by the legislature referred to a section "40" of an existing act; however, the act approved by the governor referred to a section "48". The Nebraska Supreme Court held that there was no concurrence in the legislative act and it was therefore void. In Moore v. Neece, 80 Neb. 600, 114 N.W. 767 (1908), it was shown that the Senate passed a bill which was amended in the House, but the Senate refused to concur in the House amendments. The court found that there was no law.

     The courts in New Jersey are in accord with this rule. In In re Jaegle, 83 N.J.L. 313, 85 A. 214 (1912), the bill as passed by the legislature was different from that approved by the Governor, Woodrow Wilson; the act was declared not to be a law. In In re Kornbluh, 134 N.J.L. 529, 49 A. 2d 255 (1946), the New Jersey Supreme Court invalidated an act in which it had been shown that both houses had not agreed.

     This proposition of law applies in Oregon and Tennessee. In Oregon Business and Tax Research, Inc. v. Farrell, 176 Ore. 532, 159 P. 2d 822 (1945), the bill as adopted by both houses was different from the bill presented to and approved by the governor; because there was no concurrence, the act was held not to be law. In Fuqua v. Davidson County, 189 Tenn. 645, 227 S.W. 2d 12 (1950), both houses did not agree on the same act and the act was held to be void by the Tennessee Supreme Court.

     Lastly, the courts in Wisconsin and Wyoming agree with this maxim of law. In State v. Wendler, 94 Wis. 369, 68 N.W. 759 (1896), an act was struck because both houses did not agree upon the same bill. In State v. Wisconsin State Board of Medical Examiners, 172 Wis. 317, 177 N.W. 910 (1920), the difference between the two houses in an act consisted merely in the words "and" and "or"; however, the act was found not to be law on the basis of the failure of both houses to concur with this crucial word. In State v. Swan, 7 Wyo. 166, 51 P. 209 (1897), the Supreme Court of Wyoming invalidated a legislative act wherein the act adopted by the legislature was different from the act approved by the governor.

     While cases from every jurisdiction are not cited above, this survey on this point not being exhaustive, this proposition of law that both houses of a legislature and the governor must agree to the identical piece of legislation before such may become a law is well supported by authority. While in many of the above cases the differences between the two legislative houses on a given bill, or the differences between a bill enacted by both houses and that which is submitted to the governor are great, many of the above cases disclose situations where the differences are minute. In any event, it is clear that state courts insist upon absolute identity between the acts adopted by both houses of a legislature and between the act adopted by both houses and that submitted to the governor. If there is a lack of concurrence among all the bodies which are involved in the legislative process in reference to a particular legislative act, then it will be determined that there is no law.

   B. The federal amendment process.

     The power to amend the United States Constitution is found in Article V thereof, which Article is basically a more expanded version of the amending clause of the Articles of Confederation entered into by the original thirteen states of our nation on March 1, 1781. Under Article XIII of the Articles of Confederation, amendments to the same were to be proposed by Congress and confirmed by all state legislatures. This method of amendment in addition to three other methods is found in Article V, the only exception being that only three-fourths of the states are necessary to ratify an amendment.

     The Philadelphia Convention of 1787 was called for the express purpose of amending and revising the existing Articles. However, while this Convention met, it became apparent that an entirely new constitution was needed. As the body of this new constitution developed over the summer months of 1787, the members of the Convention devoted time to providing a method for the adoption of amendments to the revolutionary constitution the Convention was to ultimately propose. For the sake of brevity, the work of the Convention on Article V is carefully recounted in the excellent law review article of Paul Scheips entitled, "The Significance and Adoption of Article V of the Constitution," 26 Notre Dame Lawyer 46 (1951). When the Convention completed its work, it was decided that the new constitution would not be adopted via the method set forth in the Articles of Confederation and, instead, it was proposed that state conventions would ratify the new constitution instead of the state legislatures. It was further provided that ratification of the Convention's work by nine states would put the Constitution into effect. Because the U. S. Constitution was adopted by state conventions and not by the method provided in the Articles, it appears that the present Constitution of the United States was enacted in a bloodless revolution by the people.

