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Sunday, December 27, 2020

Robert Jackson on Article Five

After reading Robert Jackson's brief in Currin v. Wallace, I decided to read through some of his other briefs as Solicitor General. He was only in that position for two years, and the United States did not, of course, file a brief in every case. As far as I can tell, the only other case where a Jackson brief would be of interest to modern lawyers is Coleman v. Miller, which concerns the Article Five ratification process.

I've written an article about the proposed Equal Rights Amendment to the Constitution. One issue with the ERA is the relationship (if any) between a time limit for ratification and the possibility that a state can rescind a ratification of a constitutional amendment. In my article, I argued that states should have that power (or that only a two-thirds vote of each House of Congress can set aside a rescission). This is especially true, I thought, if Congress can extend or waive a ratification time limit that is not in the text of the proposed amendment itself.

Here's what Jackson's amicus brief says about this in Coleman after he cites Dillon v. Gloss:

That case sustained the power of Congress to fix a time limit of seven years for the adoption of the Eighteenth Amendment. It was unnecessary in that case to consider whether a proposed amendment would expire with the passage of time in the absence of such a provision, and still less to consider whether the courts could be required to decide that a proposed amendment had in fact expired. It is true that the opinion in the ease expressed the view that an amendment cannot pend indefinitely, but nothing was said concerning the authority which would be empowered to declare that the end had come. The answer to the latter question may well turn on the answer to another: whether States which have once ratified may thereafter revoke or rescind their ratification. If they can, the danger that a few States may supplement prior ratifications of an outdated proposed amendment is largely obviated; the States that have ratified can protect themselves by rescinding. The power of the States so to do has not been judicially determined. Unless and until the power is held not to exist, much of the force is taken from the position that the courts may be required to decide whether a proposed amendment has lapsed. It is perhaps enough to say that distinguished authority can be found for the view that, until an amendment has been adopted by the ratifications of three-fourths of the States, the States do have power to rescind their ratifications. [footnote omitted]

This passage is interesting for two reasons. First, Jackson took the view that states could rescind their Article Five ratifications, which is a hotly contested question. (If states can do so, then the ERA has not reached the three-quarters necessary for ratification). Second, he says that if states can rescind, then an indefinite time limit for ratification is not a problem. States can rescind their ratifications from long ago if they feel that was the wrong position to take.

I also just love the following passage in the brief for its prose style:

The second major question presented is whether the Child Labor Amendment was no longer susceptible of ratification because of the interval of time, 12 years and 7 months in the case of Kentucky and 12 years and 8 months in the case of Kansas, elapsing between submission to the States and these ratifications. The argument is, in effect, that a conclusive presumption of death arises upon the passage of such a period, a presumption akin to that arising from seven years' unexplained absence without being heard from. But the Child Labor Amendment has been heard from incessantly. If mortality is an attribute of proposed amendments, it is clear with respect to the Child Labor Amendment that death could not have been caused by atrophy, but only by activity; and that, it is submitted, is not a basis for establishing the legal death of an amendment.

Posted by Gerard Magliocca on December 27, 2020 at 10:21 AM | Permalink


I commend the reference to the Bill Murray movie but the second idea is more entry appropriate.

Posted by: Joe | Dec 28, 2020 12:16:50 PM

@tgd: How about “The Jackson Five”?

Posted by: hardreaders | Dec 27, 2020 9:49:56 PM

You should title your article "What about Bob"

Posted by: thegreatdisappointment | Dec 27, 2020 3:30:09 PM

When another blog allowed comments, a lot of verbiage was spent in comments on the "rules" for ratification in response to the author's musings.

History and so forth to me does not give states the power to rescind. The supermajority rule to change a deadline/override recission also to me seems merely a matter of good practice at best. The whole thing appears to be a political question at any rate as well as at this moment rather academic.

Which is the point of this blog, so fine enough.

Posted by: Joe | Dec 27, 2020 3:23:42 PM

Interesting case or issue. Just worth to note, that in the case of Coleman v. Miller the corp of the issue, was bit different. And it was indeed, whether time that has elapsed (or rather how much time) prevents the moving forward with the amendment. In accordance, who would decide here. According to the court, only the Congress. The latter has total power in this regard. The question can't be decided by court. It is a pure political question.

I quote Justice Black (concurring):

Since Congress has sole and complete control over the amending process, subject to no judicial review, the views of any court upon this process cannot be binding upon Congress, and insofar as Dillon v. Gloss attempts judicially to impose a limitation upon the right of Congress to determine final adoption of an amendment, it should be disapproved. If Congressional determination that an amendment has been completed and become a part of the Constitution is final and removed from examination by the courts, as the Court's present opinion recognizes, surely the steps leading to that condition must be subject to the scrutiny, control and appraisal of none save the Congress, the body having exclusive power to make that final determination.

End of quotation:

Just also worth to note, that in that case, there was a claim that the governor of Kansas couldn't break tie of 20 v. 20 and cast vote here. I quote(from the Syllabus):

"The court being equally divided in opinion as to whether the question presents a justiciable controversy, or is a political question , expresses no opinion upon a contention that the Lieutenant Governor of Kansas was not a part of the "legislature" and under Article V of the Federal Constitution could not be permitted a deciding vote on the ratification of the proposed amendment"

Here to the ruling:



Posted by: El roam | Dec 27, 2020 11:59:39 AM

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