U.S. Supreme Court Coleman v. Miller, 307
U.S. 433 (1939) Coleman v. Miller No. 7 Argued October 10,
1938 Reargued April 17, 18,
1939 Decided June 5, 1939 307
U.S. 433 CERTIORARI TO THE SUPREME COURT OF
KANSAS Syllabus 1. Upon submission of a resolution for ratification of a
proposed amendment to the Federal Constitution, known as the Child
Labor Amendment, twenty of the forty senators of the State of
Kansas 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, and later it was adopted
by the other house of the legislature on a vote of a majority of
its members. The twenty senators who had voted against
ratification, challenging the right of the Lieutenant Governor to
cast the deciding vote in the Senate, and alleging that the
proposed amendment had lost its vitality because of previous
rejection by Kansas and other States and failure of ratification
within a reasonable time, sought a writ of mandamus 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 Kansas from authenticating it
and delivering it to the Governor. The State entered its
appearance, and the State Supreme Court entertained the action,
sustained the right of the plaintiffs to maintain it, but overruled
their contentions, upheld the ratification, and denied the
writ. Held: (1) The questions decided were federal questions, arising under.
Article V of the Constitution. P. 307 U. S.
437 .

															(2) The complaining 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, have a plain, direct and
adequate interest in maintaining the effectiveness of their votes.
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. P. 307 U. S.
438 .

															(3) This Court has jurisdiction to review the decision of the
state court by certiorari, under Jud.Code § 237(b). P. 307 U. S.
438 . Page 307 U. S. 434 2. 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. P. 307 U. S.
446 .

															3. In accordance with the precedent of the Fourteenth Amendment,
the efficacy of ratification of a proposed amendment to the Federal
Constitution by a state legislature which had previously rejected
the proposal is held a question for 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. P. 307 U. S.
447 .

															4. The legislature of Kansas having actually ratified the
proposed Child Labor Amendment, this Court should not restrain the
state officers from certifying the ratification to the Secretary of
State because of an earlier rejection, and thus prevent the
question from coming before the political departments. There is
found no basis in either Constitution or statute for such judicial
action. P. 307 U. S.
450 .

															5. R.S. § 205; 5 U.S.C. 160, presupposes official notice to the
Secretary of State when a state legislature has adopted a
resolution of ratification. No warrant is seen for judicial
interference with the performance of that duty. P. 307 U. S.
450 .

															6. 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 before being adopted by the requisite number
of legislatures. P. 307 U. S.
451 .

															7. In determining whether a question falls within the category
of political nonjusticiable questions, 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.
P. 307 U. S.
454 .

															146 Kan. 390; 71 P.2d 518, reversed.

															Certiorari, 303 U.S. 632, to review a judgment of the Supreme
Court of Kansas denying a writ of mandamus, applied for in that
court by senators of the State and members of its House of
Representatives for the purpose of compelling the Secretary of the
Senate to erase an endorsement purporting to show that a resolution
for the Page 307 U. S. 435 ratification of a proposal to amend the Federal Constitution had
passed the Senate, and to restrain the officers of the Senate and
the other house of the legislature from signing the resolution and
the Secretary of Kansas from authenticating it and delivering it to
the Governor.

															MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

															In June, 1924, the Congress proposed an amendment to the
Constitution, known as the Child Labor Amendment. [ Footnote 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 Page 307 U. S. 436 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 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 Page 307 U. S. 437 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. 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."
[ Footnote 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 Page 307 U. S. 438 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, 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 , 253 U. S. 227 ; Leser v. Garnett, 258 U. S. 130 , 258 U. S. 137 .
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. [ Footnote 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, §
237(a), 28 U.S.C. § 344(a), and the appropriate remedy was by writ
of certiorari, which we granted. Jud.Code, § 237(b), 28 U.S.C. §
344(b).

															The contention to the contrary is answered by our decisions in Hawke v. Smith, supra, and Leser v. Garnett, Page 307 U. S. 439 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. 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 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, 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 become Page 307 U. S. 440 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, [ Footnote 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 . 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. [ Footnote 5 ] It Page 307 U. S. 441 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. [ Footnote 6 ] But there Page 307 U. S. 442 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,
[ Footnote 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 . So, this Court may grant certiorari, on the
application of the Federal Trade Commission, to review decisions
setting aside its orders. [ Footnote
8 ] Federal Trade Commission v. Curtis Publishing Co., 260 U. S. 568 .
Analogous provisions authorize certiorari to review decisions
against the National Labor Relations Board. [ Footnote 9 ] Labor Board v. Jones &
Laughlin Corp., 301 U. S. 1 . Under §
266 of the Judicial Code, 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 .

															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 Page 307 U. S. 443 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 § 25 [ Footnote
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, [ Footnote 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, § 7(b), 28 U.S.C. § 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 , 277 U. S. 7 , 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 Page 307 U. S. 444 were not within the taxing jurisdiction of Connecticut.
Entertaining jurisdiction, this Court reversed the judgment in that
respect. Id., p. 277 U. S. 18 .

