Coleman v. Miller/Opinion of the Court

by Charles Evans Hughes

United States Supreme Court

307 U.S. 433

Coleman  v.  Miller

 Argued: April 17, 18, 1939. --- Decided: June 5, 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. In January, 1937, a resolution known as 'Senate Concurrent Resolution No. 3' was introduced in the Senate of Kansas ratifying the proposed amendment. There were forty senators. When the resolution came up for consideration, twenty senators voted in favor of its adoption and twenty voted against it. The Lieutenant Governor, the presiding officer of the Senate, then cast his vote in favor of the resolution. The resolution was later adopted by the House of Representatives on the vote of a majority of its members.

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, 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', and 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. The petition challenged the right of the Lieutenant Governor to cast the deciding vote in the Senate. The petition also set forth the prior rejection of the proposed amendment and 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, and that by reason of that rejection and the failure of ratification within a reasonable time the proposed amendment had lost its vitality.

An alternative writ was issued. Later the Senate passed a resolution directing the Attorney General to enter the appearance of the State and to represent the State as its interests might appear. Answers were filed on behalf of the defendants other than the State and plaintiffs made their reply.

The Supreme Court found no dispute as to the facts. The court entertained the action and held that the Lieutenant Governor was authorized to cast the deciding vote, that the proposed amendment retained its original vitality, and 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'. The writ of mandamus was accordingly denied. 146 Kan. 390, 71 P.2d 518, 526. This Court granted certiorari. 303 U.S. 632, 58 S.Ct. 758, 82 L.Ed. 1092.

First.-The jurisdiction of this Court.-Our authority to issue the writ of certiorari is challenged upon the ground that petitioners have no standing to seek to have the judgment of the state court reviewed, and hence it is urged that the writ of certiorari should be dismissed. We are unable to accept that view.

The state court held that it had jurisdiction; that 'the right of the parties to maintain the action is beyond question'. ^[2] The state court thus determined in substance that members of the legislature had standing to seek, and the court had jurisdiction to grant, mandamus to compel a proper record of legislative action. Had the questions been solely state questions, the matter would have ended there. But the questions raised in the instant case arose under the Federal Constitution and these questions were entertained and decided by the state court. They arose under Article V of the Constitution, U.S.C.A., which alone conferred the power to amend and determined the manner in which that power could be exercised. Hawke v. Smith (No. 1), 253 U.S. 221, 227, 40 S.Ct. 495, 497, 64 L.Ed. 871, 10 A.L.R. 1504; Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 66 L.Ed. 505. Whether any or all of the questions thus raised and decided are deemed to be justiciable or political, they are exclusively federal questions and not state questions.

We find the cases cited in support of the contention, that petitioners lack an adequate interest to invoke our jurisdiction to review, to be inapplicable. ^[3] Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. Petitioners come directly within the provisions of the statute governing our appellate jurisdiction. They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect and the state court has denied that right and privilege. As the validity of a state statute was not assailed, the remedy by appeal was not available, Jud.Code, Sec. 237(a), 28 U.S.C. § 344(a), 28 U.S.C.A. § 344(a), and the appropriate remedy was by writ of certiorari which we granted. Jud.Code, Sec. 237(b), 28 U.S.C. § 344(b), 28 U.S.C.A. § 344(b).

The contention to the contrary is answered by our decisions in Hawke v. Smith, supra, and Leser v. Garnett, supra. In Hawke v. Smith, supra, the plaintiff in error, suing as a 'citizen and elector of the State of Ohio, and as a taxpayer and elector of the County of Hamilton', on behalf of himself and others similarly situated, filed a petition for an injunction in the state court to restrain the Secretary of State from spending the public money in preparing and printing ballots for submission of a referendum to the electors on the question of the ratification of the Eighteenth Amendment to the Federal Constitution, U.S.C.A. A demurrer to the petition was sustained in the lower court and its judgment was affirmed by the intermediate appellate court and the Supreme Court of the State. This Court entertained jurisdiction and, holding that the state court had erred in deciding that the State had authority to require the submission of the ratification to a referendum, reversed the judgment.

