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Still More on Article V Justiciability: Idaho v. Freeman

The second important district court opinion on the justiciability of Article V claims is Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), judgment stayed sub nom. Natl Org. of Women v. Freeman, 455 U.S. 918 (1982), vacated as moot and remanded to dismiss, 459 U.S. 809 (1982). Before turning to Freeman’s justiciability analysis, it is important to understand the facts before the court. In March 1972, Congress proposed the Equal Rights Amendment (acting, of course, by a two-thirds vote in each house as required by Article V) and set a seven-year period for ratification by state legislatures. Congress is not required to set a time limit for ratification, but it has customarily done so since it proposed the 18th amendment in 1917. This practice was upheld by the Supreme Court in Dillon v. Gloss, 256 U.S. 368 (1921).

The Idaho legislature ratified the ERA almost immediately after it was proposed. The resolution ratifying the amendment recited the seven-year time limit for ratification contained in the congressional resolution. By 1977, however, with the ERA not having received the requisite ratification by three-quarters of the state legislatures, Idaho changed its mind and rescinded its prior ratification.

By late 1978, the ERA had still not been ratified by the required supermajority. 35 states had ratified the amendment (three short of the required 38). Moreover, five of those states, including Idaho, had rescinded their ratifications. Faced with this situation, Congress acted to extend the ratification deadline until June 39, 1982, just over three years after the original deadline would expire on March 22, 1979.

A lawsuit challenging this action was brought by the states of Idaho and Arizona, as well as the legislative leadership and individual legislators from those states (joined by some individual legislators from the state of Washington). In essence, Idaho argued that (1) Congress could not extend the deadline for ratification of the ERA; (2) Congress could not count Idaho’s ratification of the ERA because it was predicated on a seven-year ratification period; and (3) Congress certainly could not extend the ratification period and then ignore Idaho’s rescission of its ratification. (A subsidiary issue was whether Congress could extend the deadline by a simple majority vote).

On the merits, these arguments seem extremely powerful. It is hard to see how Congress can set a seven-year ratification period and then unilaterally extend that period, at least without starting ratifications over at zero. It is inconceivable to me that Congress could extend the ratification period and at the same time prohibit states like Idaho, which ratified based on an understanding of a seven-year ratification period, from rescinding their prior ratifications. This would amount to a constitutional fraud on the states. Or so it seems to me and, I suspect, seemed to the district court in Freeman, which was unusually motivated to reach the merits.

It is worth mentioning that the defendants in Freeman twice sought to disqualify the district judge on the grounds that his leadership position in the Mormon Church (which officially opposed both the ERA and Congress’s extension of the ratification deadline) could cause his impartiality to be questioned. See Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981); Idaho v. Freeman, 478 F. Supp. 33 (D. Idaho 1979). In response to the first motion, brought by the Department of Justice, the court observed:

It is rather ironic that defendant should raise the issue of judicial prejudice in this particular action. It is apparent that in this case the district court is only a conduit for passing these issues on to the circuit court and ultimately, the Supreme Court of the United States. It is obvious from the pleadings that the evidence will almost entirely consist of public documents and records about which there is no dispute. In such a case, the rules which the appellate courts follow permit them to utterly disregard the district court’s decision and to review the evidence and the law as if the case had been initially tried before them.

478 F. Supp. at 37.

While this observation is accurate as a practical matter, it might be seen to indicate the mindset of a judge who expects to issue what in effect is an advisory opinion, rather than a binding resolution of a dispute between the parties. It provides some further evidence, along with the issues discussed in this post and the fact that the district court’s ruling was ultimately vacated by the Supreme Court, that the Freeman decision not only lacks any formal precedential authority, but is likely to be seen as an outlier with regard to its analysis of justiciability.