    Some events which occurred in the various state conventions considering the ratification of the U. S. Constitution are particularly enlightening to the issue under consideration. The Convention submitted the new Constitution to Congress on September 17, 1787, and Congress submitted this document to the states for ratification on September 28, 1787. On such submission, advocates and opponents of the new Constitution quickly divided into two separate factions known as the Federalists and the Anti-Federalists. The first state to ratify the Constitution was Delaware, which did so on December 7, 1787. Pennsylvania followed on December 12, 1787, and New Jersey adopted the Constitution on December 18, 1787. On January 2, 1788, Georgia ratified the Constitution, and other ratifications were made by Connecticut on January 9, 1788, and Massachusetts on February 6, 1788; Massachusetts was the first state to make a suggestion regarding proposed amendments to the new Constitution. Maryland thereafter followed with its ratification on April 28, 1788. After these seven states had ratified, South Carolina ratified the Constitution on May 23, 1788, thus making it the eighth state to ratify.

     By June of 1788, only one additional state was needed to ratify the Constitution and put it into effect. During this month, conventions were being held in New Hampshire, New York and Virginia, and the Anti-Federalists considered it crucial to secure defeats for the Constitution in these crucial state conventions. The President of the New York Convention was George Clinton, a known Anti-Federalist. Alexander Hamilton was a delegate to the New York Convention and James Madison was a delegate to the Virginia Convention. In the correspondence between these two advocates of the Constitution, faithfully reprinted in The Works of Alexander Hamilton by Henry Cabot Lodge, it is readily seen that the Anti-Federalists sought, failing a vote against ratification, to secure the legal equivalent thereto by securing a ratification based upon conditions. In Hamilton's letter to Madison dated June 21, 1788, Hamilton stated that the "object of the party at present is undoubtedly conditional amendments;" the party referred to being the Anti-Federalists. On June 22, 1788, Madison wrote to Hamilton to inform him of the debate of the Virginia Convention; Madison therein referred to the actions of the opponents of the Constitution and stated the "opponents will probably bring forward a bill of rights, with sundry other amendments, as conditions of ratification." On July 8, 1788, Hamilton wrote to Madison again and mentioned the problem in the following fashion:

This evoked a response from Madison to Hamilton wherein Madison stated that conditional ratification was the equivalent of rejection: Notwithstanding the maneuvering by the Anti-Federalists, New Hampshire ratified on June 21, 1788, followed by Virginia on June 26, 1788, and New York on July 26, 1788. These states ratified the Constitution without any conditions, but did make many suggestions regarding amendments. With the adoption of the Constitution by these states, the requisite number necessary to form a national government was achieved.

     Lester B. Orfield was perhaps the most knowledgeable scholar regarding Article V of the Constitution, and in his law review article entitled "The Procedure of the Federal Amending Power", 25 Ill. Law Rev. 418, at p. 437, he mentioned the above problem of conditional ratification of the Constitution. Orfield noted that the view of Hamilton and Madison was to the effect that a conditional ratification was the equivalence of a rejection. This view was accepted by the state conventions, "and as a result each state accepted the Constitution with no reservations, the obligation to adopt the Bill of Rights being wholly moral". Jameson, in his work entitled A Treatise on Constitutional Conventions, 1887 edition, at p. 629, also noted this very same problem of conditional ratification. He recounted this situation and reached a conclusion based thereon:

     It must also be noted that while Madison stated in his letter to Hamilton quoted above that conditional ratifications were the equivalent of rejection, he further stated that the Constitution had to be adopted "in toto," and no state could ratify a part of the Constitution and reject the remainder. The principle of law to which Madison referred was that of concurrence and he plainly held that all states must agree upon every part of the Constitution as well as the whole. Burgess, in his definitive work entitled Political Science and Comparative Constitutional Law, vol. 1 at pp. 149-150, applied this very same principle to constitutional amendments and declared: Thus, it is quite obvious that Hamilton and Madison, two of the founding fathers of this nation and seminal forces behind the effort to adopt the U. S. Constitution, clearly discerned a legal principle that has been accepted by the courts of this nation and constitutional scholars alike. This clearly enunciated principle has direct application to the question of the ratification of the Sixteenth Amendment.

