The Amending Power of the US Constitution: Proposing and Ratifying Amendments, Exercises of Art

Download The Amending Power of the US Constitution: Proposing and Ratifying Amendments and more Exercises Art in PDF only on Docsity! 937 ARTICLE V MODE OF AMENDMENT CONTENTS Page Amendment of the Constitution ............................................................................................... 939 Scope of the Amending Power ........................................................................................... 939 Proposing a Constitutional Amendment ........................................................................... 940 Proposals by Congress ................................................................................................ 941 The Convention Alternative ....................................................................................... 941 Ratification ................................................................................................................... 942 Authentication and Proclamation .............................................................................. 953 Judicial Review Under Article V ....................................................................................... 953 VerDate Apr 14 2004 08:24 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8221 Sfmt 8221 C:\CONAN\CON016.XXX PRFM99 PsN: CON016 VerDate Apr 14 2004 11:04 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00002 Fmt 8221 Sfmt 8221 C:\CONAN\CON016.XXX PRFM99 PsN: CON016 941ART. V—MODE OF AMENDMENT 11 Id. at 557-558 (Gerry). 12 Id. at 558 (Hamilton). 13 Id. at 559 14 Id. at 629-630. ‘‘Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the State as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum etc. which in Constitutional regulations ought to be as much as possible avoided.’’ 15 1 ANNALS OF CONGRESS 433-436 (1789). 16 Id. at 717. 17 Id. at 430. 18 253 U.S. 350, 386 (1920). 19 Id. 20 Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). the others 11 and some who thought that Congress would be the first to perceive the need for amendment and that to leave the mat- ter to the discretion of the States would mean that no alterations but those increasing the powers of the States would ever be pro- posed. 12 Madison’s proposal was adopted, empowering Congress to propose amendments either on its own initiative or upon applica- tion by the legislatures of two-thirds of the States. 13 When this provision came back from the Committee on Style, however, Gouverneur Morris and Gerry succeeded in inserting the language providing for a convention upon the application of the legislatures of two-thirds of the States. 14 Proposals by Congress.—Few difficulties of a constitutional nature have arisen with regard to this method of initiating con- stitutional change, the only method, as we noted above, so far suc- cessfully resorted to. When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument. 15 Instead, the House decided to propose them as supplementary articles, a method followed since. 16 It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific pro- posals. 17 In the National Prohibition Cases, 18 the Court ruled that in proposing an amendment, the two Houses of Congress thereby indicated that they deemed revision necessary. The same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the Members present—as- suming the presence of a quorum—and not a vote of two-thirds of the entire membership. 19 The approval of the President is not nec- essary for a proposed amendment. 20 The Convention Alternative.—Because it has never success- fully been invoked, the convention method of amendment is sur- VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017 942 ART. V—MODE OF AMENDMENT 21 The matter is treated comprehensively in C. Brickfield, Problems Relating to a Federal Constitutional Convention, 85th Congress, 1st Sess. (Comm. Print; House Judiciary Committee) (1957). A thorough and critical study of activity under the pe- tition method can be found in R. CAPLAN, CONSTITUTIONAL BRINKMANSHIP—AMEND- ING THE CONSTITUTION BY NATIONAL CONVENTION (1988). 22 Id. See also Federal Constitutional Convention: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 90th Congress, 1st Sess. (1967). 23 C. Brickfield, Problems Relating to a Federal Constitutional Convention, 85th Congress, 1st Sess. (Comm. Print; House Judiciary Committee) (1957), 7, 89. 24 Id. at 8-9, 89. 25 R. CAPLAN, CONSTITUTIONAL BRINKMANSHIP—AMENDING THE CONSTITUTION BY NATIONAL CONVENTION 73-78, 78-89 (1988). rounded by a lengthy list of questions. 21 When and how is a con- vention to be convened? Must the applications of the requisite number of States be identical or ask for substantially the same amendment or merely deal with the same subject matter? Must the requisite number of petitions be contemporaneous with each other, substantially contemporaneous, or strung out over several years? Could a convention be limited to consideration of the amendment or the subject matter which it is called to consider? These are only a few of the obvious questions and others lurk to be revealed on deeper consideration. 22 This method has been close to utilization several times. Only one State was lacking when the Senate finally permitted passage of an amendment providing for the direct elec- tion of Senators. 