Justiciability in General

As the Freeman court notes at the beginning of its justiciability analysis, the Supreme Court “has articulated certain minimum prerequisites to adjudication—parties with standing and issues that are ripe and not moot, hypothetical, or political—that are necessary and sufficient conditions for securing what may be called the substantive judgment of the Court.” Freeman, 529 F. Supp. at 1115-16. These doctrines, in theory, flow from Article III’s limitation of the judicial power to “cases” and “controversies,” but as the Freeman court observes “[t]hese words are inherently ambiguous and accordingly their meaning has been dependent upon judicial interpretation.” Id. at 1115. I would put this somewhat more forcefully and say that justiciability doctrines are not meaningfully constrained by constitutional text or other extrinsic evidence, but basically reflect a judicial policy regarding the type of cases courts believe to be appropriate for judicial resolution.

The Freeman opinion is best understood as an argument for a much broader judicial acceptance of constitutional claims under Article V than would be suggested by a reading of the principal opinions in Coleman v. Miller. If this argument were accepted, courts would likely be faced with a flood of Article V cases related to the application of state legislatures for a convention for proposing amendments. After all, state legislatures have passed hundreds of such applications over the years. There are many legal questions regarding such applications which a court might be asked to resolve, such as: Can an application be limited to a single subject or amendment? When do limited applications aggregate? Can applications be rescinded?

For the reasons that follow, I think it is unlikely that federal courts will follow Freeman’s reasoning with respect to several of the justiciability issues considered in that case. More broadly, I don’t think they will be as hospitable to the idea of Article V questions being resolved by the judicial branch.


Freeman begins the justiciability analysis with the question of standing, noting, fairly enough, that “the standing doctrine has proven to be one of the most intricate, troublesome, and confusing aspects of modern constitutional law.” 529 F. Supp. at 1117. To establish standing, it must be determined that (1) the plaintiff has personally suffered an injury (as opposed to a generalized grievance common to the population at large); (2) the injury is to an interest protected by the relevant law; and (3) that the injury was caused by the defendant and/or can be redressed by relief against the defendant. Id. at 1117-18.

With respect to the plaintiffs, Freeman found that the individual Idaho legislators had standing because they had voted for ratification of the ERA with the understanding that the ratification period would be seven years and had later voted to rescind that ratification. Relying on the authority of Coleman and the D.C. Circuit’s decision in Kennedy v. Sampson, 511 F.2d 240 (D.C. Cir. 1974), the court concluded that the Idaho legislators had suffered a judicially cognizable injury when their votes were “nullified” by the refusal to give effect to the seven-year deadline and the failure to recognize Idaho’s act of rescission. Id. at 1120-21.

It should be noted that this aspect of the court’s analysis, while reasonable enough at the time, has been superseded by the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811 (1997), in which the Court held that individual legislators did not have standing to assert institutional injuries such as vote nullification. On the other hand, Raines leaves open the question of whether and when the legislative body itself may have standing to assert such injuries, and subsequent cases have tended to support such institutional standing. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. __ & n. 13 (2015) (holding that Arizona legislature had standing to challenge the constitutionality of a state constitutional provision removing its authority to draw congressional election districts and vesting that authority in an independent commission); U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2015) (holding that House of Representatives has standing to challenge executive branch’s violation of the Appropriations Clause); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 68 (D.D.C. 2008) (holding that congressional committee has standing to enforce subpoena); see also Windsor v. United States, 570 U.S. __ (2013) (“[I]n the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.”) (Alito, J., dissenting); U.S. Dept of Commerce v. U.S. House of Representatives, 525 U.S. 316, 364-65 (1999) (“House of Representatives has standing to challenge the validity of the process that will determine the size of each State’s congressional delegation.”) (Stevens, J., dissenting). Thus, it seems likely, though not certain, that current standing law would permit the Idaho legislature, or one house thereof, to assert the claims at issue in Freeman.

The bigger problem with Freeman’s standing analysis relates to the identity of the defendant and the court’s ability to grant effect relief. The lawsuit was brought against the Administrator of the General Services Administration, an agency generally known for things like furnishing and maintaining federal buildings. However, a federal statute at the time also gave the GSA Administrator a role with regard to ratification of constitutional amendments. Under this law, whenever GSA received “official notice” that “any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution,” the GSA Administrator “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.” (These duties are now assigned to the Archivist of the United States. See 1 U.S.C. § 106b).

