Not long ago, I was listening to a radio talk show and was assured by a caller that the Supreme Court, in the case of Coleman v. Miller, had delegated all important decisions over the amendment process to Congress. In other words, the caller said, Congress can make all decisions on every amendment issue: how states apply for a convention, how the convention conducts its business, whether amendments are ratified, etc., etc. Neither the states nor the courts would have anything to say about it.
Interesting assertion. Problem is, it’s not true.
The Supreme Court decided Coleman v. Miller in 1939. The case arose from a dispute over whether the Kansas legislature had properly ratified a proposed amendment to grant Congress authority over child labor. (All states banned child labor, but their laws were inconsistent.) The amendment had been pending for over 13 years, and the Kansas legislature earlier had rejected it.
So one question was whether Kansas could ratify an amendment after its earlier rejection. Another was whether Kansas could ratify an amendment 13 years after it was proposed. Still another was whether the lieutenant governor should have been allowed to cast a vote in an evenly-divided state senate. And there also was an issue of whether the plaintiffs had standing.
The Kansas Supreme Court upheld the ratification, and all those issues went to the U.S. Supreme Court.
The U.S. Supreme Court’s opinion was written by Chief Justice Charles Evans Hughes, an old-line progressive with a sterling legal reputation. This is how he ruled:
* The plaintiffs had standing.
* Apparently because the Supreme Court justices were evenly divided (one justice may not have participated) on whether they could consider the lieutenant governor issue, the Kansas court’s judgment upholding the lieutenant governor’s vote was sustained.
* Historical practice had been to leave to Congress the decision of whether a state ratification was valid if the same state had earlier (or later) rejected it.
* There was no way the Court could judge how long a proposed amendment might last. That was a judgment for Congress to make—by, for example, inserting a time limit in its original proposal.
The case certainly does not hold that Congress has complete control of the amendment process. I’ll address below where that misconception came from.
Two holdings in Coleman v. Miller were particularly notable, but only one remains important today. The Court’s rulling that it couldn’t judge how long a proposed amendment lasted is no longer relevant. That’s because America agreed in 1992 that proposed amendments lasted forever, unless they were withdrawn. We so agreed when we ratified the Twenty-Seventh Amendment, which Congress had proposed in 1789, more than two centuries earlier.
The part of the Coleman case still important today is its holding that courts interpret Article V in light of history. It was history that told the Court that Congress could resolve the conflict between a state’s ratification and its rejection. In this respect, though, Coleman is not unique: Both before and since, many judicial decisions have followed history in interpreting Article V.
Coleman also seems to clarify (although not entirely) that when Congress imposes a time limit on ratifying an amendment it proposes, Congress can do so because the time limit is part of its proposal. In other words, Congress’s authority to impose time limits doesn’t come from its prerogative to choose between the state convention and state legislative “modes of ratification,” as an earlier case had decided. It comes from its authority to propose. The implication is this: Although Congress can time-limit its own proposed amendments, it cannot impose time limits on an amendment proposed by an amendments convention.
Two justices dissented from the Court’s holding. They argued that the Child Labor Amendment proposal had expired. Four others concurred in the result, arguing that the plaintiffs had no standing.
There was another concurring opinion, too—this one written by Justice Hugo Black for himself and three colleagues. He claimed Congress enjoyed complete control over the amendment process and the courts had no power to review any of Congress’s decisions on that process. That’s where the misunderstanding about Coleman started. The notion that everything should be left to Congress did not come from the Court’s holding, but from the views of a minority.
Of course, anyone who reads Article V knows that the Black position was nonsense. Not surprisingly, subsequent court cases have rejected it repeatedly.
So why did Black make such a claim?
In 1939, the Court was entering the time period in which it was probably more deferential to Congress and the President than at any other time in our history. (Just five years later, Black was to write the Court’s decision in Korematsu v. U.S., deferring to the decision of Congress and the President to herd tens of thousands of American citizens of Japanese descent into concentration camps.)
Everyone knew that FDR had been considering constitutional amendments, and that he had the support of strong majorities in Congress. Black, who until recently had been a U.S. Senator closely allied to FDR, was still more of a politician than a jurist. Allies of FDR—such as Black and two of the other justices who joined his opinion—may have wanted to emphasize congressional control over the amendment process.
Such notions of extreme judicial deference to Congress are long gone. I doubt that the Black opinion would garner the support of even one Supreme Court justice today.