     Probably the most litigated sections of the U. S. Constitution involve those found in Article 1, Sections 8 and 9, which concern grants of power to Congress and limitations thereon. In stark contrast, it is fair to say that perhaps the least litigated part of the Constitution is Article V. Regarding the ratification of the Sixteenth Amendment, the decisions by the Supreme Court involving this Article disclose that this precise issue has never been addressed. Further, when decisions regarding Article V are compared with other decisions having direct application to this issue, it appears that there is no clear precedent or "polestar" decision which controls the decision of this issue. Such being the case, reference to state court cases which do address this issue is essential.

     The first case decided by the U. S. Supreme Court involving the provisions in Article V is Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). Here a challenge was made to the ratification of the Eleventh Amendment and it was contended that this amendment was void for the reason that the President had not approved the amendment. The Court, in one of the shortest decisions ever made, ruled against this argument. Justice Chase in a footnote explained that the President was not involved in the amendment process; the issue of a political question was not considered in this case.

     Concerning the question of adoption of constitutions as opposed to constitutional amendments, Luther v. Borden, 48 U.S. (7 How.) 1 (1849), is reputed to stand for the proposition that questions involving the adoption of new state constitutions are inherently political. This case arose out of Dorr's Rebellion in Rhode Island in 1841 and 1842. During this period, Rhode Island operated pursuant to a constitution which provided no method for its amendment or for adoption of a new constitution. Dorr and his followers held a convention and adopted a new constitution which was submitted to the people for a vote. With the alleged adoption of this constitution, elections for state offices were held and Dorr was elected governor. Thereafter, Dorr and his followers attempted to gain possession of the state arsenal from the possession of the charter government, but this attempt was unsuccessful. However, Dorr's effort did result in establishing a political climate in the state which compelled the charter government to call a convention to write a new state constitution. This new constitution was adopted and a new government established pursuant to it. The new government then indicted Dorr for treason and he was tried in a court established according to the provisions of the new constitution. The Rhode Island appellate court held that the question of which constitution was effective, either Dorr's or the one under which the Rhode Island charter government operated in 1841 and 1842, was a political issue. On appeal, the Supreme Court, pursuant to its practice of abiding by state court decisions, refused to reverse. The decision in Luther has been distinguished by the state courts, particularly where the issue is the adoption of a constitutional amendment; see Koehler v. Hill, supra, 15 N.W., at 610-11. On the same issue regarding adoption of new constitutions, state courts have not followed Luther and have held that such questions were judicial; see Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1 (1912), and Alabama v. Manley, 441 So. 2d 864 (Ala. 1983).

     After the Civil War, the Supreme Court, in two cases concerning the legislative enactment of statutes, held that questions regarding the adoption of such were judicial issues. In Gardner v. Collector, 73 U.S. (6 Wall.) 499 (1868), the question involved the date on which a federal statute became effective. Here, the Court held that courts were to address issues of this type. A similar holding in reference to a state statute, in Town of South Ottawa v. Perkins, 94 U. S. 260 (1877), was made. Thus, within one hundred years of decisions being rendered by the U. S. Supreme Court, it had ruled once that questions concerning the adoption of a law, a state constitution, presented political issues, and had also ruled that adoption of laws, state and federal statutes, presented judicial issues. It seems that precisely what was a judicial issue and what was a political issue involved ephemeral, nebulous concepts. What followed certainly did not clarify the problem.

