The Charlotte News

Thursday, December 15, 1938


Site Ed. Note: "Still Knocking Around" presents an intriguing legal question still not resolved: How long do proposed constitutional amendments, not limited on their face as to gestation for purposes of ratification, get to stand before the states for passage?

The older case to which the editorial refers, Dillon v. Gloss, 256 US 368 (1921), held that Congress has the power to fix a reasonable term for consideration by the states of a proposed amendment; that even though the Constitution is silent as to any particular period for such consideration, it is nevertheless appropriate to fix a reasonable time frame which provides for contemporaneous approval or not by the people of the proposed amendment since ultimately the font of authority for the Constitution flows from the people. (In the particulars of Dillon, a person had been charged with violating laws passed pursuant to prohibition, instituted by the Eighteenth Amendment; the defendant contended that the amendment, though ratified within seven years of proposal, as authorized by Congress, was nevertheless invalid as Congress possessed no authority to enable such a time limit on passage. The argument in this instance was specious as the amendment was quickly ratified, within less than a year and a half of passage by Congress.) As the Court pointed out, to have it otherwise and allow amendments to languish before the public indefinitely could lead to anomalous results whereby one generation partially approves of a proposed amendment, but not sufficiently to warrant ratification, then a completely different generation ratifies the amendment in one or two needed remaining states, even though in the time of final ratification still far fewer than the necessary three-fourths of the current constituency of the country approve it.

No better example of such a possibility exists than in the 1861 proposed amendment discussed by the Court which designed to disallow Congress from passing laws interfering with slavery; were the indefinite ratification time rule to be adopted, that amendment would effectively, if ratified today, negate the Thirteenth Amendment abolishing slavery, ratified in December, 1865! Would that, basing its potential ratification on states' votes in 1861 and during the Civil War, then coupling it theoretically with other votes of states today--or, say, had it been revived in the racially-charged atmosphere of the 1950's and 1960's, basing it on votes then of former slave-holding states which seceded prior to its proposal--if somehow ratified thusly by three-fourths of the states, however unlikely such a prospect could ever be, be reasonable?

The answer is obvious. So hold up your petitions for revivification there, Mr. 'n' Mrs. Stars N. Bars. (Watch what you're drinking, too.)

Nevertheless, believe it or no, because of an assiduous, (with perhaps in this instance special Southern accent on the first syllable), legislator's aide in the 1980's out of Texas who discovered a long languishing amendment since the founding, first proposed in 1789, there has now been tentatively added to the Constitutional array the 27th Amendment, after its final putative ratification in 1992! Obviously, quite in derogation of the plain language, however, in Dillon. If ever challenged, it is unlikely this constitutional amendment is valid after 203 years of separation between proposal and ratification? Same constituencies at proposal as at ratification?

Well, at present, that would be hard to say because the case to which the editorial refers, Coleman v. Miller, 307 US 433 (1939), not decided until June, held that the issue of whether 13 years was an unreasonable time for the child labor amendment to languish was not justiciable in the courts, but rather a political question to be answered exclusively by Congress. In other words, if Congress ultimately were to accept the later attempts of states to ratify and then report ultimately an amendment thus ratified, the time frame is deemed "reasonable" by its process, not subject to review by the courts. Legislative debate would therefore be the avenue of challenge presumably under the state of the law left by Coleman. The majority seven-justice opinion in the case held that the language in Dillon re "reasonable time" is dicta, that is advisory only and not binding on future courts as stare decisis, because it was there stated pertinent to the particular stance of that case which had challenged not the reasonableness per se, but rather whether Congress had authority to set a time frame, finding that it did. But Dillon did not, said Coleman, go further to set an absolute standard of reasonableness susceptible of judicial, as opposed to exclusively Congressional, determination.

Parenthetically, we might query whether Bush v. Gore has re-defined or sufficiently blurred the lines between justiciable questions and political questions such that a future Court might feel more comfortable in broaching this issue, especially, in some particularly glaring setting, and overruling Coleman. (Before Bush v. Gore, we might have argued some of the very issues discussed in the latter paragraphs of Coleman, defining and limiting the Court's historical role in staying out of the political process, matters best left to the state legislatures or Congress or the executive branches of government.)

The four separately concurring justices in Coleman, including newly appointed William O. Douglas, (still Chairman of the SEC at this time in December, 1938 when the below editorial "Gift from the Gods" appeared re that commission), went even further than the majority opinion and expressly disapproved Dillon to the extent it held that power lay in the courts to determine the question of reasonableness of time.

The Court's reasoning was that so many social, political, and economic issues, as particularly involved in the child labor dispute, are called to account in determining the issue of reasonableness of time for ratification that such an assessment goes beyond the proper sphere of inquiry and proper proof mechanisms of the courts. Thus, it should be left to the body charged with authorizing amendments, Congress.