In Leser v. Garnett, supra, qualified voters in the State of Maryland brought suit in the state court to have the names of certain women stricken from the list of qualified voters on the ground that the constitution of Maryland limited suffrage to men and that the Nineteenth Amendment to the Federal Constitution, U.S.C.A. has not been validly ratified. The state court took jurisdiction and the Court of Appeals of the State affirmed the judgment dismissing the petition. We granted certiorari. On the question of our jurisdiction we said:

'The petitioners contended, on several grounds, that the amendment had not become part of the federal Constitution. The trial court overruled the contentions and dismissed the petition. Its judgment was affirmed by the Court of Appeals of the state (Md.) (139 Md. 46) 114 A. 840; and the case comes here on writ of error. That writ must be dismissed; but the petition for a writ of certiorari, also duly filed, is granted. The laws of Maryland authorized such a suit by a qualified voter against the board of registry. Whether the Nineteenth Amendment has be come part of the federal Constitution is the question presented for decision'.

And holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court.

That the question of our jurisdiction in Leser v. Garnett, supra, was decided upon deliberate consideration is sufficiently shown by the fact that there was a motion to dismiss the writ of error for the want of jurisdiction and opposition to the grant of certiorari. The decision is the more striking because on the same day, in an opinion immediately preceding which was prepared for the Court by the same Justice, ^[4] jurisdiction had been denied to a federal court (the Supreme Court of the District of Columbia) of a suit by citizens of the United States, taxpayers and members of a voluntary association organized to support the Constitution, in which it was sought to have the Nineteenth Amendment declared unconstitutional and to enjoin the Secretary of State from proclaiming its ratification and the Attorney General from taking steps to enforce it. Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 275, 66 L.Ed. 499. The Court held that the plaintiffs' alleged interest in the question submitted was not such as to afford a basis for the proceeding; that the plaintiffs had only the right possessed by every citizen 'to require that the government be administered according to law and that the public moneys be not wasted' and that this general right did not entitle a private citizen to bring such a suit as the one in question in the federal courts. ^[5] It would be difficult to imagine a situation in which the adequacy of the petitioners' interest to invoke our appellate jurisdiction in Leser v. Garnett, supra, could have been more sharply presented.

The effort to distinguish that case on the ground that the plaintiffs were qualified voters in Maryland, and hence could complain of the admission to the registry of those alleged not to be qualified, is futile. The interest of the plaintiffs in Leser v. Garnett, supra, as merely qualified voters at general elections is certainly much less impressive than the interest of the twenty senators in the instant case. This is not a mere intra-parliamentary controversy but the question relates to legislative action deriving its force solely from the provisions of the Federal Constitution, and the twenty senators were not only qualified to vote on the question of ratification but their votes, if the Lieutenant Governor were excluded as not being a part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution.

We are of the opinion that Hawke v. Smith and Leser v. Garnett, supra, are controlling authorities, but in view of the wide range the discussion has taken we may refer to some other instances in which the question of what constitutes a sufficient interest to enable one to invoke our appellate jurisdiction has been involved. The principle that the applicant must show a legal interest in the controversy has been maintained. It has been applied repeatedly in cases where municipal corporations have challenged state legislation affecting their alleged rights and obligations. Being but creatures of the State, municipal corporations have no standing to invoke the contract clause or the provisions of the Fourteenth Amendment of the Constitution in opposition to the will of their creator. ^[6] But there has been recognition of the legitimate interest public officials and administrative commissions, federal and state, to resist the endeavor to prevent the enforcement of statutes in relation to which they have official duties. Under the Urgent Deficiencies Act, ^[7] the Interstate Commerce Commission, and commissions representing interested States which have intervened, are entitled as 'aggrieved parties' to an appeal to this Court from a decree setting aside an order of the Interstate Commerce Commission, though the United States refuses to join in the appeal. Interstate Commerce Commission v. Oregon-Washington R. & N. Co., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588. So, this Court may grant certiorari, on the application of the Federal Trade Commission, to review decisions setting aside its orders. ^[8] Federal Trade Commission v. Curtis Publishing Company, 260 U.S. 568, 43 S.Ct. 210, 67 L.Ed. 408. Analogous provisions authorize certiorari to review decisions against the National Labor Relations Board. ^[9] National Labor Relations Board v. Jones & Laughlin Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. Under Section 266 of the Judicial Code, 28 U.S.C. § 380, 28 U.S.C. § 380, where an injunction is sought to restrain the enforcement of a statute of a State or an order of its administrative board or commission, upon the ground of invalidity under the Federal Constitution, the right of direct appeal to this Court from the decree of the required three judges is accorded whether the injunction be granted or denied. Hence, in case the injunction is granted, the state board is entitled to appeal. See, for example, South Carolina Highway Department v. Barnwell Brothers, 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734.