     In Field v. Clark, 143 U.S. 649, 12 S. Ct. 495 (1892), the controversy before the Court concerned the enactment of a federal statute. Here the Senate and House journals disclosed the entire language of a statute adopted by both houses; the enrolled bill, however, when compared with the bill set forth in the journals, disclosed that a certain section of the bill had been omitted. The Supreme Court resolved the validity of this act by adopting the enrolled bill rule, which precludes reference to legislative journals to determine the passage of a legislative act.

     Cases entitled to great precedential value are those which are persuasive in reasoning, based upon established authority, and establish a trend in resolving a particular issue with such trend having a life of many years. An example of this is the precedential value of Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524 (1886), which was not reversed until the decision in United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237 (1984). If Field v. Clark, supra, set a definitive trend in the law, it seems that the Court would have at least let a few years pass before it carved out an exception to this rule. But, this the Court did not do in reference to Field v. Clark, which was decided on February 29, 1892. On the very same day that Field v. Clark was rendered, the Supreme Court, in the very next case decided, seems to have thrown the enrolled bill rule out the window. In United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507 (1892), the issue concerned whether an act of Congress had been adopted. Specifically, the journal of the House showed that 212 members were present when the bill in question was submitted for a vote, and this number was a quorum. However, the precise vote on the bill was 138 yeas, 0 nays, and 189 not voting; of the number not voting, 74 members were present. The Court decided this case by holding that a majority of a quorum was all that was necessary to adopt an act. The question naturally arises as to the precedential value of Field v. Clark, especially when the Court creates an exception to the enrolled bill rule in the immediately following case. These two cases only further clouded the distinction between political and judicial issues.

     Of all the amendments to the U. S. Constitution, it was the Eighteenth and Nineteenth Amendments which created more litigation in reference to their ratification than any others to date. Perhaps the first case challenging the Eighteenth Amendment before its ratification was Ohio v. Cox, 257 F. 334 (W.D. Ohio 1919). Here, the suit involved an effort to enjoin the Governor of Ohio from conveying the Congressional resolution proposing this amendment to the Ohio legislature, and the challenge was based upon the fact that two-thirds of the entire membership of both houses of Congress had not voted in favor of the resolution, while those who had so voted were two-thirds of a quorum. The court did not grant the relief sought in the suit and held that such issues could be raised later after ratification of the amendment.

     At the time of the submission of the Eighteenth Amendment to the states for ratification, several states had provisions for submitting amendments to the voters of the states in initiatives and referenda. In In re Opinion of the Justices, 118 Me. 544, 107 A. 673 (1919), the Maine Supreme Court held that the referendum requirement of the Maine Constitution did not apply to federal constitutional amendments; see also Herbring v. Brown, 92 Ore. 176, 180 P. 328 (1919). A contrary holding was made in Hawke v. Smith, 100 Ohio St. 385, 126 N.E. 400 (1919), which held that the Eighteenth Amendment was subject to that state's referendum requirement. But, this decision was reversed in Hawke v. Smith, 253 U.S. 221, 40 S. Ct. 495 (1920), and the Supreme Court ruled that state referenda laws did not apply to amendments of the U. S. Constitution.

     The ratification of the Eighteenth Amendment was not warmly received by manufacturers of alcoholic beverages, and some states, and this resulted in protracted litigation. In Christian Feigenspan, Inc. v. Bodine, 264 F. 186 (D.N.J. 1920), the challenge to this amendment involved several points. In this case, the subject matter of the amendment was challenged as well as whether Congress had ever considered that the amendment itself was necessary, this latter challenge being based upon a certain phrase in Article V. Another issue concerned the fact that at least twelve states had referenda requirements which had not been followed in the ratification of this amendment. This suit was dismissed, and the beer manufacturer appealed. This case and several others filed in the original jurisdiction of the Supreme Court resulted in the case of Rhode Island v. Palmer (The National Prohibition Cases), 253 U.S. 350, 40 S. Ct. 486 (1920). Here, the Supreme Court took the extremely unusual course of rendering opinions and simply made several holdings resolving the issues which had been raised. The Court held that a Congressional resolution showing the necessity of an amendment was not required, and it further held that it only took two-thirds of a quorum of both houses to adopt a resolution proposing an amendment.