Interestingly, in reaching its decision, the Court reviewed the history of ratification of the Fourteenth Amendment, passed by Congress in 1866: that with 28 states needed to pass it and 26 having done so, North Carolina, South Carolina, and Georgia, under newly installed Reconstruction governments, each state having already considered and rejected the amendment, took it up again and passed it in summer, 1868. Meantime, however, New Jersey and Ohio, having once passed it, held subsequent votes and rejected it, thus leaving ratification ostensibly one short if the later vitiation of ratification by Ohio and New Jersey proved proper. Nevertheless, the resolutions of all the states, including New Jersey and Ohio, were presented to the Congress for final ratification and the amendment was deemed ratified on July 28, 1868. Thus, the Court said, there was precedent for the notion that once ratified a state cannot backtrack, while once rejected, can still revisit the issue and approve, but again, ultimately, these issues appear within the purview of Congressional discretion to determine by virtue of recognition or not of ratification.

Thus, presumptively, based on Coleman, the 27th Amendment is properly ratified only if formally recognized as such by Congress. Since the amendment has to do only with limiting the effective date of voted pay raises to Senators and Representatives until after at least one election has intervened, it is unlikely there will ever arise much of a challenge under it, especially since its provision has long ago been passed as a Federal statute, and is thus operative in any event.

Yet, technically, the amendment, as such, is a chimera, we posit, at least until recognized by Congress. And Congress best be careful in determining that for which it wishes in deciding that issue should it ever arise in debate seeking formal recognition of this 1789 amendment. Else, better prepare yourself inevitably somewhere also for Mr. 'n' Mrs. S.N.B. over yonda assiduously a-wavin' that theya fla-ag--and riiiiight in yu face, Pilgrim. The Sooouuuth shall rize a-gain!

But, should it, simply marshal Dillon and its rationale a little against such a conception; Dillon shall prevail, undoubtedly, Coleman or no.

And as to old 1789's no. 27, the real question may come when the next amendment is ratified: Is it to be 27 or 28? Only Congress shall know the answer. (God, help us.)

Perhaps, the next one offered up ought be to establish a maximum time limit for ratification of amendments?

Incidentally, Justices Butler and McReynolds both dissented in Coleman, (as well as in the companion case decided simultaneously, Chandler v. Wise, 307 US 474 (1939), in which the Court simply side-stepped the issue on procedural grounds), both justices believing that in both cases, under Dillon, the Court could and should decide the issue of the time which is reasonable for an amendment to maintain life for ratification.

And for more on the Coster matter discussed in "Gift from the Gods", its connection to long-term Congressman Wright Patman, (thus, by virtue of a long term, not only anti-trust law, but also Watergate), see "Immunity", August 2, 1940, and its accompanying note. Also, visit the Truman Library for some more insight. (Maybe all that hair of Musica was being used in those strangely filled mattresses at the Charlotte Sanatorium in 1938? Lord only knows what became of it by 1968. (Don't ask us why? We may tell you.))

And, note with emphasis in "Nine Points of the Law" what Cash apparently thought of the concept of states' rights generally.

Why, incidentally, the one on the Davidson publicity man's hiring at Vicks got slighted a title, we don't know. Maybe someone down in the basement thought it had to do with the previous piece--Vicks, McKesson & Robbins, all the medication running together here in early winter. Anyway, we'll go ahead and provide it a title 67 years late, so that it need no longer suffer its heretofore fate as an unnamed and abandoned orphan amid the Coster print:

Smith's Move to Vapors Sure Boon for Cold Remedy

Still Knocking Around

The Supreme Court put off at least for one more week its answer to the question, What is the life of a proposed constitutional amendment?

It was back in 1924 that the proposed child labor amendment to the Federal constitution, giving Congress the right to "limit, regulate and prohibit the labor of persons under eighteen years of age," was first submitted to the states. It was offered without the usual time limit of seven years, such as accompanied the eighteenth, twentieth and twenty-first amendments. It has been knocking around from state legislature to state legislature ever since, picking up a subscriber every now and then (eleven states have ratified which previously had rejected) but never losing a subscriber. States which vote against it can change their minds and vote for it, though states which voted in the affirmative are not permitted to reconsider.

The Supreme Court has ruled in a previous case that ratification of a constitutional amendment, to be effective, must take place within a "reasonable time" after its submission. In fourteen years only 28 of the necessary 36 states have accepted the child labor amendment. Fourteen states have rejected it twice apiece, and three states three times apiece.

Unanswered Questions

The Grand Jury has passed the buck to the Federal Bureau of Investigation, and the FBI in turn has passed it to the investigation division of the WPA. And we have an uneasy feeling that the investigation of those phoney mattresses on which the patients at the Mecklenburg Sanatorium have been sleeping uneasily for a year, is somehow beginning to languish, after the general fashion of investigations in Mecklenburg. Yet the business plainly ought to be gone into much more fully than it has been. Reading the stories of our Mr. Paul--a bloodhound for all the available facts--we find ourselves with a whole flock of unanswered questions.