															The question received most careful consideration in the case of Boynton v. Hutchinson Gas Co., 291 U.S. 656, 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. [ Footnote 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. 292 U.S.
601. 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 , 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 Co., 302 U. S. 1 , 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 Page 307 U. S. 445 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 , 262 U. S. 480 , 262 U. S.
486 -487), 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 , 101 U. S. 609 ; Frothingham v. Mellon, supra. In Heim v. McCall, 239 U. S. 175 , 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 , 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 Page 307 U. S. 446 in Congress under Article I, § 4 was a lawmaking 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
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 lawmaking 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 .

															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 that, 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 Page 307 U. S. 447 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. [ Footnote 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, [ Footnote 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." Page 307 U. S. 448 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. [ Footnote 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. [ Footnote
16 ] New governments were erected in those States (and in
others) under the direction of Congress. [ Footnote 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.
[ Footnote 18 ] Ohio and New
Jersey first ratified and then passed resolutions withdrawing their
consent. [ Footnote 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," [ Footnote 20 ] and, in Secretary Seward's
report, attention was called to the action of Ohio and New Jersey.
[ Footnote 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 Page 307 U. S. 449 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. [ Footnote 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), [ Footnote 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. [ Footnote 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. [ Footnote 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 Page 307 U. S. 450 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 the 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. [ Footnote 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. [ Footnote 27 ] " Page 307 U. S. 451 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, p. 258 U. S.
137 .

															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. [ Footnote
28 ] It is said that there were fourteen ratifications in 1933,
four in 1935, one in 1936, and three in 1937. Page 307 U. S. 452 We have held that the Congress, in proposing an amendment, may
fix a reasonable time for ratification. Dillon v. Gloss, 256 U. S. 368 .
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. [ Footnote 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 Page 307 U. S. 453 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 is 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 Page 307 U. S. 454 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 Page 307 U. S. 455 are dominant considerations. [ Footnote 30 ] There are many illustrations in the field 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, 3 U. S. 260 .
[ Footnote 31 ] Questions
involving similar considerations are found in the government of our
internal affairs. Thus, under Article IV, section 4, of the
Constitution, 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, 48 U. S. 42 . 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., p. 48 U. S. 43 . So,
in Pacific Telephone Company v. Oregon, 223 U.
S. 118 , we considered that questions arising under the
guaranty of Page 307 U. S. 456 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. [ Footnote 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."

															[ Footnote 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'n, 135 Kan. 491, 11
P.2d 999."

															[ Footnote 3 ] See Caffrey v. Oklahoma Territory, 177 U.
S. 346 ; Smith v. Indiana, 191 U.
S. 138 ; Braxton County Court v. West Virginia, 208 U. S. 192 ; Marshall v. Dye, 231 U. S. 250 ; Stewart v. Kansas City, 239 U. S. 14 ; Columbus & Greenville Ry. Co. v. Miller, 283 U. S.
96 .

															[ Footnote 4 ]

															Mr. Justice Brandeis.

															[ Footnote 5 ] Id., pp. 258 U. S.
129 -130. See also Frothingham v. Mellon, 262 U. S. 447 , 262 U. S. 480 , 262 U. S.
486 -487.

															[ Footnote 6 ] Pawhuska v. Pawhuska Oil Co., 250 U.
S. 394 ; Trenton v. New Jersey, 262 U.
S. 182 ; Risty v. Chicago, R.I. & P. Ry.
Co., 270 U. S. 378 ; Williams v. Mayor, 289 U. S. 36 .

															[ Footnote 7 ]

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

															[ Footnote 8 ]

															15 U.S.C. § 45; 28 U.S.C. § 348.

															[ Footnote 9 ]

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

															[ Footnote 10 ]

															1 Stat. 73, 85, 86.

															[ Footnote 11 ]

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

															[ Footnote 12 ] See cases cited in Note
3 [ Footnote 13 ]

															Jameson on Constitutional Conventions, §§ 576-581; Willoughby on
the Constitution, § 329a.

															[ Footnote 14 ]

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

															[ Footnote 15 ]

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

															[ Footnote 16 ]

															15 Stat. 710.

															[ Footnote 17 ]

															Act of March 2, 1867, 14 Stat., p. 428. See White v.
Hart , 13 Wall. 646, 80 U. S.
652 .

															[ Footnote 18 ]

															15 Stat. 710.

															[ Footnote 19 ]

															15 Stat. 707.

															[ Footnote 20 ]

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

															[ Footnote 21 ]

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

															[ Footnote 22 ]

															15 Stat. 706, 707.

															[ Footnote 23 ]

															15 Stat. 709, 710.

															[ Footnote 24 ]

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

															[ Footnote 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.

															[ Footnote 26 ] Compare Article VII.

															[ Footnote 27 ]

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

															[ Footnote 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 nonratifying States whose legislatures were
to meet in that year, urging them to press for ratification. New
York Times, January 9, 1937, p. 5.

															[ Footnote 29 ]

															40 Stat. 1050. A similar provision was inserted in the
Twenty-first Amendment. United States v. Chambers, 291 U. S. 217 , 291 U. S.
222 .

															[ Footnote 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.