23 Two States were lacking in a petition drive for a constitutional limitation on income tax rates. 24 The drive for an amendment to limit the Supreme Court’s legislative apportionment decisions came within one State of the required number, and a pro- posal for a balanced budget amendment has been but two States short of the requisite number for some time. 25 Arguments existed in each instance against counting all the petitions, but the political realities no doubt are that if there is an authentic national move- ment underlying a petitioning by two-thirds of the States there will be a response by Congress. Ratification.—In 1992, the Nation apparently ratified a long- quiescent 27th Amendment, to the surprise of just about everyone. Whether the new Amendment has any effect in the area of its sub- ject matter, the effective date of congressional pay raises, the adop- tion of this provision has unsettled much of the supposed learning on the issue of the timeliness of pendency of constitutional amend- ments. It has been accepted that Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Begin- ning with the Eighteenth Amendment, save for the Nineteenth, Congress has included language in all proposals stating that the amendment should be inoperative unless ratified within seven VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00004 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017 943ART. V—MODE OF AMENDMENT 26 Seven-year periods were included in the texts of the proposals of the 18th, 20th, 21st, and 22d amendments; apparently concluding in proposing the 23d that putting the time limit in the text merely cluttered up the amendment, Congress in it and subsequent amendments including the time limits in the authorizing resolu- tion. After the extension debate over the Equal Rights proposal, Congress once again inserted into the text of the amendment the time limit with respect to the proposal of voting representation in Congress for the District of Columbia. 27 307 U.S. 433 (1939). 28 256 U.S. 368 (1921). 29 Id. at 374. 30 Id. at 374-375. years. 26 All the earlier proposals had been silent on the question, and two amendments proposed in 1789, one submitted in 1810 and another in 1861, and most recently one in 1924 had gone to the States and had not been ratified. In Coleman v. Miller, 27 the Court refused to pass upon the question whether the proposed child labor amendment, the one submitted to the States in 1924, was open to ratification thirteen years later. This it held to be a political ques- tion which Congress would have to resolve in the event three fourths of the States ever gave their assent to the proposal. In Dillon v. Gloss, 28 the Court upheld Congress’ power to pre- scribe time limitations for state ratifications and intimated that proposals which were clearly out of date were no longer open for ratification. Granting that it found nothing express in Article V re- lating to time constraints, the Court yet allowed that it found inti- mated in the amending process a ‘‘strongly suggest[ive]’’ argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times. 29 Three related considerations were put forward. ‘‘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 States, there is a fair implication that that it must be sufficiently contempora- neous in that number of States to reflect the will of the people in all sections at relatively the same period, which of course ratifica- tion scattered through a long series of years would not do.’’ 30 Continuing, the Court observed that this conclusion was the far better one, because the consequence of the opposite view was that the four amendments proposed long before, including the two sent out to the States in 1789 ‘‘are still pending and in a situation where their ratification in some of the States many years since by VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017 946 ART. V—MODE OF AMENDMENT 40 See Equal Rights Amendment Extension: Hearings Before the Senate Judici- ary Subcommittee on the Constitution, 95th Congress, 2d Sess. (1978); Equal Rights Amendment Extension: Hearings Before the House Judiciary Subcommittee on Civil and Constitutional Rights, 95th Congress, 1st/2d Sess. (1977-78). 41 H.J. Res. 638, 95th Congress, 2d Sess. (1978); 92 Stat. 3799. 42 Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981), prob. juris. noted, 455 U.S. 918 (1982), vacated and remanded to dismiss, 459 U.S. 809 (1982). 43 Nebraska (March 15, 1973), Tennessee (April 23, 1974), and Idaho (February 8, 1977) all passed rescission resolutions without dispute about the actual passage. The Kentucky rescission was attached to another bill and was vetoed by the Lieu- ment with respect to the proposed Equal Rights Amendment. 