307 U.S. 433 (1939)
In June 1924, the Congress proposed an amendment to the Constitution known as the Child Labor Amendment.1 In January 1925, the Legislature of Kansas adopted a resolution rejecting the proposed amendment and a certified copy of the resolution was sent to the Secretary of State of the United States.2 The rejection in the Senate was by a vote of 21 to 20.3 The rejection in the House was by a vote of 61 to 28.4
In January 1937, at a special session called by the Governor, a resolution known as Senate Concurrent Resolution No. 3 was introduced in the Senate of Kansas ratifying the proposed amendment.5 There were forty senators.6 When the resolution came up for consideration, twenty senators voted in favor of its adoption and twenty voted against it.7 The Lieutenant Governor, the presiding officer of the Senate, then cast his vote in favor of the resolution.8 The resolution was later adopted by the House of Representatives on the vote of a majority of its members, specifically 58 to 40.9
This original proceeding in mandamus was then brought in the Supreme Court of Kansas by twenty-one members of the Senate, including the twenty senators who had voted against the resolution, and three members of the House of Representatives, together with a citizen and taxpayer of the state.10 The plaintiffs sought to compel the Secretary of the Senate to erase an endorsement on the resolution to the effect that it had been adopted by the Senate and to endorse thereon the words "was not passed."11 They also sought to restrain the officers of the Senate and House of Representatives from signing the resolution and the Secretary of State of Kansas from authenticating it and delivering it to the Governor.12
The petition challenged the right of the Lieutenant Governor to cast the deciding vote in the Senate.13 The petition also set forth the prior rejection of the proposed amendment.14 It alleged that in the period from June 1924 to March 1927 the amendment had been rejected by both houses of the legislatures of twenty-six States and had been ratified in only five States.15 It further alleged that by reason of that rejection and the failure of ratification within a reasonable time the proposed amendment had lost its vitality.16 The Supreme Court of Kansas entertained the action and held that the Lieutenant Governor was authorized to cast the deciding vote.1718 The court also held that the proposed amendment retained its original vitality.19 It concluded that the resolution having duly passed the house of representatives and the senate, the act of ratification of the proposed amendment by the legislature of Kansas was final and complete.20 The writ of mandamus was accordingly denied.21
The defendants other than the secretary of the senate took an appeal from the judgment of the state court.22 The secretary of the senate took a cross-appeal from that part of the judgment which directed him to erase from the resolution of ratification the endorsement showing that it was adopted by the casting vote of the lieutenant governor.23 This Court granted certiorari.24
Whether twenty-one members of the Kansas Legislature who voted against ratification of the proposed Child Labor Amendment, together with a citizen and taxpayer, have standing to maintain an action challenging the validity of the ratification?25
Members of the Legislature who voted against ratification have a plain, direct and adequate interest in maintaining the effectiveness of their votes and may maintain this action.26
Yes. The twenty senators who voted against ratification in January 1937 had their votes overridden by the Lieutenant Governor's tie-breaking vote.27 Their votes would have defeated ratification if their contentions on prior rejection and lapse of time were correct.28 The citizen and taxpayer shares an interest in the integrity of the lawmaking process.29 The Supreme Court of Kansas entertained the action on this basis.30 This Court granted certiorari after the state court denied mandamus.31
The plaintiffs have a sufficient interest to maintain the suit.32
Related opinions on this issue
Joined by Justice Roberts, Justice Black, Justice Douglas
Justice Frankfurter concluded that the Kansas legislators lack standing because their claims present only undifferentiated general interests shared by all citizens concerning whether the amendment remained alive or whether Kansas could still ratify.33 These objections do not relate to any secular interest that pertains to these Kansas legislators apart from interests that belong to the entire commonalty of Kansas.34 The fact that these legislators are part of the ratifying mechanism while the ordinary citizen of Kansas is not is wholly irrelevant to this issue.35
On this aspect of the case the problem would be exactly the same if all but one legislator had voted for ratification.36 Indeed the claim that the Amendment was dead or that it was no longer open to Kansas to ratify is not only not an interest which belongs uniquely to these Kansas legislators.37 It is not even an interest special to Kansas.38 For it is the common concern of every citizen of the United States whether the Amendment is still alive, or whether Kansas could be included among the necessary three-fourths of the several States.39
These legislators have no more standing on these claims of unconstitutionality to attack Senate Concurrent Resolution No. 3 than they would have standing here to attack some Kansas statute claimed by them to offend the Commerce Clause.40
Whether the action brought in the Supreme Court of Kansas constitutes a suit against the United States?41
A suit against state officers to compel performance of duties under state law is not a suit against the United States even if certification of ratification to the federal Secretary of State may result.42
No. The defendants are Kansas state officers.43 The suit seeks to compel them to perform duties under Kansas law by erasing the ratification endorsement and restraining certification.44 The possibility that those officers may certify the ratification to the Secretary of State of the United States does not convert the action into one against the United States.45
The action is not a suit against the United States.46
Whether the question of how long a proposed amendment to the Federal Constitution remains open to ratification is a justiciable question?47
The question whether a proposed amendment has lost its vitality through lapse of time is a political question for Congress to determine with finality.48
No. The Child Labor Amendment was proposed in June 1924.49 Kansas ratified in January 1937 after nearly thirteen years with no time limit fixed by Congress.50 The Court held that criteria for reasonableness involve political, social and economic conditions.51 These conditions are appropriate for the political departments and not for judicial determination.52 Congress alone controls promulgation.53 Its decision on whether the amendment remained open is final.54