															[ Footnote 31 ] See also United States v.
Palmer , 3 Wheat. 610, 16 U. S. 634 ; Foster v.
Neilson , 2 Pet. 253, 27 U. S. 309 ; Doe v. Braden , 16 How. 635, 57 U. S. 657 ; Terlinden v. Ames, 184 U. S. 270 , 184 U. S.
288 .

															Concurring opinion by MR. JUSTICE BLACK, in which MR. JUSTICE
ROBERTS, MR. JUSTICE FRANKFURTER, and MR. JUSTICE DOUGLAS join.

															Although, for reasons to be stated by MR. JUSTICE FRANKFURTER,
we believe this cause should be dismissed, the ruling of the Court
just announced removes from the case the question of petitioners'
standing to sue. Under the compulsion of that ruling, [ Footnote 2/1 ] MR. JUSTICE ROBERTS, Page 307 U. S. 457 MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, and I have
participated in the discussion of other questions considered by the
Court, and we concur in the result reached, but for somewhat
different reasons.

															The Constitution grants Congress exclusive power to control
submission of constitutional amendments. Final determination by
Congress that ratification by three-fourths of the States has taken
place "is conclusive upon the courts." [ Footnote 2/2 ] In the exercise of that power, Congress,
of course, is governed by the Constitution. 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." 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." [ Footnote 2/3 ]
Proclamation under authority of Congress that an amendment has been
ratified will carry with it a solemn insurance by the Congress that
ratification has taken place as the Constitution commands. Upon
this assurance, a proclaimed amendment must be accepted as a part
of the Page 307 U. S. 458 Constitution, leaving to the judiciary its traditional authority
of interpretation. [ Footnote 2/4 ]
To the extent that the Court's opinion in the present case even
impliedly assumes a power to make judicial interpretation of the
exclusive constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree.

															The State court below assumed jurisdiction to determine whether
the proper procedure is being followed between submission and final
adoption. 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. 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.

															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. There is no
disapproval of the conclusion arrived at in Dillon v.
Gloss, [ Footnote 2/5 ] that the
Constitution impliedly requires that a properly submitted amendment
must die unless ratified within a "reasonable time." Nor does the
Court now disapprove its prior assumption of power to make such a
pronouncement. And it is not made clear that only Congress has
constitutional power to determine if there is any such implication
in Article V of the Constitution. On the other hand, the Court's
opinion declares that Congress has the exclusive power to Page 307 U. S. 459 decide the "political questions" of whether a State whose
legislature has once acted upon a proposed amendment may
subsequently reverse its position, and whether, in the
circumstances of such a case as this, an amendment is dead because
an "unreasonable" time has elapsed. Such division between the
political and judicial branches of the government is made by
Article V, which grants power over the amending of the Constitution
to Congress alone. Undivided control of that process has been given
by the Article exclusively and completely to Congress. The process
itself is "political" in its entirety, from submission until an
amendment becomes part of the Constitution, and is not subject to
judicial guidance, control, or interference at any point.

															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, supra, 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.

															Congress, possessing exclusive power over the amending process,
cannot be bound by, and is under no duty to accept, the
pronouncements upon that exclusive power by this Court or by the
Kansas courts. Neither State nor Federal courts can review that
power. Therefore, any judicial expression amounting to more than
mere acknowledgment of exclusive Congressional power over the
political process of amendment is a mere admonition to Page 307 U. S. 460 the Congress in the nature of an advisory opinion, given wholly
without constitutional authority.

															[ Footnote 2/1 ] Cf. Helvering v. Davis, 301 U.
S. 619 , 301 U. S.
639 -640.

															[ Footnote 2/2 ] Leser v. Garnett, 258 U. S. 130 , 258 U. S.
137 .

															[ Footnote 2/3 ] Jones v. United States, 137 U.
S. 202 , 137 U. S. 212 ; Foster & Elam v.
Neilson , 2 Pet. 253, 27 U. S. 309 , 27 U. S. 314 ; Luther v.
Borden , 7 How. 1, 48 U. S. 42 ; In re Cooper, 143 U. S. 472 , 143 U. S. 503 ; Pacific Telephone Co. v. Oregon, 223 U.
S. 118 ; Davis v. Ohio, 241 U.
S. 565 , 241 U. S.
569 ;

															"And, in this view, it is not material to inquire, nor is it the
province of the court to determine, whether the executive
['political department'] be right or wrong. It is enough to know
that, in the exercise of his constitutional functions, he has
decided the question. Having done this under the responsibilities
which belong to him, it is obligatory on the people and the
government of the Union. . . . [T]his court have laid down the rule
that the action of the political branches of the government, in a
matter that belongs to them, is conclusive." Williams v. Suffolk Ins.
Co. , 13 Pet. 415, 38 U. S.
420 .

															[ Footnote 2/4 ] Field v. Clark, 143 U. S. 649 , 143 U. S.
672 .

															[ Footnote 2/5 ] 256 U. S. 256 U.S.
368, 256 U. S.
375 .

															Opinion of MR. JUSTICE FRANKFURTER.

															It is the view of MR. JUSTICE ROBERTS, MR. JUSTICE BLACK, MR.
JUSTICE DOUGLAS, and myself that the petitioners have no standing
in this Court.