For instance, on exactly whose authority was it decided that the cotton furnished by the Federal Government was "not suitable" for making mattresses? Exactly who ordered it sold? Exactly who handled the transaction with the brokerage house? How much was paid for the cotton? To whom was it paid? How much was expended for ticking and labor on mattresses? Where was the cotton adjudged "suitable" for mattresses purchased? Exactly who adjudged it "suitable"? How much was paid for it? Who accepted it and paid for it? Why was no record kept of the transaction? Or if a record was kept, what has become of it and why is it no longer "available"? And, what is still more interesting, is this cotton which was judged "more suitable" the same cotton found in the mattresses at the Sanatorium? The cotton described by Dr. Seay and Mr. Cashion as "floor sweepings and waste," full of trash and splinters? And if it isn't, what became of the "suitable cotton"?

Portrait of Sovereignty

Czechoslovakia seems now to be in full enjoyment of that undisputed sovereignty which Bumble & Co. promised to guarantee in return for swallowing Munich without a whimper. She has been permitted to get rid of Benes and Synovy and put in their place men who have promised to be "very loyal" to Mr. Hitler, to begin the persecution of her Jews, to abolish free speech and a free press, and to reduce her numerous parties to two, both of them cut to the Nazi pattern. And--

Last week Benito Mussolini sat himself down and wrote a humorous little dialogue for his stooge journal, Populo d'Italia, wherein Haile Selassie and Edouard Benes were made to lament that they had been so foolish as to trust England and France instead of at once throwing themselves on the gentle mercy of Benito Mussolini and his good, kind pal, A. Hitler. But the censor at Prague, being still Czech, didn't think it very funny, and ordered the Czech newspapers not to copy it. Wherefore, says Popolo d'Italia, it was decided in Rome (but primarily in Berlin, you may be sure) that it was "obvious than an organized boycott of the most authoritative voice of the Fascist regime cannot go without immediate correction:" the Italian Minister called twice at the Czech Foreign Office: and the second time was humbly promised that every Czech paper would be ordered to copy the dialogue.

Next thing we know the Czechs' enjoyment of their sovereignty under the solemn pledge of mighty England and great France, will have gone so far that they'll even be able openly to raise the swastika flag over their capital!

Gift from the Gods

The tale of the affairs of McKesson & Robbins, Inc., as it is being unfolded, reads like the invention of a novelist. The firm, one of the largest drug dealers in the world, was listed on the stock exchange, and thousands of people held its stocks, bought in good faith.

But now, as result of investigations by its treasurer, the SEC, and the Department of Justice, the following transpire:

Stocks of crude drugs valued at $18,000,000, and regularly listed among the firm's assets, probably do not exist at all. At least, all the "warehouses" that have been looked into so far have turned out to be mere office addresses.

The firm has been paying an English "agent," who sold no goods, $150,000 a year.

Dun & Bradstreet reports that the "statements" of the firm's financial agents, purportedly drawn up by Dun & Bradstreet, are forgeries.

And now to add the last bizarre note, Department of Justice investigators, who have been looking into the past of F. Donald Coster, president of the firm, under arrest in connection with the case, insinuate that he is not F. Donald Coster at all, but a "man of different identity and known to this office."

But it's an ill wind that bloweth nobody good. And we bet you that the SEC boys in Washington and the New Dealers generally are anything but unhappy over the development of this case. They couldn't have found a better exhibit to justify the SEC law if they had made it up themselves.


Davidson College is losing a good man and Vick Chemical Co. gaining one in the transference of Conrad Frederick Smith, alumni secretary and publicity director. Fred has been not only a most zealous press agent but a most accommodating one. Besides, the fellow has an innate sense of dignity--Davidson couldn't have found a more suitable representative--and he has a marked literary talent.

We notice that his duties at the college will be taken over for awhile by volunteers from the faculty. We want to be the first to say that it isn't going to work. The incumbent has taught the newspapers to expect a better service than any volunteers will render. It has been "Fred, shoot us a picture of..." and, "Fred, get up the dope on..." and that's more than we shall feel like asking of Dr. Lingle and associates.

Nine Points of the Law

States' rights is a term that covers a multitude of self-interest. It has been invoked over in Tennessee in connection with what Senator-reject George Berry calls "a broad question." The question is, to come right down to it, whether Berry shall draw for two extra months his salary and perquisites as a United States Senator or shall go off the payroll as of the date of the election of his successor.

In May, 1937, on the death of Senator Bachman, Governor Browning appointed Berry, his henchman, to serve in the Senate "until his successor is elected and qualified." In November, 1938, Tennessee voters, having already eliminated Senator Berry in the Democratic primary, duly elected Tom Stewart to take his seat. And there is a Federal law prescribing that when Senators are elected during a sine die adjournment to succeed Senators-by-appointment, their salaries shall commence on the day following their election. But the commission of Senator Berry read, "until his successor is qualified," which cannot take place until Congress convenes on the third of January.

Well, this is a case for the lawyers. But we feel competent to say offhand that states' rights enters into it not at all except as Tennessee is given the right, if it wants it, to pay Senator Berry's salary and clerk hire for the period between Nov. 9 and Jan. 3. In general, that is, the hand that signs the check has virtually all of the ultimate rights.


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