     Another issue raised in the courts concerning the ratification of the Eighteenth Amendment concerned the proclamation made by the U. S. Secretary of State that an amendment had been ratified. In United States ex rel Widenmann v. Colby, 265 F. 998 (1920), aff., 257 U.S. 619, 42 S.Ct. 169 (1921), the court held that the Secretary of State was merely performing a ministerial act in making such proclamation and that an amendment became a part of the U. S. Constitution when ratified by the requisite number of states, and not when the Secretary's proclamation is made. The same issue was raised in a habeas corpus petition concerning a man convicted under the National Prohibition Act. In Ex parte Dillon, 262 F. 563 (N.D. Cal. 1920), the court held that the amendment became effective upon ratification, and not on the date of the Secretary's proclamation. This holding was affirmed in Dillon v. Gloss, 256 U.S. 368, 41 S. Ct. 510 (1921). While these cases did not place much emphasis upon the proclamation of the Secretary in holding that his act was ministerial and that an amendment was effective upon ratification by the required number of states, the Supreme Court, in Leser v. Garnett, 258 U.S. 130, 42 S. Ct. 217 (1922), in a challenge to the Nineteenth Amendment, held that such proclamation was conclusive upon the courts. The decision in Leser is contradictory to those in state courts on the same point; see State v. Swift, 69 Ind. 505 (1880); Hammond v. Clark, 136 Ga. 313, 71 S.E. 479 (1911); and Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912).

     The Eighteenth Amendment was later repealed by the Twenty-First Amendment, which was ratified by state conventions. But, before the demise of the Eighteenth Amendment, the Supreme Court was faced with the question of whether that amendment should have been ratified by state conventions. In United States v. Sprague, 282 U.S. 716, 51 S. Ct. 220 (1931), the lower court had dismissed an indictment on the basis that the Eighteenth Amendment was void as it had not been ratified by state conventions. This decision was reversed and the Supreme Court held that Article V granted to Congress the power to select the mode of ratification, and Congress could choose such to be ratified by either the state legislatures or state conventions.

     In June, 1924, Congress proposed an amendment to the U. S. Constitution known as the "Child Labor Amendment." The Congressional resolution so proposing the amendment did not contain a time frame in which the amendment should be adopted. This amendment was never popular and this explains why it is not a part of our U. S. Constitution; however, it still spawned litigation. In Wise v. Chandler, 270 Ky. l, 108 S.W. 2d 1024 (1937), the Kentucky legislature had previously rejected this amendment in 1926. In 1937, the same body adopted this amendment, and this suit resulted in a challenge to such ratification. Here, this Kentucky court held that the first action by the legislature on an amendment, be it ratification or rejection, precluded further action. As an additional buttress to this decision, the court found that more than one-fourth of the states had already rejected the amendment and this made the amendment no longer available for consideration. In contrast with this decision, the Kansas Supreme Court made different holdings in Coleman v. Miller, 146 Kan. 390, 71 P.2d 518 (1937), in reference to the same amendment. Here, the Kansas legislature had rejected this amendment in 1925, but had allegedly reconsidered and ratified it in 1937. In the Kansas Senate, the vote on this ratification resolution was 20 in favor and 20 opposed; the Lt. Governor cast the deciding vote in favor of the amendment. The court held that a subsequent legislature could ratify an amendment notwithstanding previous rejection, and that the Lt. Governor could cast the deciding vote. It further held that the lapse of time since the pendency of the amendment did not preclude ratification. With the decisions in Wise and Coleman being opposite on the same issues, it was natural for the Supreme Court to hear these cases.

