Clarifying the Amending Process
![handle is hein.journals/waslee1 and id is 217 raw text is: COMMENTS
CLARIFYING THE AMENDING PROCESS
NOEL T. DOWLING*
In a decision' accompanied by a series of opinions last Term, the
Supreme Court put a new complexion on the legal features of the pro-
cess of amending the Constitution. Hitherto the question whether an
amendment had been properly and seasonably adopted was, by assump-
tion if not by actual decision, cognizable in and determinable by the
Court, though the principles governing the determination were by no
means clear or settled. Today the question is one for Congress. It has
ceased to be justiciable. It has become political.
This bit of transmutation was not accomplished with the greatest
of ease. Two cases were argued together2 in October, 19,8, but, while
other cases submitted then and thereafter were readily disposed of in
the normal period of six weeks to two months, nothing was heard of
these. At that time the Court had only eight members, no successor to
Mr. Justice Cardozo having been appointed, and it was believed that
they were equally divided on the question of jurisdiction. After the ap-
pointment of Mr. Frankfurter it was expected that the cases would be
set down for re-argument, but the retirement of Mr. Justice Brandeis
again reduced the Court to eight. Finally, on April 17, the day on which
Mr. Justice Douglas took his seat to make a full bench of nine, the re-
argument was begun. Seven weeks later, June 5, the decision came
down. Four opinions were delivered, the prevailing one by Mr. Chief
Justice Hughes (joined by Justices Stone and Reed), a concurring one
by Mr. Justice Black (joined by Justices Roberts, Frankfurter and
Douglas), a separate one by Mr. Justice Frankfurter (joined by Justices
Roberts, Black and Douglas), and a dissenting one by Mr. Justice But-
ler (joined by Mr. Justice McReynolds).
The case which called forth this bevy of opinions presented a single
issue, namely, whether or not the ratification of the Child Labor
Amendment by Kansas was valid. In the period which had elapsed since
the submission of the amendment in 1924 the State had first (1925) re-
jected the proposal and thereafter (197) accepted it. A suit was begun
to test the legality of such action and two separate questions were de-
veloped in the litigation; first, was a State bound by its first vote, so that
*Nash Professor of Law, Columbia University Law School.
'Coleman v. Miller, 307 U. S. 433, 59 S. Ct. 972 (1939).
2Chandler v. Wise, 307 U. S. 474, 59 S. Ct. 992 (1939), was the other, but as will
appear later, it was dismissed without consideration of the merits.
1940]](ViewImageLocal?handle=hein.journals/waslee1&div=17&collection=&method=preview&ext=.png&size=3)
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Clarifying the Amending Process
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