															In endowing this Court with "judicial Power," the Constitution
presupposed an historic content for that phrase, and relied on
assumption by the judiciary of authority only over issues which are
appropriate for disposition by judges. The Constitution further
explicitly indicated the limited area within which judicial action
was to move -- however far-reaching the consequences of action
within that area -- by extending "judicial Power" only to "Cases"
and "Controversies." Both by what they said and by what they
implied, the framers of the Judiciary Article gave merely the
outlines of what were to them the familiar operations of the
English judicial system and its manifestations on this side of the
ocean before the Union. Judicial power could come into play only in
matters that were the traditional concern of the courts at
Westminster, and only if they arose in ways that to the expert feel
of lawyers constituted "Cases" or "Controversies." It was not for
courts to meddle with matters that require no subtlety to be
identified as political issues. [ Footnote 3/1 ] And, even as to the kinds of questions
which were the staple of judicial business, it was not for courts
to pass upon them as abstract intellectual problems, but only if a
concrete living contest between adversaries called for the
arbitrament of law. Compare Muskrat v. United States, 219 U. S. 346 ; Tutun v. United States, 270 U. S. 568 ; Willing
Chicago Page 307 U. S. 461 Auditorium Assn., 277 U. S. 274 ; Nashville, C. & St.L. Ry. Co. v. Wallace, 288 U.
S. 249 .

															As abstractions, these generalities represent common ground
among judges. Since, however, considerations governing the exercise
of judicial power are not mechanical criteria, but derive from
conceptions regarding the distribution of governmental powers in
their manifold, changing guises, differences in the application of
canons of jurisdiction have arisen from the beginning of the
Court's history. [ Footnote 3/2 ]
Conscious or unconscious leanings toward the serviceability of the
judicial process in the adjustment of public controversies clothed
in the form of private litigation inevitably affect decisions. For
they influence awareness in recognizing the relevance of conceded
doctrines of judicial self-limitation and rigor in enforcing
them.

															Of all this the present controversy furnishes abundant
illustration. Twenty-one members of the Kansas Senate and three
members of its House of Representatives brought an original
mandamus proceeding in the Supreme Court of that State to compel
the Secretary of its Senate to erase an endorsement on Kansas
"Senate Concurrent Resolution No. 3" of January 1937, to the effect
that it had been passed by the Senate, and instead to endorse
thereon the words "not passed." They also sought to restrain the
officers of both Senate and House from authenticating and
delivering it to the Governor of the State for transmission to the
Secretary of the United States. These Kansas legislators resorted
to their Supreme Court claiming that there was no longer an
amendment open for ratification by Kansas, and that, in any event,
it had not been ratified by the "legislature" of Page 307 U. S. 462 Kansas, the constitutional organ for such ratification. See Article V of the Constitution of the United States.
The Kansas Supreme Court held that the Kansas legislators had a
right to its judgment on these claims, but, on the merits, decided
against them and denied a writ of mandamus. Urging that such denial
was in derogation of their rights under the Federal Constitution,
the legislators, having been granted certiorari to review the
Kansas judgment, Coleman v. Miller, 303 U.S. 632, ask this
Court to reverse it.

															Our power to do so is explicitly challenged by the United States
as amicus curiae, but would, in any event, have to be
faced. See Mansfield C. & L.M. Ry. Co. v. Swan, 111 U. S. 379 , 111 U. S. 382 .
To whom and for what causes the courts of Kansas are open are
matters for Kansas to determine. [ Footnote 3/3 ] But Kansas cannot define the contours of
the authority of the federal courts, and more particularly of this
Court. It is our ultimate responsibility to determine who may
invoke our judgment and under what circumstances. Are these members
of the Kansas legislature therefore entitled to ask us to
adjudicate the grievances of which they complain?

															It is not our function, and it is beyond our power, to write
legal essays or to give legal opinions, however solemnly requested
and however great the national emergency. See the
correspondence between Secretary of State Jefferson and Chief
Justice Jay, 3 Johnson, Correspondence and Public Papers of John
Jay, 486-89. Unlike the role allowed to judges in a few state
courts and to the Supreme Court of Canada, our exclusive business
is litigation. [ Footnote 3/4 ] The
requisites of litigation are not satisfied Page 307 U. S. 463 when questions of constitutionality, though conveyed through the
outward forms of a conventional court proceeding, do not bear
special relation to a particular litigant. The scope and
consequences of our doctrine of judicial review over executive and
legislative action Page 307 U. S. 464 should make us observe fastidiously the bounds of the litigious
process within which we are confined. [ Footnote 3/5 ] No matter how seriously infringement of
the Constitution may be called into question, this is not the
tribunal for its challenge except by those who have some
specialized interest of their own to vindicate, apart from a
political concern which belongs to all. Stearns v. Wood, 236 U. S. 75 ; Fairchild v. Hughes, 258 U. S. 126 .

															In the familiar language of jurisdiction, these Kansas
legislators must have standing in this Court. What is their
distinctive claim to be here not possessed by every Kansan? What is
it that they complain of which could not be complained of here by
all their fellow citizens? The answer requires analysis of the
grievances which they urge.