Related opinions on this issue
Joined by Justice Roberts, Justice Frankfurter, Justice Douglas
Justice Black concluded that the entire amending process from submission to final adoption is political in nature and subject to undivided congressional control with no room for judicial review or pronouncements at any point including on reasonable time for ratification.57 The Constitution grants Congress exclusive power to control submission of constitutional amendments.58 Final determination by Congress that ratification by three-fourths of the States has taken place is conclusive upon the courts.59
In the exercise of that power, Congress, of course, is governed by the Constitution.60 However, whether submission, intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution, calls for decisions by a political department of questions of a type which this Court has frequently designated political.61 And decision of a political question by the political department to which the Constitution has committed it conclusively binds the judges, as well as all other officers, citizens and subjects of government.62
Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands.63 Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation.64
Joined by Justice Mcreynolds
Justice Butler concluded that the question whether more than a reasonable time had elapsed is justiciable and that under the reasoning of Dillon v. Gloss more than thirteen years between proposal and the Kansas ratification was unreasonable so that the judgment of the Kansas court should be reversed.65 In Dillon v. Gloss, one imprisoned for transportation of intoxicating liquor in violation of section 3 of the National Prohibition Act, instituted habeas corpus proceedings to obtain his release on the ground that the Eighteenth Amendment was invalid because the resolution proposing it declared that it should not be operative unless ratified within seven years.66 The Amendment was ratified in less than a year and a half.67
We definitely held that Article V impliedly requires amendments submitted to be ratified within a reasonable time after proposal; that Congress may fix a reasonable time for ratification, and that the period of seven years fixed by the Congress was reasonable.68 Upon the reasoning of our opinion in that case, I would hold that more than a reasonable time had elapsed and that the judgment of the Kansas supreme court should be reversed.69
Whether the question of the effect of a prior rejection by a state legislature on a subsequent ratification of a proposed constitutional amendment is a justiciable question?70
The question of the effect of a prior rejection of a proposed amendment is a political question for Congress to determine with finality.71
No. Kansas rejected the amendment in January 1925 by votes of 21 to 20 in the Senate and 61 to 28 in the House and then ratified in January 1937.72 The Court held that Article V speaks only of ratification and contains no provision as to rejection.73 Historical precedent from the Fourteenth Amendment shows that the political departments treated prior rejection as ineffectual once actual ratification occurred and that determination is final.74
The question is a political question not justiciable by the courts.
Related opinions on this issue
Joined by Justice Roberts, Justice Frankfurter, Justice Douglas
Justice Black concluded that questions whether a state may reverse its action once taken upon a proposed amendment are political questions entrusted solely to Congress and judicial review would subject the amending process to improper judicial interference.75 The state court below assumed jurisdiction to determine whether the proper procedure is being followed between submission and final adoption.76 However, it is apparent that judicial review of or pronouncements upon a supposed limitation of a reasonable time within which Congress may accept ratification, as to whether duly authorized state officials have proceeded properly in ratifying or voting for ratification, or whether a State may reverse its action once taken upon a proposed amendment, and kindred questions, are all consistent only with an ultimate control over the amending process in the courts.77
And this must inevitably embarrass the course of amendment by subjecting to judicial interference matters that we believe were intrusted by the Constitution solely to the political branch of government.78 The Court here treats the amending process of the Constitution in some respects as subject to judicial construction, in others as subject to the final authority of the Congress.79 There is no disapproval of the conclusion arrived at in Dillon v. Gloss, that the Constitution impliedly requires that a properly submitted amendment must die unless ratified within a reasonable time.80
Nor does the Court now disapprove its prior assumption of power to make such a pronouncement.81
Joined by Justice Mcreynolds
Justice Butler concluded that the question whether a proposed amendment has been ratified by the requisite number of states is justiciable and that the prior rejection by Kansas was final so that the 1937 ratification was without effect.82 The Child Labor Amendment was proposed in 1924.83 More than 13 years elapsed before the Kansas legislature voted, as the decision just announced holds, to ratify it.84 Petitioners insist that more than a reasonable time had elapsed and that, therefore, the action of the state legislature is without force.85
But this Court now holds that the question is not justiciable, relegates it to the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States the time arrives for the promulgation of the adoption of the amendment and declares that the decision by Congress would not be subject to review by the courts.86 In my opinion the questions presented are justiciable, and the ratification of the proposed amendment by the legislature of Kansas was ineffective.87 The proposed Child Labor Amendment was submitted to the states in 1924.88
It was rejected by the legislature of Kansas in 1925.89 The rejection was final.90 The legislature of Kansas had no power to ratify the amendment after having rejected it.91 The ratification by the legislature of Kansas in 1937 was without effect.92
Whether the Lieutenant Governor of Kansas was authorized by the state constitution to cast the deciding vote in favor of ratification of the proposed amendment?93
Whether the Lieutenant Governor was authorized to cast the deciding vote is a question of state law on which the decision of the Supreme Court of Kansas is binding.94
Yes. In the January 1937 Senate vote the resolution received twenty votes in favor and twenty against.95 The Lieutenant Governor as presiding officer cast the deciding vote in favor.96 The Supreme Court of Kansas held that the state constitution authorized the Lieutenant Governor to cast that vote.97 This Court accepted the state court's determination of state law.98
The Lieutenant Governor was authorized to cast the deciding vote.