40 Proponents argued and opponents doubted that the fixing of a time limit and the extending of it were powers committed exclusively to Congress under the political question doctrine and that in any event Congress had power to extend. It was argued that inasmuch as the fixing of a reasonable time was within Congress’ power and that Congress could fix the time either in advance or at some later point, based upon its evaluation of the social and other bases of the necessities of the amendment, Congress did not do violence to the Constitution when, once having fixed the time, it subsequently ex- tended the time. Proponents recognized that if the time limit was fixed in the text of the amendment Congress could not alter it be- cause the time limit as well as the substantive provisions of the proposal had been subject to ratification by a number of States, making it unalterable by Congress except through the amending process again. Opponents argued that Congress, having by a two- thirds vote sent the amendment and its authorizing resolution to the States, had put the matter beyond changing by passage of a simple resolution, that States had either acted upon the entire package or at least that they had or could have acted affirmatively upon the promise of Congress that if the amendment had not been ratified within the prescribed period it would expire and their as- sent would not be compelled for longer than they had intended. Congress did pass a resolution extending by three years the period for ratification. 41 Litigation followed and a federal district court, finding the issue to be justiciable, held that Congress did not have the power to extend, but before the Supreme Court could review the decision the extended time period expired and mooted the matter. 42 Also much disputed during consideration of the proposed Equal Rights Amendment was the question whether once a State had ratified it could thereafter withdraw or rescind its ratification, pre- cluding Congress from counting that State toward completion of ratification. Four States had rescinded their ratifications and a fifth had declared that its ratification would be void unless the amendment was ratified within the original time limit. 43 The issue VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00008 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017 947ART. V—MODE OF AMENDMENT tenant Governor, acting as Governor, citing grounds that included a state constitu- tional provision prohibiting the legislature from passing a law dealing with more than one subject and a senate rule prohibiting the introduction of new bills within the last ten days of a session. Both the resolution and the veto message were sent by the Kentucky Secretary of State to the General Services Administration. South Dakota was the fifth State. 44 14 Stat. 428. 45 The Secretary was then responsible for receiving notices of ratification and proclaiming adoption. 46 15 Stat. 706, 707. 47 15 Stat. 709. 48 307 U.S. 433, 488-450 (1939) (plurality opinion). For an alternative construc- tion of the precedent, see Corwin & Ramsey, The Constitutional Law of Constitu- tional Amendment, 27 NOTRE DAME LAW. 185, 201-204 (1951). The legislature of New York attempted to withdraw its ratification of the 15th Amendment; although the Secretary of State listed New York among the ratifying States, noted the with- drawal resolution, there were ratifications from three-fourths of the States without New York. 16 Stat. 1131. was not without its history. The Fourteenth Amendment was rati- fied by the legislatures of Ohio and New Jersey, both of which sub- sequently passed rescinding resolutions. Contemporaneously, the legislatures of Georgia, North Carolina, and South Carolina re- jected ratification resolutions. Pursuant to the Act of March 2, 1867, 44 the governments of those States were reconstituted and the new legislatures ratified. Thus, there were presented both the question of the validity of a withdrawal and the question of the va- lidity of a ratification following rejection. Congress requested the Secretary of State 45 to report on the number of States ratifying the proposal and the Secretary’s response specifically noted the actions of the Ohio and New Jersey legislatures. The Secretary then issued a proclamation reciting that 29 States, including the two that had rescinded and the three which had ratified after first rejecting, had ratified, which was one more than the necessary three-fourths. He noted the attempted withdrawal of Ohio and New Jersey and ob- served that it was doubtful whether such attempts were effectual in withdrawing consent. 46 He therefore certified the amendment to be in force if the rescissions by Ohio and New Jersey were invalid. The next day Congress adopted a resolution listing all 29 States, including Ohio and New Jersey, as having ratified and concluded that the ratification process was completed. 47 The Secretary of State then proclaimed the Amendment as part of the Constitution. In Coleman v. Miller, 48 the congressional action was inter- preted as going directly to the merits of withdrawal after ratifica- tion and of ratification after rejection. ‘‘Thus, the political depart- ments of the Government dealt with the effect of previous rejection and of attempted withdrawal and determined that both were inef- fectual in the presence of an actual ratification.’’ Although rescis- sion was hotly debated with respect to the Equal Rights Amend- VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017 948 ART. V—MODE OF AMENDMENT 49 F. R. Doc. 92-11951, 57 Fed. Reg. 21187; 138 CONG. REC. (daily ed.) S6948- 49, H3505-06. 50 16 Ops. of the Office of Legal Coun. 102, 125 (1992) (prelim.pr.). 51 Id. at 118-121. 