															They say that it was beyond the power of the Kansas legislature,
no matter who voted or how, to ratify the Child Labor Amendment,
because, for Kansas, there was no Child Labor Amendment to ratify.
Assuming that an amendment proposed by the Congress dies of
inanition after what is to be deemed a "reasonable" time, they
claim that, having been submitted in 1924, the proposed Child Labor
Amendment was no longer alive in 1937. Or, if alive, it was no
longer so for Kansas, because, by a prior resolution of rejection
in 1925, Kansas had exhausted her power. In no respect, however, do
these objections relate to any secular interest that pertains to
these Kansas legislators apart from interests that belong to the
entire commonalty of Kansas. 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. On this aspect
of the case, the problem would be exactly the same if all but one
legislator had voted for ratification. Page 307 U. S. 465 Indeed, the claim that the Amendment was dead, or that it was
not longer open to Kansas to ratify, is not only not an interest
which belongs uniquely to these Kansas legislators; it is not even
an interest special to Kansas. 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."

															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. By as much right
could a member of the Congress who had voted against the passage of
a bill because moved by constitutional scruples urge before this
Court our duty to consider his arguments of
unconstitutionality.

															Clearly a Kansan legislator would have no standing had be
brought suit in a federal court. Can the Kansas Supreme Court
transmute the general interest in these constitutional claims into
the individualized legal interest indispensable here? No doubt the
bounds of such legal interest have a penumbra which gives some
freedom in judging fulfillment of our jurisdictional requirements.
The doctrines affecting standing to sue in the federal courts will
not be treated as mechanical yardsticks in assessing state court
ascertainments of legal interest brought here for review. For the
creation of vast domain of legal interests is in the keeping of the
states, and, from time to time, state courts and legislators give
legal protection to new individual interests. Thus, while the
ordinary state taxpayer's suit is not recognized in the federal
courts, it affords adequate standing for review of state decisions
when so recognized by state courts. Coyle v. Smith, 221 U. S. 559 ; Heim v. McCall, 239 U. S. 175 . Page 307 U. S. 466 But it by no means follows that a state court ruling on the
adequacy of legal interest is binding here. Thus, in Tyler v.
Judges of the Court of Registration, 179 U.
S. 405 , the notion was rejected that merely because the
Supreme Judicial Court of Massachusetts found an interest of
sufficient legal significance for assailing a statute, this Court
must consider such claim. Again, this Court has consistently held
that the interest of a state official in vindicating the
Constitution of the United States gives him no legal standing here
to attack the constitutionality of a state statute in order to
avoid compliance with it. Smith v. Indiana, 191 U.
S. 138 ; Braxton County Court v. West Virginia, 208 U. S. 192 ; Marshall v. Dye, 231 U. S. 250 ; Stewart v. Kansas City, 239 U. S. 14 . Nor
can recognition by a state court of such an undifferentiated
general interest confer jurisdiction on us. Columbus &
Greenville Ry. Co. v. Miller, 283 U. S.
96 , reversing Miller v. Columbus & Greenville
Ry., 154 Miss. 317, 122 So. 366. Contrariwise, of course, an
official has a legally recognized duty to enforce a statute which
he is charged with enforcing. And so, an official who is obstructed
in the performance of his duty under a state statute because his
state court found a violation of the United States Constitution
may, since the Act of December 23, 1914, 38 Stat. 790, ask this
Court to remove the fetters against enforcement of his duty imposed
by the state court because of an asserted misconception of the
Constitution. Such a situation is represented by Blodgett v.
Silberman, 277 U. S. 1 , and
satisfied the requirement of legal interest in Boynton v.
Hutchinson, 291 U.S. 656, certiorari dismissed on another
ground, 292 U.S. 601. [ Footnote
3/6 ] Page 307 U. S. 467 We can only adjudicate an issue as to which there is a claimant
before us who has a special individualized stake in it. One who is
merely the self-constituted spokesman of a constitutional point of
view cannot ask us to pass on it. The Kansas legislators could not
bring suit explicitly on behalf of the people of the United States
to determine whether Kansas could still vote for the Child Labor
Amendment. They cannot gain standing here by having brought such a
suit in their own names. Therefore, none of the petitioners can
here raise questions concerning the power of the Kansas legislature
to ratify the Amendment.

															This disposes of the standing of the three members of the lower
house who seek to invoke the jurisdiction of this Court. They have
no standing here. Equally without Page 307 U. S. 468 litigious standing is the member of the Kansas Senate who voted
for "Senate Concurrent Resolution No. 3." He cannot claim that his
vote was denied any parliamentary efficacy to which it was
entitled. There remains for consideration only the claim of the
twenty nay-voting senators that the Lieutenant-Governor or Kansas,
the presiding officer of its Senate, had, under the Kansas
Constitution, no power to break the tie in the senatorial vote on
the Amendment, thereby depriving their votes of the effect of
creating such a tie. Whether this is the tribunal before which such
a question can be raised by these senators must be determined even
before considering whether the issue which they pose is
justiciable. For the latter involves questions affecting the
distribution of constitutional power which should be postponed to
preliminary questions of legal standing to sue. Page 307 U. S. 469 The right of the Kansas senators to be here is rested on
recognition by Leser v. Garnett, 258 U.
S. 130 , of a voter's right to protect his franchise. The
historic source of this doctrine and the reasons for it were
explained in Nixon v. Herndon, 273 U.
S. 536 , 273 U. S. 540 .
That was an action for $5,000 damages against the Judges of
Elections for refusing to permit the plaintiff to vote at a primary
election in Texas. In disposing of the objection that the plaintiff
had no cause of action because the subject matter of the suit was
political, Mr. Justice Holmes thus spoke for the Court:

															"Of course, the petition concerns political action, but it
alleges and seeks to recover for private damage. That private
damage may be caused by such political action, and may be recovered
for in a suit at law hardly has been doubted for over two hundred
years, since Ashby v. White, 2 Ld.Raym. 938, 3 Ld.Raym.
320, and has been recognized by this Court."

															"Private damage" is the clue to the famous ruling in Ashby
v. White, supra, and determines its scope as well as that of
cases in this Court of which it is the justification. The judgment
of Lord Holt is permeated with the conception that a voter's
franchise is a personal right, assessable in money damages, of
which the exact amount "is peculiarly appropriate for the
determination of a jury," see Wiley v. Sinkler, 179 U. S. 58 , 179 U. S. 65 ,
and for which there is no remedy outside the law courts. "Although
this matter relates to the parliament," said Lord Holt,

															"yet it is an injury precedaneous to the parliament, as my Lord
Hale said in the case of Bernardiston v. Soame, 2 Lev.
114, 116. The parliament cannot judge of this injury, nor give
damage to the plaintiff for it: they cannot make him a
recompense."

															2 Ld.Raym. 938, 958.

															The reasoning of Ashby v. White and the practice which
has followed it leave intra-parliamentary controversies to
parliaments and outside the scrutiny of law courts. The procedures
for voting in legislative assemblies Page 307 U. S. 470 who are members, how and when they should vote, what is the
requisite number of votes for different phases of legislative
activity, what votes were cast, and how they were counted -- surely
are matters that not merely concern political action, but are of
the very essence of political action, if "political" has any
connotation at all. Field v. Clark, 143 U.
S. 649 , 143 U. S. 670 et seq.; Leser v. Garnett, 258 U.
S. 130 , 258 U. S. 137 .
In no sense are they matters of "private damage." They pertain to
legislators not as individuals, but as political representatives
executing the legislative process. To open the law courts to such
controversies is to have courts sit in judgment on the manifold
disputes engendered by procedures for voting in legislative
assemblies. If the doctrine of Ashby v. White vindicating
the private rights of a voting citizen has not been doubted for
over two hundred years, it is equally significant that, for over
two hundred years, Ashby v. White has not been sought to be put to
purposes like the present. In seeking redress here, these Kansas
senators have wholly misconceived the functions of this Court. The
writ of certiorari to the Kansas Supreme Court should therefore be
dismissed.

															[ Footnote 3/1 ]

															For an early instance of the abstention of the King's Justices
from matters political, see the Duke of York's Claim to
the Crown, House of Lords, 1460, 5 Rot.Parl. 375, reprinted in
Wambaugh, Cases on Constitutional Law 1.

															[ Footnote 3/2 ] See e.g., the opinion of Mr. Justice Iredell in Chisholm v.
Georgia , 2 Dall. 419, 2 U. S. 429 ;
concurring opinion of Mr. Justice Johnson in Fletcher v.
Peck , 6 Cranch 87, 10 U. S. 143 ,
and the cases collected in the concurring opinion of Mr. Justice
Brandeis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S.
341 .

															[ Footnote 3/3 ]

															This is subject to some narrow exceptions not here relevant. See, e.g., McKnett v. St. Louis & San Francisco Ry.
Co., 292 U. S. 230 .

															[ Footnote 3/4 ]

															As to advisory opinions in use in a few of the state courts, see J. B. Thayer, Advisory Opinions, reprinted in Legal
Essays by J. B. Thayer at 42 et seq.; article on "Advisory
Opinions," 1 Enc.Soc.Sci. 475. As to advisory opinions in Canada, see Attorney General for Ontario v. Attorney General for
Canada [1912] A.C. 571. Speaking of the Canadian system, Lord
Chancellor Haldane, in Attorney General for British Columbia v.
Attorney General for Canada [1914] A.C. 153, 162, said:

															"It is at times attended with inconveniences, and it is not
surprising that the Supreme Court of the United States should have
steadily refused to adopt a similar procedure, and should have
confined itself to adjudication on the legal rights of litigants in
actual controversies."

															For further animadversions on advisory pronouncements by judges, see Lord Chancellor Sankey in In re The Regulation and
Control of Aeronautics in Canada [1932] A.C. 54, 66:

															"We sympathize with the view expressed at length by Newcombe,
J., which was concurred in by the Chief Justice [of Canada] as to
the difficulty which the Court must experience in endeavoring to
answer questions put to it in this way."