The question of our authority to grant certiorari, on the application of state officers, to review decisions of state courts declaring state statutes, which these officers seek to enforce, to be repugnant to the Federal Constitution, has been carefully considered and our jurisdiction in that class of cases has been sustained. The original Judiciary Act of 1789 provided in Section 25 ^[10] for the review by this Court of a judgment of a state court 'where is drawn in question the validity * * * of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity'; that is, where the claim of federal right had been denied. By the Act of December 23, 1914, ^[11] it was provided that this Court may review on certiorari decisions of state courts sustaining a federal right. The present statute governing our jurisdiction on certiorari contains the corresponding provision that this Court may exercise that jurisdiction 'as well where the Federal claim is sustained as where it is denied'. Jud.Code, Section 7(b), 28 U.S.C. § 344(b), 28 U.S.C.A. § 344(b). The plain purpose was to provide an opportunity, deemed to be important and appropriate, for the review of the decisions of state courts on constitutional questions however the state court might decide them. Accordingly where the claim of a complainant that a state officer be restrained from enforcing a state statute because of constitutional invalidity is sustained by the state court, the statute enables the state officer to seek a reversal by this Court of that decision.

In Blodgett v. Silberman, 277 U.S. 1, 7, 48 S.Ct. 410, 412, 72 L.Ed. 749, the Court granted certiorari on the application of the State Tax Commissioner of Connecticut who sought review of the decision of the Supreme Court of Errors of the State so far as it denied the right created by its statute to tax the transfer of certain securities, which had been placed for safekeeping in New York, on the ground that they were not within the taxing jurisdiction of Connecticut. Entertaining jurisdiction, this Court reversed the judgment in that respect. Id., 277 U.S. at page 18, 48 S.Ct. at page 416, 72 L.Ed. 749.

The question received most careful consideration in the case of Boynton, Attorney General, v. Hutchinson Gas Company, 291 U.S. 656, 54 S.Ct. 457, 78 L.Ed. 1048, where the Supreme Court of Kansas had held a state statute to be repugnant to the Federal Constitution, and the Attorney General of the State applied for certiorari. His application was opposed upon the ground that he had merely an official interest in the controversy and the decisions were invoked upon which the Government relies in challenging our jurisdiction in the instant case. ^[12] Because of its importance, and contrary to our usual practice, the Court directed oral argument on the question whether certiorari should be granted and after that argument, upon mature deliberation, granted the writ. The writ was subsequently dismissed but only because of a failure of the record to show service of summons and severance upon the appellees in the state court who were not parties to the proceedings here. Boynton v. Hutchinson Gas Co., 292 U.S. 601, 54 S.Ct. 639, 78 L.Ed. 1464. This decision with respect to the scope of our jurisdiction has been followed in later cases. In Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 56 S.Ct. 918, 80 L.Ed. 1347, 103 A.L.R. 1445, we granted certiorari on an application by the warden of a city prison to review the decision of the Court of Appeals of the State on habeas corpus, ruling that the minimum wage law of the State violated the Federal Constitution. This Court decided the case on the merits. In Kelly v. Washington ex rel. Foss Company, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3, we granted certiorari, on the application of the state authorities charged with the enforcement of the state law relating to the inspection and regulation of vessels, to review the decision of the state court holding the statute invalid in its application to navigable waters. We concluded that the state act had a permissible field of operation and the decision of the state court in holding the statute completely unenforceable in deference to federal law was reversed.

This class of cases in which we have exercised our appellate jurisdiction on the application of state officers may be said to recognize that they have an equate interest in the controversy by reason of their duty to enforce the state statutes the validity of which has been drawn in question. In none of these cases could it be said that the state officers invoking our jurisdiction were sustaining any 'private damage'.