The plaintiff alleged that the statute invested the GSA Administrator with a “discretionary function in determining whether a ratification has been made in ‘accord[ance] [with] the provisions of the Constitution.’” 529 F. Supp. at 1121. For purposes of the standing analysis, the court accepted this allegation as true and on that basis concluded “there would exist a direct causal link between [the Administrator’s] actions of not giving full effect to the rescission and the impairment of the plaintiffs’ vote.” Id. Further, the court found “the plaintiffs’ alleged injury can be redressed by a declaration by this Court regarding the constitutionality of the various acts of rescission and extension.” Id.

This reasoning strikes me as dubious, to put it charitably. In the first place, the court’s approach of “assuming” the legal conclusion that the Administrator’s function was discretionary, simply because the plaintiffs so alleged, seems like simple error. (By that reasoning, the plaintiffs could have sued anyone). The assumption is also surely wrong. Nothing in the statute suggests, nor does it seem likely Congress intended, that the Administrator exercise discretion as to whether a particular ratification was valid. A far more reasonable interpretation is that the Administrator was to perform the ministerial function of collecting the “official notices” of ratification from the states and then to certify once notices had been received from three-quarters of the states. To be sure, it is unclear what the Administrator is supposed to do when he receives a rescission, but that omission in the statute hardly suggests that the Administrator is supposed to exercise his “discretion” as to the constitutional question of whether rescissions are effective under Article V (something rather outside the Administrator’s area of expertise).

Put another way, no one would seriously argue that the Administrator of GSA (or the National Archivist today) gets to decide whether a constitutional amendment has been validly ratified. The Administrator’s certification and publication of an amendment may be of some practical/political significance (see the discussion of the Congressional Pay Amendment below), but it is not a legal judgment to which anyone is expected to defer.

Consider the Congressional Pay Amendment (CPA), which ultimately was adopted as the 27th amendment. The CPA, which limits congressional pay raises, was proposed by Congress in 1789, but remained unratified for over two centuries. When states began submitting additional ratifications in the 1980s, many legal scholars argued that an amendment which had been dormant for so long was no longer constitutionally eligible for ratification. When in 1992 the number of states ratifying the amendment reached (and then exceeded) 38, however, the National Archivist decided that his duty under 1 U.S.C. § 106b was to certify and publish the amendment. See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 Fordham L. Rev. 497, 540 (1992) (“The task of certifying an amendment extends only to determining whether the state certificates of ratification meet the requirements of Article V and whether the certificates set forth congruent texts of the amendment.”).

Some members of Congress did not believe it was appropriate for the Archivist to certify the amendment without congressional approval. Senate Majority Leader Robert Byrd summoned the Archivist, Don Wilson, to the Hill and warned him not to act precipitously:

“Byrd was very adamant about it,” Wilson said. “But all I could do is say that 38 states had passed the amendment. If I challenged that, I would be interpreting the Constitution, and I didn’t think that was a role that was appropriate.”

John Heltman, “27th Amendment or Bust,” The American Prospect (May 30, 2012).

There was clearly a substantial constitutional issue regarding the staleness of the CPA. No one, including the Archivist himself, though it was the Archivist’s function to make a determination regarding this issue. The only question was whether he should hold off certifying the amendment until Congress made such a determination. Wilson, however, believed he had a “bureaucratic obligation” to go forward, and he certified and published the amendment despite Byrd’s warning. Id.

Following the Archivist’s action, there was controversy in Congress. Some members, including Byrd and Senator Charles Grassley, suggested that only Congress could determine whether an amendment had been validly adopted, particularly with regard to the issue of timeliness. Bernstein, 61 Fordham L. Rev. at 540. Moreover, “Byrd and Grassley reproved the Archivist for not following the former custom of sending notification to the House and the Senate and allowing Congress a brief time to review the documents related to the amendment in question before certifying it.” Id. at 540-41. For obvious political reasons, however, virtually no members were willing to oppose the CPA on its substance, and Congress ultimately voted by overwhelming margins to confirm the adoption of the CPA as the 27th Amendment.