     The Supreme Court granted certiorari to Coleman, and its ultimate decision in Coleman v. Miller, 307 U. S. 433, 59 S. Ct. 972 (1939), was clearly the result of compromise in conference. Faced with authority pro and con on the point of a state both rejecting and ratifying an amendment, the Court took a safe course of action and held that such question was political; see first full paragraph at 307 U.S., at 450. In reference to an amendment being void for lapse of time, the Court took the same safe approach to this issue and ruled that its resolution was also a political question. By examining the way the Justices decided this case, much can be learned about the real merit of the case itself. Only Justices Frankfurter, Roberts, Black, and Douglas believed that the entire amendment process was exclusively political and involved no judicial questions. However, if these four Justices had their way in deciding the case, they would have held that the legislators had no standing to sue. Arrayed against the opinion of these four were two dissenters, Butler and McReynolds, and the remainder of the majority, Hughes, Stone, and Reed. Thus, Coleman decided that only two issues before the Court were political, and these issues are not the same as those being raised here. Wise was decided in the opinion following Coleman; see Chandler v. Wise, 307 U.S. 474, 59 S. Ct. 992 (1939).

     Since the decision in Coleman, there have been no other opinions rendered by the Supreme Court which directly deal with Article V other than Kimble v. Swackhamer, 439 U.S. 1385, 99 S. Ct. 51 (1978). Kimble dealt only with an initiative and referendum in the State of Nevada in regards to the Equal Rights Amendment, and is not of any importance to this issue. But, silence in this respect is in no way indicative of a lack of development in the law which affects this issue.

     In reference to the issue of what is a political issue and what is a judicial issue, the Supreme Court has made quantum leaps in further defining the precise distinction. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962), dealt with apportionment of the Tennessee legislature, and the Court considered at length certain standards for resolving the political-judicial question. Upon resolving that legislative apportionment involved a judicial question, the Supreme Court proceeded with reapportionment in Tennessee and subsequently in Alabama; see Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964). The next opportunity for the Supreme Court to consider the distinction between political and judicial issues was in Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944 (1969), which dealt with the seating of Adam Clayton Powell in the U. S. House of Representatives. If there was ever a proper situation in which Congress could confidently assert the political question doctrine, it was in this case, yet the Court found the issue to be judicial. In this case, the Court definitely went behind the acts of the House to view the proceedings therein. In United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090 (1974), claims of executive privilege and political question were insufficient to stop a subpoena for Richard Nixon's infamous tapes. Finally, in Goldwater v. Carter, 444 U.S. 996, 100 S. Ct. 533 (1979), in a case involving the Presidential abrogation of a treaty with the Republic of China, the opinion was that such issue was judicial, although the case was not ripe for review. In determining that the issue was judicial, the Court followed only three of the criteria set forth in Baker v. Carr, supra, concerning what was a judicial issue.

     The above cases of the Supreme Court which set forth the guidelines for distinguishing political and judicial issues formed the bases upon which two U. S. district courts have determined that controversies regarding the ratification of the Equal Rights Amendment were justiciable. In Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975), the issue concerned whether the Illinois legislature had adopted the E.R.A. The conflict revolved around an Illinois constitutional provision which required a three-fifths vote of both houses to ratify a federal amendment; further, rules in both houses likewise required the same vote. In a lengthy opinion, the court held that legislative houses could set their own rules for adoption of such an amendment, and since both houses here had rules requiring a three-fifths vote, and since both had adopted the amendment resolution only by a majority, the court held that the Illinois legislature had not ratified the E.R.A. In Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), another challenge to the ratification of E.R.A. was held to be justiciable. Here the question presented to the district court involved Idaho's rescission of a previous ratification of the E.R.A.; in a well written, scholarly and lengthy opinion, the court analyzed the distinction between political and judicial issues and held that the questions presented were plainly judicial. The court ruled that Idaho could rescind its previous ratification, and it found that Congress lacked power to extend the period of time for ratification. The appeal of this case was dismissed for mootness; see Carmen v. Idaho, 459 U.S. 809, 103 S. Ct. 22 (1982).