52 Id. at 121-126. ment, the failure of ratification meant that nothing definitive emerged from the debate. The questions that must be resolved are whether the matter is justiciable, that is, whether under the polit- ical question doctrine resolution of the issue is committed exclu- sively to Congress, and whether there is judicial review of what Congress’ power is in respect to deciding the matter of rescission. The Fourteenth Amendment precedent and Coleman v. Miller com- bine to suggest that resolution is a political question committed to Congress, but the issue is not settled. The Twenty-seventh Amendment precedent is relevant here. The Archivist of the United States proclaimed the Amendment as having been ratified a day previous to the time both Houses of Con- gress adopted resolutions accepting ratification. 49 There is no nec- essary conflict, inasmuch as the Archivist and Congress concurred in their actions, but the Office of Legal Counsel of the Department of Justice opined that the Coleman precedent was not binding and that the Fourteenth Amendment action by Congress was an ‘‘aber- ration.’’ 50 That is, the memorandum argued that the Coleman opin- ion by Chief Justice Hughes was for only a plurality of the Court and, moreover, was dictum since it addressed an issue not before the Court. 51 On the merits, OLC argued that Article V gave Con- gress no role other than to propose amendments and to specify the mode of ratification. An amendment is valid when ratified by three- fourths of the States, no further action being required. Although someone must determine when the requisite number have acted, OLC argued that the executive officer charged with the function of certifying, now the Archivist, has only the ministerial duty of counting the notifications sent to him. Separation of powers and federalism concerns also counseled against a congressional role, and past practice, in which all but the Fourteenth Amendment were certified by an executive officer, was noted as supporting a de- cision against a congressional role. 52 What would be the result of adopting one view over the other? First, finding that resolution of the question is committed to Congress merely locates the situs of the power, and says nothing about what the resolution should be. That Congress in the past has refused to accept rescissions is but the starting point, inasmuch as, unlike courts, Congress operates under no principle of stare deci- sis so that the decisions of one Congress on a subject do not bind VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00010 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017 951ART. V—MODE OF AMENDMENT 60 Id. at 375-376. It should be noted that the Court seemed to retain the power for itself to pass on the congressional decision, saying ‘‘[o]f the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we en- tertain no doubt’’ and noting later than no question existed that the seven-year pe- riod was reasonable. Id. 61 307 U.S. 433, 452-454 (1939) (plurality opinion). It is, as noted above, not en- tirely clear to what extent the Hughes plurality exempted from judicial review con- gressional determinations made in the amending process. Justice Black’s concur- rence thought the Court ‘‘treated the amending process of the Constitution in some respects as subject to judicial review, in others as subject to the final authority of Congress’’ and urged that the Dillon v. Gloss ‘‘reasonable time’’ construction be dis- approved. Id. at 456, 458. contemporaneous’’ in the requisite number of States ‘‘to reflect the will of the people in all sections at relatively the same period,’’ it would raise a large question were the ratification process to count one or more States which were acting to withdraw their expression of judgment that amendment was necessary at the same time other States were acting affirmatively. The ‘‘decisive expression of the people’s will’’ that is to bind all might well in those or similar cir- cumstances be found lacking. Employment of this analysis would not necessarily lead in specific circumstances to failures of ratifica- tion; the particular facts surrounding the passage of rescission res- olutions, for example, might lead Congress to conclude that the req- uisite ‘‘contemporaneous’’ ‘‘expression of the people’s will’’ was not undermined by the action. And employment of this analysis would still seem, under these precedents, to leave to Congress the crucial determination of the success or failure of ratification. At the same time it was positing this analysis in the context of passing on the question of Congress’ power to fix a time limit, the Court in Dillon v. Gloss observed that Article V left to Congress the authority ‘‘to deal with subsidiary matters of detail as the public interest and changing conditions may require.’’ 60 And in Coleman v. Miller, Chief Justice Hughes went further in respect to these ‘‘matters of detail’’ being ‘‘within the congressional province’’ in the resolution of which the decision by Congress ‘‘would not be subject to review by the courts.’’ 