While one who asserts the mere right of a citizen and taxpayer of the United States to complain of the alleged invalid outlay of public moneys has no standing to invoke the jurisdiction of the federal courts (Frothingham v. Mellon, 262 U.S. 447, 480, 486, 487, 43 S.Ct. 597, 598, 600, 67 L.Ed. 1078), the Court has sustained the more immediate and substantial right of a resident taxpayer to invoke the interposition of a court of equity to enjoin an illegal use of moneys by a municipal corporation. Crampton v. Zabriskie, 101 U.S. 601, 609, 25 L.Ed. 1070; Frothingham v. Mellon, supra. In Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206, Ann.Cas.1917B, 287, we took jurisdiction on a writ of error sued out by a property owner and taxpayer, who had been given standing in the state court, for the purpose of reviewing its decision sustaining the validity under the Federal Constitution of a state statute as applied to contracts for the construction of public works in the City of New York, the enforcement of which was alleged to involve irreparable loss to the city and hence to be inimical to the interests of the taxpayer.

In Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795, we granted certiorari on the application of one who was an 'elector', as well as a 'citizen' and 'taxpayer', and who assailed under the Federal Constitution a state statute establishing congressional districts. Passing upon the merits we held that the function of a state legislature in prescribing the time, place and manner of holding elections for representatives in Congress under Article I, Section 4, U.S.C.A.Const., was a law-making function in which the veto power of the state governor participates, if under the state constitution the governor has that power in the course of the making of state laws, and accordingly reversed the judgment of the state court. We took jurisdiction on certiorari in a similar case from New York where the petitioners were 'citizens and voters of the State' who had sought a mandamus to compel the Secretary of State of New York to certify that representatives in Congress were to be elected in the congressional districts as defined by a concurrent resolution of the Senate and Assembly of the legislature. There the state court, construing the provision of the Federal Constitution as contemplating the exercise of the law-making power, had sustained the defense that the concurrent resolution was ineffective as it had not been submitted to the Governor for approval, and refused the writ of mandamus. We affirmed the judgment. Koenig v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805.

In the light of this course of decisions, we find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision.

Second.-The participation of the Lieutenant Governor. Petitioners contend at, in the light of the powers and duties of the Lieutenant Governor and his relation to the Senate under the state constitution, as construed by the supreme court of the state, the Lieutenant Governor was not a part of the 'legislature' so that under Article V of the Federal Constitution, he could be permitted to have a deciding vote on the ratification of the proposed amendment, when the senate was equally divided.

Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.

Third.-The effect of the previous rejection of the amendment and of the lapse of time since its submission.

1. The state court adopted the view expressed by text-writers that a state legislature which has rejected an amendment proposed by the Congress may later ratify. ^[13] The argument in support of that view is that Article V says nothing of rejection but speaks only of ratification and provides that a proposed amendment shall be valid as part of the Constitution when ratified by three-fourths of the States; that the power to ratify is thus conferred upon the State by the Constitution and, as a ratifying power, persists despite a previous rejection. The opposing view proceeds on an assumption that if ratification by 'Conventions' were prescribed by the Congress, a convention could not reject and, having adjourned sine die, be reassembled and ratify. It is also premised, in accordance with views expressed by text-writers, ^[14] that ratification if once given cannot afterwards be rescinded and the amendment rejected, and it is urged that the same effect in the exhaustion of the State's power to act should be ascribed to rejection; that a State can act 'but once, either by convention or through its legislature'.

Historic instances are cited. In 1865, the Thirteenth Amendment was rejected by the legislature of New Jersey which subsequently ratified it, but the question did not become important as ratification by the requisite number of States had already been proclaimed. ^[15] The question did arise in connection with the adoption of the Fourteenth Amendment. The legislatures of Georgia, North Carolina and South Carolina had rejected the amendment in November and December, 1866. ^[16] New governments were erected in those States (and in others) under the direction of Congress. ^[17] The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868. ^[18] Ohio and New Jersey first ratified and then passed resolutions withdrawing their consent. ^[19] As there were then thirty-seven States, twenty-eight were needed to constitute the requisite three-fourths. On July 9, 1868, the Congress adopted a resolution requesting the Secretary of State to communicate 'a list of the States of the Union whose legislatures have ratified the fourteenth article of amendment', ^[20] and in Secretary Seward's report attention was called to the action of Ohio and New Jersey. ^[21] On July 20th Secretary Seward issued a proclamation reciting the ratification by twenty-eight States, including North Carolina, South Carolina, Ohio and New Jersey, and stating that it appeared that Ohio and New Jersey had since passed resolutions withdrawing their consent and that 'it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid and therefore ineffectual'. The Secretary certified that if the ratifying resolutions of Ohio and New Jersey were still in full force and effect, notwithstanding the attempted withdrawal, the amendment had become a part of the Constitution. ^[22] On the following day the Congress adopted a concurrent resolution which, reciting that three-fourths of the States having ratified (the list including North Carolina, South Carolina, Ohio and New Jersey), ^[23] declared the Fourteenth Amendment to be a part of the Constitution and that it should be duly promulgated as such by the Secretary of State. Accordingly, Secretary Seward, on July 28th, issued his proclamation embracing the States mentioned in the congressional resolution and adding Georgia. ^[24]