(Other parts of briefs omitted).

III. This question, contrary to the assertions of some, is in fact important.

     The recent, renewed interest in the issue of the non-ratification of the 16th Amendment has drawn some comments that the amendment legally did nothing: in the words of the Supreme Court, the amendment did not confer any new taxing powers. Based on this statement of the Supreme Court, some contend that this issue is meaningless. Those who believe this are mistaken and do not understand what the Supreme Court has decided in the series of cases regarding the income tax.

     Under the United States Constitution, Congress can impose two types of taxes: direct taxes, which must be apportioned via the census, and indirect taxes, which must be uniform. Before the Supreme Court's decision in the Pollock case, the Court had determined that income taxes imposed upon the income of certain people were excises taxes which need not be apportioned, but only uniform. But things changed with the decision of the Supreme Court in Pollock.

     At issue in the 1894 Pollock case was the question of whether income from real property (land) and personal property (stocks, bonds, etc.) could be subjected to a federal income tax via a law which was not apportioned. In Pollock, the Court held that a tax upon the income from land was a direct tax. Clearly, Congress could tax the income from land and has always had that power provided the tax was apportioned, which is extremely difficult. However, since the 1894 federal income tax was uniform and not apportioned, it was held unconstitutional. Even today, it would be virtually impossible to apportion an income tax on land. If you wish to read the first Pollock decision, it is posted on FindLaw and may be accessed just by clicking here.

     After the first Pollock decision and in response to a petition for rehearing, the Court had to determine the remaining question of whether taxes on the income from personal property  were also direct taxes which must be apportioned. Again, the Court concluded that an income tax on the income from personal property could only be taxed via an apportioned tax. If you wish to read the opinion of the Pollock Court on rehearing, click here.

     In summary, the Pollock Court held that, while Congress has always had the power to tax incomes from real and personal property, such taxes had to be apportioned; an uniform income tax could not tax such income. Once this is understood, the meaning of the above statements that the amendment "conferred no new taxing powers" becomes clear.

     However, the Supreme Court in Pollock held the whole 1894 federal income tax void. A decision simply invalidating the 1894 income tax insofar as it concerned the income from real and personal property would have left the tax to be borne entirely by  "professions and occupations" and the Court determined that Congress would not have adopted the 1894 tax if the tax was invalid as to incomes from real and personal property. Here is the Court's rationale for holding the entire 1894 income tax void:

     Based upon the decision in Pollock, the 16th Amendment is absolutely essential to enable Congress to impose an uniform tax upon incomes from real and personal property, contrary to the popular beliefs of some. Without the amendment, Congress could not impose uniform taxes upon the income of real and personal property. If the 16th Amendment were declared today to be void because of the defects discovered by Bill Benson, income taxes on the income of real and personal property would fall. But it does not stop there. Clearly just like the Pollock Court observed, Congress would not have imposed this tax to be borne entirely by the professions and occupations if the taxes on income from real and personal property were constitutionally invalid. Thus everyone should have an interest in the question of the ratification of the 16th Amendment.

IV. Conclusion.

     So what happened to this issue in federal court? Those courts held that this was an issue they could not address, the question being a political rather than a judicial question; seeUnited States v. Thomas, 788 F.2d 1250 (7th Cir. 1986); United States v. Foster, 789 F.2d 457 (7th Cir. 1986); United States v. Ferguson, 793 F.2d 828 (7th Cir. 1986); United States v. Stahl, 792 F.2d 1438 (9th Cir. 1986), and United States v. Sitka, 845 F.2d 43 (2nd Cir. 1988).