Note that if Freeman’s standing theory were correct, any member of Congress (who could have plausibly alleged a direct and personal injury from the CPA) could have sued the Archivist to prevent him from certifying the CPA. Indeed, arguably a member could still bring such a case today, alleging that the Archivist improperly certified the amendment because it had lapsed from the passage of time. Yet it is difficult to imagine a court accepting the argument that the Archivist caused the plaintiff’s injury simply by performing the ministerial duty of certifying and publishing the amendment. This would be akin to arguing that the Clerk of the House “causes” an injury by engrossing an unconstitutional statute.

In short, I think it unlikely that federal courts will embrace the Freeman theory that the validity of the constitutional amendment process can be challenged in a suit against an official like the Archivist (or his predecessor) who merely performs a ministerial duty such as counting ratifications and publishing an amendment. It should also be noted that currently there is no official who has an analogous function with respect to applications for an Article V convention, although the Clerk of the House has recently been given the responsibility of publishing new applications as they are received.


Freeman’s standing analysis was premised on the GSA Administrator’s authority to certify the ratification of the ERA once notice was received that 38 states had ratified. However, even if one counted Idaho’s ratification and those of other rescinding states, the Administrator had not received notice of ratification from 38 states at the time Idaho brought its lawsuit (and indeed he never would). Therefore, the Administrator argued that “questions such as those raised by this litigation are not ripe until three-fourths of the states have acted in ratifying.” 529 F. Supp. at 1123.

The court rejected this ripeness argument, stating that “[w]hatever the logical appeal this argument might have, the Court is not at liberty to accept this approach in light of the overwhelming caselaw to the contrary.” Id. at 1123. Puzzlingly, however, none of the cases cited by the court discuss ripeness and most do not even involve challenge to an amendment before ratification was complete.

In one of the cases cited by the court, Hawke v. Smith, No. 1, 253 U.S. 221 (1920), the plaintiff was a citizen and taxpayer of Ohio who sought to enjoin Ohio officials from spending public money on a referendum on the question of ratifying the 18th Amendment, which had already been ratified by the Ohio legislature. The plaintiff argued (and the Court agreed) that Ohio lacked the authority under Article V to require a referendum as a binding part of the ratification process. Because the plaintiff’s alleged injury stemmed from the action of state officials in preparing for and conducting the referendum, no issue of ripeness was presented. Furthermore, given that the 18th Amendment had already been proclaimed to be ratified (including Ohio as one of the ratifying states), it is difficult to see how the Freeman ripeness issue could possibly have arisen.

In Hawke v. Smith, No. 2, 253 U.S. 231 (1920), the Court reached the same result in a companion case presenting the same question, “the only difference being that the amendment involved is the proposed Nineteenth Amendment to the Constitution extending the right of suffrage to women.” Although the 19th Amendment had not yet been proclaimed as ratified, the case would presumably have been ripe, as in Hawke v. Smith, No. 1, because the injury was the spending of public money on an unconstitutional referendum. In any event, the brief opinion in Hawke v. Smith, No. 2 makes no mention of ripeness.

Of the “overwhelming caselaw” cited by Freeman, the case coming the closest to discussing ripeness is Coleman v. Miller, 307 U.S. 433 (1939). As we have discussed, in Coleman the Kansas state legislators who voted against ratification of the Child Labor Amendment brought suit against state legislative and executive officials to enjoin them from validating, authenticating or transmitting the amendment. The injury claimed and relief sought was thus similar to that in Freeman, except that in Coleman the relief sought was at the state rather than federal level.

Although Coleman does not directly discuss ripeness, the plurality opinion states:

The precise question as now raised is whether, when the legislature of the state, as we have now 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.

Coleman, 307 U.S. at 450. Note that the “Secretary of State” here refers to the federal cabinet officer (although the case also involves the Secretary of Kansas) because this was the official charged with the duty later transferred to the GSA Administrator and then to the National Archivist.