Thus the political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification. ^[25] While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted.

We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.

The precise question as now raised is whether, when the legislature of the State, as we have found, has actually ratified the proposed amendment, the Court should restrain the state officers from certifying the ratification to e Secretary of State, because of an earlier rejection, and thus prevent the question from coming before the political departments. We find no basis in either Constitution or statute for such judicial action. Article V, speaking solely of ratification, contains no provision as to rejection. ^[26] Nor has the Congress enacted a statute relating to rejections. The statutory provision with respect to constitutional amendments is as follows:

'Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States'. ^[27]

The statute presupposes official notice to the Secretary of State when a state legislature has adopted a resolution of ratification. We see no warrant for judicial interference with the performance of that duty. See Leser v. Garnett, supra, 258 U.S. at page 137, 42 S.Ct. at page 217, 66 L.Ed. 505.

2. The more serious question is whether the proposal by the Congress of the Amendment had lost its vitality through lapse of time and hence it could not be ratified by the Kansas legislature in 1937. The argument of petitioners stresses the fact that nearly thirteen years elapsed between the proposal in 1924 and the ratification in question. It is said that when the amendment was proposed there was a definitely adverse popular sentiment and that at the end of 1925 there had been rejection by both houses of the legislatures of sixteen States and ratification by only four States, and that it was not until about 1933 that an aggressive campaign was started in favor of the amendment. In reply, it is urged that Congress did not fix a limit of time for ratification and that an unreasonably long time had not elapsed since the submission; that the conditions which gave rise to the amendment had not been eliminated; that the prevalence of child labor, the diversity of state laws and the disparity in their administration, with the resulting competitive inequalities, continued to exist. Reference is also made to the fact that a number of the States have treated the amendment as still pending and that in the proceedings of the national government there have been indications of the same view. ^[28] It is said that there were fourteen ratifications in 1933, four in 1935, one in 1936, and three in 1937.

We have held that the Congress in proposing an amendment may fix a reasonable time for ratification. Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994. There we sustained the action of the Congress in providing in the proposed Eighteenth Amendment that it should be inoperative unless ratified within seven years. ^[29] No limitation of time for ratification is provided in the instant case either in the proposed amendment or in the resolution of submission. But petitioners contend that, in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had. We are unable to agree with that contention.

It is true that in Dillon v. Gloss, supra, the Court said that nothing was found in Article V which suggested that an amendment once proposed was to be open to ratification for all time, or that ratification in some States might be separated from that in others by many years and yet be effective; that there was a strong suggestion to the contrary in that proposal and ratification were but succeeding steps in a single endeavor; that as amendments were deemed to be prompted by necessity, they should be considered and disposed of presently; and that there is a fair implication that ratification must be sufficiently contemporaneous in the required number of States to reflect the will of the people in all sections at relatively the same period; and hence that ratification must be within some reasonable time after the proposal. These considerations were cogent reasons for the decision in Dillon v. Gloss, supra, that the Congress had the power to fix a reasonable time for ratification. But it does not follow that, whenever Congress has not exercised that power, the Court should take upon itself the responsibility of deciding what constitutes a reasonable time and determine accordingly the validity of ratifications. That question was not involved in Dillon v. Gloss, supra, and, in accordance with familiar principle, what was there said must be read in the light of the point decided.