															Australia followed our Constitutional practice in restricting
her courts to litigious business. The experience of English history
which lay behind it was thus put in the Australian Constitutional
Convention by Mr. (later Mr. Justice) Higgins:

															"I feel strongly that it is most inexpedient to break in on the
established practice of the English law, and secure decisions on
facts which have not arisen yet. Of course, it is a matter that
lawyers have experience of every day that a judge does not give the
same attention, he cannot give that same attention, to a
suppositious case as when he feels the pressure of the consequences
to a litigant before him. . . . But here is an attempt to allow
this High Court, before cases have arisen, to make a pronouncement
upon the law that will be binding. I think the imagination of
judges, like that of other persons, is limited, and they are not
able to put before their minds all the complex circumstances which
may arise and which they ought to have in their minds when giving a
decision. If there is one thing more than another which is
recognized in British jurisprudence, it is that a judge never gives
a decision until the facts necessary for that decision have
arisen."

															Rep.Nat.Austral.Conv.Deb. (1897) 966-67.

															[ Footnote 3/5 ] See the series of cases beginning with Hayburn's
Case , 2 Dall. 409, through United States v.
West Virginia, 295 U. S. 463 .

															[ Footnote 3/6 ]

															A quick summary of the jurisdiction of this Court over state
court decisions leaves no room for doubt that the fact that the
present case is here on certiorari is wholly irrelevant to
our assumption of jurisdiction. Section 25 of the First Judiciary
Act gave reviewing power to this Court only over state court
decisions denying a claim of federal right. This
restriction was, of course, born of fear of disobedience by the
state judiciaries of national authority. The Act of September 6,
1916, 39 Stat. 726, withdrew from this obligatory jurisdiction
cases where the state decision was against a "title, right,
privilege, or immunity" claimed to exist under the Constitution,
laws, treaties or authorities of the United States. This change,
which was inspired mainly by a desire to eliminate from review as
of right of cases arising under the Federal Employers' Liability
Act, left such review only in cases where the validity of a treaty,
statute, or authority of the United States was drawn into question
and the decision was against the validity, and in cases where the
validity of a statute of a state or a state authority was drawn
into question on the grounds of conflict with federal law, and the
decision was in favor of its validity. The Act of February 13,
1925, 43 Stat. 936, 937, extended this process of restricting our
obligatory jurisdiction by transferring to review by certiorari
cases in which the state court had held invalid an "authority"
claimed to be exercised under the laws of the United States or in
which it had upheld, against claims of invalidity on federal
grounds, an "authority" exercised under the laws of the states.
Neither the terms of these two restrictions nor the controlling
comments in committee reports or by members of this, Court who had
a special share in promoting the Acts of 1916 and 1925, give any
support for believing that, by contracting the range of obligatory
jurisdiction over state adjudications Congress enlarged the
jurisdiction of the Court by removing the established requirement
of legal interest as a threshold condition to being here.

															Nor does the Act of December 23, 1914, 38 Stat. 790, touch the
present problem. By that Act, Congress for the first time gave this
Court power to review state court decisions sustaining a federal
right. For this purpose, it made certiorari available. The
Committee reports and the debates on this Act prove that its
purpose was merely to remove the unilateral quality of Supreme
Court review of state court decisions on constitutional questions
as to which this Court has the ultimate say. The Act did not create
a new legal interest as a basis of review here; it built on the
settled doctrine that an official has a legally recognizable duty
to carry out a statute which he is supposed to enforce.

															Thus, prior to the Act of 1914, the Kentucky case, Chandler
v. Wise, 307 U. S. 474 ,
could not have come here at all, and, prior to 1916, the Kansas
case would have come here, if at all, by writ of error. By allowing
cases from state courts which previously could not have come here
at all to come here on certiorari, the Act of 1914 merely lifted
the previous bar -- that a federal claim had been sustained -- but
left every other requisite of jurisdiction unchanged. Similarly, no
change in these requisites was affected by the Acts of 1916 and
1925 in confining certain categories of litigation from the state
courts to our discretionary, instead of obligatory, reviewing
power.

															MR. JUSTICE BUTLER, dissenting.

															The Child Labor Amendment was proposed in 1924; more than 13
years elapsed before the Kansas legislature voted, as the decision
just announced holds, to ratify it. Petitioners insist that more
than a reasonable time had elapsed, and that therefore the action
of the state legislature is without force. 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. Page 307 U. S. 471 In Dillon v. Gloss, 256 U. S. 368 , one
imprisoned for transportation of intoxicating liquor in violation
of § 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.
The Amendment was ratified in less than a year and a half. 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.

															We said:

															"It will be seen that this article says nothing about the time
within which ratification may be had -- neither that it shall be
unlimited nor that it shall be fixed by Congress. What, then, is
the reasonable inference or implication? Is it that ratification
may be had at any time, as within a few years, a century or even a
longer period, or that it must be had within some reasonable period
which Congress is left free to define? . . ."