The Coleman Court’s observation that it was being asked to prevent the question of the validity of Kansas’s ratification “from coming before the political departments” might suggest that it viewed the relief sought as premature. After all, it might never be necessary for the political departments to decide the issue (if, as turned out to be the case, there were an insufficient number of ratifications even if Kansas was counted) or the political departments might decide the question in favor of the Coleman plaintiffs. Had the Coleman Court followed this reasoning to its logical conclusion, it might have disposed of the entire case on the ground that judicial review would be premature until the political departments had acted. Instead, the Court seemed to indicate that certain questions would be decided solely by Congress without judicial review at any time.

The Freeman court’s suggestion that it was bound by precedent to reject the ripeness argument is without merit. Even if Coleman is viewed as implicitly holding that at least some of the claims in that case were ripe, the Freeman case is distinguishable. The basis of the claim in Freeman was the duty of a federal official, the GSA Administrator, to certify an amendment, in contrast to the situation in Coleman, which involved the duties of state officials to certify ratification by the state legislature. In contrast to Coleman, where the preconditions for performing the duties of the state officials had already occurred, those preconditions (i.e., purported ratification by 38 states) to the exercise of the GSA Administrator’s duty had not yet occurred.

Indeed, as illustrated by the Supreme Court’s ultimate disposition of Freeman, the preconditions for triggering the duty of the GSA Administrator never did occur. The Supreme Court initially granted the defendants’ petition for a writ of certiorari before judgment and stayed the judgment of the district court. See NOW v. Idaho, 455 U.S. 918 (1982). When the (extended) deadline for ratification expired on June 30, 1982, the Justice Department, on behalf of the GSA Administrator, argued that the case was moot because no additional ratifications were received after the original seven-year period:

Consequently, the Amendment has failed of adoption no matter what the resolution of the legal issues presented here, and the Administrator informs us that he will not certify to Congress that the Amendment has been adopted. Even if the ratifications remain valid, the rescissions are disregarded, and Congress is conceded the power to extend the ratification period as it did here, only 35 of the necessary states can be regarded as having ratified the Amendment. If appellee-respondents were to prevail on all issues, fewer than 35 states would be counted as having ratified the Amendment, and the Amendment would be regarded having failed of adoption in March 1979. But the date on which the proposed Amendment failed of adoption, and the extent to which it fell short of the necessary three-fourths of the states, do not affect the legally cognizable interests of any party.

The Supreme Court agreed. NOW v. Idaho, 459 U.S. 809 (1982) (“Upon consideration of the memorandum for the Administrator of General Services suggesting mootness, filed July 9, 1982, and the responses thereto, the judgment of the United States District Court for the District of Idaho is vacated and the cases are remanded to that court with instructions to dismiss the complaints as moot.”).

It should be noted that if the “legally cognizable interests” of Idaho legislators were not harmed unless and until the GSA Administrator certified the ERA as adopted, it follows that their injury was not yet ripe at the time the lawsuit was brought. The Supreme Court’s dismissal of the case as moot thus implicitly rejects the district court’s ripeness analysis.

It seems clear, however, that the Freeman court was not interested in the path of judicial modesty. In a revealing passage, the court explains why it considers the dispute to be ripe:

Considering the question of the propriety of the extension resolution passed by Congress, the plaintiffs, the Idaho legislators, exercised their authority under article V by enacting a ratification resolution which is good for only the seven-year period originally proposed by Congress. The congressional act extending the ratification period continues Idaho’s ratification into a period to which it has not consented thus contravening the asserted intent of their ratification. Both the parties have exercised what they argue are their powers granted under Article V, and there is no subsequent act necessary to bring the question of extension into issue. The Idaho plaintiffs have acted to ratify for the seven-year period and Congress has abrogated that vote by extending it beyond the period intended by those ratifying, thus, since the extended period began, Idaho has had a continuing injury that is ripe for judicial resolution.

Freeman, 529 F. Supp. at 1123 (emphasis added).

Essentially, the court is saying that there is a ripe controversy between “the parties” (by which it seems to mean Congress and the Idaho legislators) as to whether Congress can extend the ratification period. Rather than waiting to determine whether this controversy would be material to the adoption of the ERA, the court believed that it should immediately resolve the dispute between the federal and state legislatures, using the GSA Administrator as a stand-in for Congress. This approach would seem to be the very opposite of the deference to the political departments called for by Coleman.