61 Thus, it may be that if the Dillon v. Gloss construction is found persuasive, Congress would have constitutional standards to guide its decision on the validity of rescission. At the same time, if these precedents reviewed above are adhered to, and strictly applied, it appears that the congressional determination to permit or to dis- allow rescission would not be subject to judicial review. Adoption of the alternative view, that Congress has no role but that the appropriate executive official has the sole responsibility, would entail different consequences. That official, now the Archi- vist, appears to have no discretion but to certify once he receives VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00013 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017 952 ART. V—MODE OF AMENDMENT 62 United States ex rel. Widenmann v. Colby, 265 F. 998, 999 (D.C. Cir. 1920), aff’d mem. 257 U.S. 619 (1921); United States v. Sitka, 666 F. Supp. 19, 22 (D. Conn. 1987), aff’d, 845 F.2d 43 (2d Cir.), cert. den., 488 U.S. 827 (1988). See 96 CONG. REC. 3250 (Message from President Truman accompanying Reorg. Plan No. 20 of 1950); 16 Ops. of the Office of Legal Coun. 102, 117 (1992) (prelim.pr.). 63 Id. at 116-118. Thus, OLC says that the statute ‘‘clearly requires that, before performing this ministerial function, the Archivist must determine whether he has received ‘official notice’ that an amendment has been adopted ‘according to the pro- visions of the Constitution.’ This is the question of law that the Archivist may prop- erly submit to the Attorney General for resolution.’’ Id. at 118. But if his duty is ‘‘ministerial,’’ it seems, the Archivist may only notice the fact of receipt of a state resolution; if he may, in consultation with the Attorney General, determine whether the resolution is valid, that is considerably more than a ‘‘ministerial’’ function. 64 Under the Administrative Procedure Act, doubtless, 5 U.S.C. §§ 701-706, though there may well be questions about one possible exception, the ‘‘committed to agency discretion’’ provision. Id. at § 701(a) (2). 65 282 U.S. 716 (1931). 66 Hawke v. Smith, 253 U.S. 221, 231 (1920). state notification. 62 The official could, of course, request a Depart- ment of Justice legal opinion on some issue, such as the validity of rescissions. That is the course advocated by the executive branch, naturally, but it is one a little difficult to square with the ministerial responsibility of the Archivist. 63 In any event, there would seem to be no support for a political question preclusion of judicial review under these circumstances. Whether the Archivist certifies on the mere receipt of a ratification resolution or does so only after ascertaining the resolution’s validity, it would appear that it is action subject to judicial review. 64 Congress has complete freedom of choice between the two methods of ratification recognized by Article V: by the legislatures of the States or by conventions in the States. In United States v. Sprague, 65 counsel advanced the contention that the Tenth Amend- ment recognized a distinction between powers reserved to the States and powers reserved to the people, and that state legisla- tures 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 Amend- ment being of the latter character, the ratification by state legisla- tures, so the argument ran, was invalid. The Supreme Court re- jected the argument. It found the language of Article V too clear to admit of reading any exception into it by implication. The term ‘‘legislatures’’ as used in Article V means delibera- tive, 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. A State may not validly condition ratification of a proposed constitutional amendment on its approval by such a referendum. 66 In the words of the Court: ‘‘[T]he VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00014 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017 953ART. V—MODE OF AMENDMENT 67 Leser v. Garnett, 258 U.S. 130, 137 (1922). 68 Act of April 20, 1818, § 2, 3 Stat. 439. The language quoted in the text is from Leser v. Garnett, 258 U.S. 130, 137 (1922). 69 65 Stat. 710-711, § 2; Reorg. Plan No. 20 of 1950, § 1(c), 64 Stat. 1272. 70 National Archives and Records Administration Act of 1984, 98 Stat. 2291, 1 U.S.C. § 106b. 71 256 U.S. 368, 376 (1921). 72 Leser v. Garnett, 258 U.S. 130 (1922). 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. function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in pro- posing the amendment, is a federal function derived from the Fed- eral Constitution; and it transcends any limitations sought to be imposed by the people of a State.’’ 67 Authentication and Proclamation.—Formerly, official no- tice 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] conclu- sive upon the courts’’ as against any objection which might be sub- sequently raised as to the regularity of the legislative procedure by which ratification was brought about. 68 This function of the Sec- retary was first transferred to a functionary called the Adminis- trator of General Services, 69 and then to the Archivist of the United States. 70 In Dillon v. Gloss, 71 the Supreme Court held that the Eighteenth Amendment became operative on the date of ratifi- cation 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 Archivist. 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 ques- tions 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 Kan- sas to review the denial of a writ of mandamus to compel the Sec- retary of the Kansas Senate to erase an endorsement on a resolu- tion ratifying the proposed child labor amendment to the Constitu- tion to the effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds: (1) that VerDate Apr<14>2004 09:07 Apr 15, 2004 Jkt 077500 PO 00000 Frm 00015 Fmt 8222 Sfmt 8222 C:\CONAN\CON017.SGM PRFM99 PsN: CON017