															"We do not find anything in the article which suggests that an
amendment once proposed is to be open to ratification for all time,
or that ratification in some of the states may be separated from
that in others by many years and yet be effective. We do find that
which strongly suggests the contrary. 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 Page 307 U. S. 472 states, there is a fair implication that it must be sufficiently
contemporaneous in that number of states to reflect the will of the
people in all sections at relatively the same period, which, of
course, ratification scattered through a long series of years would
not do. These considerations and the general purport and spirit of
the article lead to the conclusion expressed by Judge Jameson [in
his Constitutional Conventions, 4th ed. § 585]"

															"that an alteration of the Constitution proposed today has
relation to the sentiment and the felt needs of today, and that, if
not ratified early while that sentiment may fairly be supposed to
exist, it ought to be regarded as waived, and not again to be voted
upon, unless a second time proposed by Congress."

															"That this is the better conclusion becomes even more manifest
when what is comprehended in the other view is considered; for,
according to it, four amendments proposed long ago-two in 1789, one
in 1810, and one in 1861-are still pending, and in a situation
where their ratification in some of the states many years since by
representatives of generations now largely forgotten may be
effectively supplemented in enough more states to make
three-fourths by representatives of the present or some future
generation. To that view few would be able to subscribe, and, in
our opinion, it is quite untenable. We conclude that the fair
inference or implication from article 5 is that the ratification
must be within some reasonable time after the proposal."

															"Of the power of Congress, keeping within reasonable limits, to
fix a definite period for the ratification, we entertain no doubt.
. . . Whether a definite period for ratification shall be fixed, so
that all may know what it is and speculation on what is a
reasonable time may be avoided, is, in our opinion, a matter of
detail which Congress may determine as an incident of its power to
designate the mode of ratification. It is not questioned that seven
years, the period fixed in this instance, was reasonable, Page 307 U. S. 473 if power existed to fix a definite time; nor could it well be
questioned considering the periods within which prior amendments
were ratified."

															Upon the reasoning of our opinion in that case, I would hold
that more than a reasonable time had elapsed * and Page 307 U. S. 474 that the judgment of the Kansas supreme court should be
reversed.

															The point, that the question -- whether more than a reasonable
time had elapsed -- is not justiciable, but one for Congress after
attempted ratification by the requisite number of States, was not
raised by the parties or by the United States appearing as amicus curiae; it was not suggested by us when ordering
reargument. As the Court in the Dillon case did directly
decide upon the reasonableness of the seven years fixed by the
Congress, it ought not now, without hearing argument upon the
point, hold itself to lack power to decide whether more than 13
years between proposal by Congress and attempted ratification by
Kansas is reasonable.

															MR. JUSTICE McREYNOLDS joins in this opinion.

															* CHRONOLOGY OF CHILD LABOR AMENDMENT [A State is said to have "rejected" when both Houses of its
legislature passed resolutions of rejection, and to have "refused
to ratify" when both Houses defeated resolution for
ratification.]

															June 2, 1924, Joint Resolution deposited in State Department. In
that year, Arkansas ratified; North Carolina rejected. Ratification, 1; rejection, 1. 1925, Arizona, California and Wisconsin ratified; Florida,
Georgia, Indiana, Kansas, Maine, Massachusetts, Minnesota,
Missouri, New Hampshire, Pennsylvania, South Carolina, Tennessee,
Texas, Utah, and Vermont rejected; Connecticut, Delaware and South
Dakota refused to ratify. Ratifications, 4; rejections, 16;
refusals to ratify, 3. 1926, Kentucky and Virginia rejected. Ratifications, 4;
rejections, 18; refusals to ratify, 3. 1927, Montana, ratified; Maryland rejected. Ratifications,
5; rejections, 19; refusals to ratify, 3. 1931, Colorado ratified. Ratifications, 6; rejections, 19;
refusals to ratify, 3. 1933, Illinois, Iowa, Michigan, New Jersey, North Dakota, Ohio,
Oklahoma, Oregon, Washington and West Virginia ratified, as did
also Maine, Minnesota, New Hampshire, and Pennsylvania, which had
rejected in 1925. Ratifications, 20; rejections (eliminating
States subsequently ratifying), 15; refusals to ratify, 3. 1935, Idaho and Wyoming ratified, as did Utah and Indiana, which
had rejected in 1925. As in 1925, Connecticut refused to ratify. Ratifications, 24; rejections, 13; refusals to ratify,
3. 1936, Kentucky, which had rejected in 1926, ratified. Ratifications, 25; rejections, 12; refusals to ratify,
3. 1937, Nevada and New Mexico ratified, as did Kansas, which had
rejected in 1925. Massachusetts, which had rejected in 1925,
refused to ratify. Ratifications, 28; rejections, 11; refusals
to ratify, 3. Six States are not included in this list: Alabama, Louisiana,
Mississippi, Nebraska, New York, and Rhode Island. It appears that
there has never been a vote in Alabama or Rhode Island. Louisiana
house of representatives has three times (1924, 1934 and 1936)
defeated resolutions for ratification. In Mississippi, the Senate
adopted resolution for ratification in 1934, but, in 1936, another
Senate resolution for ratification was adversely reported. In
Nebraska, the House defeated ratification resolutions in 1927 and
1935, but the Senate passed such a resolution in 1929. In New York,
ratification was defeated in the House in 1935 and 1937, and, in
the latter year, the Senate passed such a resolution.