Where are to be found the criteria for such a judicial determination? None are to be found in Constitution or statute. In their endeavor to answer this question petitioners' counsel have suggested that at least two years should be allowed; that six years would not seem to be unreasonably long; that seven years had been used by the Congress as a reasonable period; that one year, six months and thirteen days was the average time used in passing upon amendments which have been ratified since the first ten amendments; that three years, six months and twenty-five days has been the longest time used in ratifying. To this list of variables, counsel add that 'the nature and extent of publicity and the activity of the public and of the legislatures of the several States in relation to any particular proposal should be taken into consideration'. That statement is pertinent, but there are additional matters to be examined and weighed. When a proposed amendment springs from a conception of economic needs, it would be necessary, in determining whether a reasonable time had elapsed since its submission, to consider the economic conditions prevailing in the country, whether these had so far changed since the submission as to make the proposal no longer responsive to the conception which inspired it or whether conditions were such as to intensify the feeling of need and the appropriateness of the proposed remedial action. In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of the Government. The questions they involve are essentially political and not justiciable. They can be decided by the Congress with the full knowledge and appreciation ascribed to the national legislature of the political, social and economic conditions which have prevailed during the period since the submission of the amendment.

Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for 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. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.

It would unduly lengthen this opinion to attempt to review our decisions as to the class of questions deemed to be political and not justiciable. In determining whether a question falls within that category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations. ^[30] There are many illustrations in the filed of our conduct of foreign relations, where there are 'considerations of policy, considerations of extreme magnitude, and certainly entirely incompetent to the examination and decision of a court of justice'. Ware v. Hylton, 3 Dall. 199, 260, 1 L.Ed. 568. ^[31] Questions involving similar considerations are found in the government of our internal affairs. Thus, under Article IV, section 4, of the Constitution, U.S.C.A. providing that the United States 'shall guarantee to every State in this Union a Republican Form of Government', we have held that it rests with the Congress to decide what government is the established one in a State and whether or not it is republican in form. Luther v. Borden, 7 How. 1, 42, 12 L.Ed. 581. In that case Chief Justice Taney observed that 'when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal'. So, it was held in the same case that under the provision of the same Article for the protection of each of the States 'against domestic violence' it rested with the Congress 'to determine upon the means proper to be adopted to fulfill this guarantee'. Id., 7 How. at page 43, 12 L.Ed. 581. So, in Pacific Telephone Company v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 231, 56 L.Ed. 377, we considered that questions arising under the guaranty of a republican form of government had long since been 'definitely determined to be political and governmental' and hence that the question whether the government of Oregon had ceased to be republican in form because of a constitutional amendment by which the people reserved to themselves power to propose and enact laws independent of the legislative assembly and also to approve or reject any act of that body, was a question for the determination of the Congress. It would be finally settled when the Congress admitted the senators and representatives of the State.

For the reasons we have stated, which we think to be as compelling as those which underlay the cited decisions, we think that the Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amendment had lost its vitality prior to the required ratifications. The state officials should not be restrained from certifying to the Secretary of State the adoption by the legislature of Kansas of the resolution of ratification.

As we find no reason for disturbing the decision of the Supreme Court of Kansas in denying the mandamus sought by petitioners, its judgment is affirmed but upon the grounds stated in this opinion.

Affirmed.

Notes

1  The text of the proposed amendment is as follows (43 Stat. 670):

'Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

'Sec. 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress'.

2  The state court said on this point:

'At the threshold we are confronted with the question raised by the defendants as to the right of the plaintiffs to maintain this action. It appears that on March 30, 1937, the State Senate adopted a resolution directing the Attorney General to appear for the State of Kansas in this action. It further appears that on April 3, 1937, on application of the Attorney General, an order was entered making the State of Kansas a party defendant. The state being a party to the proceedings, we think the right of the parties to maintain the action is beyond question. G.S.1935, 75-702; State ex rel. v. Public Service Comm., 135 Kan. 491, 11 P.2d 999.'

3  See Caffrey v. Oklahoma Territory, 177 U.S. 346, 20 S.Ct. 664, 44 L.Ed. 799; Smith v. Indiana, 191 U.S. 138, 24 S.Ct. 51, 48 L.Ed. 125; Braxton County Court v. West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450; Marshall v. Dye, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206; Stewart v. Kansas City, 239 U.S. 14, 36 S.Ct. 15, 60 L.Ed. 120; Columbus & Greenville Railway Co. v. Miller, 283 U.S. 96, 51 S.Ct. 392, 75 L.Ed. 861.

4  Mr. Justice Brandeis.

5  Id., 258 U.S. at pages 129, 130, 42 S.Ct. at page 275, 66 L.Ed. 499. See, also, Frothingham v. Mellon, 262 U.S. 447, 480, 486, 487, 43 S.Ct. 597, 598, 600, 601, 67 L.Ed. 1078.

6  Pawhuska v. Pawhuska Oil Co., 250 U.S. 394, 39 S.Ct. 526, 63 L.Ed. 1054; Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937, 29 A.L.R. 1471; Risty v. Chicago, R.I. & Pac. Rwy. Co., 270 U.S. 378, 46 S.Ct. 236, 7 L.Ed. 641; Williams v. Mayor, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015.

7  Act of October 22, 1913, 38 Stat. 219; 28 U.S.C. §§ 47, 47a, 345, 28 U.S.C.A. §§ 47, 47a, 345.

8  15 U.S.C. § 45, 15 U.S.C.A. § 45; 28 U.S.C. § 348, 28 U.S.C.A. § 348.

9  29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e). See, also, as to orders of Federal Communications Commission, 47 U.S.C. § 402(e), 47 U.S.C.A. § 402(e).

10  1 Stat. 73, 85, 86.

11  38 Stat. 790; see, also, Act of September 6, 1916, 39 Stat. 726.

12  See cases cited in Note 3.

13  Jameson on Constitutional Conventions, Secs. 576-581; Willoughby on the Constitution, Sec. 329a.

14  Jameson, op. cit., Secs. 582-584; Willoughby, op. cit., Sec. 329a; Ames, 'Proposed Amendments to the Constitution', House Doc. No. 353, Pt. 2, 54th Cong., 2d Sess., pp. 299, 300.

15  13 Stat. 774, 775; Jameson, op. cit., Sec. 576; Ames, op. cit., p. 300.

16  15 Stat. 710.

17  Act of March 2, 1867, 14 Stat., p. 428. See White v. Hart, 13 Wall. 646, 652, 20 L.Ed. 685.

18  15 Stat. 710.

19  15 Stat. 707.

20  Cong. Globe, 40th Cong., 2d Sess., p. 3857.

21  Cong. Globe, 40th Cong., 2d Sess., p. 4070.

22  15 Stat. 706, 707.

23  15 Stat. 709, 710.

24  15 Stat. 710, 711; Ames, op. cit., App. No. 1140, p. 377.

25  The legislature of New York which had ratified the Fifteenth Amendment in 1869 attempted, in January, 1870, to withdraw its ratification, and while this fact was stated in the proclamation by Secretary Fish of the ratification of the amendment, and New York was not needed to make up the required three-fourths, that State was included in the list of ratifying States. 16 Stat. 1131; Ames. op. cit., App. No. 1284, p. 388.

26  Compare Article VII.

27  5 U.S.C. § 160, 5 U.S.C.A. § 160. From Act of April 20, 1818, Sec. 2, 3 Stat. 439; R.S. § 205.

28  Sen. Rep. 726, 75th Cong., 1st sess.; Sen. Rep. 788, 75th Cong., 1st sess.: Letter of the President on January 8, 1937, to the Governors of nineteen non-ratifying States whose legislatures were to meet in that year, urging them to press for ratification. New York Times, January 9, 1937, p. 5.

29  40 Stat. 1050. A similar provision was inserted in the Twenty-first Amendment. United States v. Chambers, 291 U.S. 217, 222, 54 S.Ct. 434, 435, 78 L.Ed. 763, 89 A.L.R. 1510.

30  See Willoughby, op. cit., pp. 1326, et seq.; Oliver P. Field, 'The Doctrine of Political Questions in the Federal Courts', 8 Minnesota Law Review, 485; Melville Fuller Weston, 'Political Questions', 38 Harvard Law Review, 296.

31  See, also, United States v. Palmer, 3 Wheat. 610, 634, 4 L.Ed. 471; Foster v. Neilson, 2 Pet. 253, 309, 7 L.Ed. 415; Doe v. Braden, 16 How. 635, 657, 14 L.Ed. 1090; Terlinden v. Ames, 184 U.S. 270, 288, 22 S.Ct. 484, 491, 46 L.Ed. 534.