Political Question

Having disposed of the standing and ripeness issues, the Freeman court turned to the political question doctrine. Given its treatment of the prior justiciability issues, no spoiler alert is needed with respect to the court’s ultimate decision to reject the applicability of that doctrine to the case before it. Perhaps recognizing that Coleman v. Miller posed a significant obstacle to judicial review of claims related to Idaho’s ratification of the ERA, the court devoted about half of its entire opinion to explaining why the political question doctrine did not bar it from reaching the merits of the case. See Freeman, 529 F. Supp. at 1124-47.

The most persuasive part of the court’s analysis is its refutation of Justice Black’s Coleman concurrence with respect to the role of Congress in the constitutional amendment process. As the court points out, neither the text of Article V nor its intended purpose supports the conclusion that Congress is to have complete or exclusive control over the amendment process. See 529 F. Supp. at 1126 (“giving plenary power to Congress to control the amendment process runs completely counter to the intentions of the founding fathers in including article V with its particular structure in the Constitution”). This observation holds true for both congressional proposed amendments and those proposed by an Article V convention, but it is even stronger in the latter case because the Article V convention was designed specifically to circumvent Congress. See id. at 1131-32.

It does not necessarily follow, however, that the federal courts should intervene to decide disputes between the state legislatures and Congress with regard to constitutional amendments. Freeman reasoned:

[I]t is evident from the balance struck between the two participants in the amendment process that the framers did not intend either of those two parties to be the final arbiter of the process. It seems more logical that the courts, as a neutral third party, and having the responsibility of “guardian of the Constitution” decide these questions raised under article V because the amending power was split between Congress and the states.

Id. at 1135.

The assertion that the federal courts constitute a “neutral third party” in disputes between Congress and the state legislatures assumes facts not in evidence. The court’s assumption may seem benign in the context of the case before it, where the states were seeking the assistance of the federal courts. In the long run, however, federal courts are likely to lean in the direction of federal power, thereby potentially undermining state autonomy and authority under Article V. At the least, caution would seem warranted before the courts intervene.

Freeman’s analysis of existing case law is also questionable. The court begins with the proposition that “in accordance with the holding in Dyer and the overwhelming precedent established in the case law arising under article V, the position by the defendant [the GSA Administrator] that the Congress is empowered to decide all issues concerning the amendment process is clearly foreclosed, leaving this Court with the more difficult question of determining the various allocations of power under article V and the areas wherein judicial review is precluded.” 529 F. Supp. at 1126. What is this “overwhelming precedent” referred to? It appears to consist of little more than Dyer, which concluded that Justice Black’s Coleman concurrence was implicitly rejected by the Coleman “majority” (such as it was), and pre-Coleman cases such as Dilon v. Gloss, 265 U.S. 368 (1921), and Leser v. Garnett, 258 U.S. 130 (1922), which assumed justiciability but did not discuss the political question doctrine at all. While it is reasonable to view these authorities, on balance, as supporting a more nuanced view of the political question doctrine than that advocated by Justice Black, it is an overstatement to suggest that Black’s position is “clearly foreclosed” by “overwhelming precedent.”

Freeman’s reading of Chandler v. Wise, 307 U.S. 474 (1939), is also peculiar. That case, a companion to Coleman, arose out of Kentucky’s purported ratification of the Child Labor Amendment. As in Coleman, legislative opponents of ratification argued that Kentucky’s act was barred both by the passage of time and by the legislature’s prior rejection of the amendment. However, the Supreme Court held that because the Governor had certified the ratification to the appropriate federal official (the Secretary of State) before being served with the lawsuit, “there was no longer a controversy susceptible of judicial determination.”

Freeman appears to read this language as meaning that once the ratification was certified to the Secretary of State, it was binding on Congress, as well as on the courts. See 529 F. Supp. at 1135. But Coleman clearly states that the questions raised in Chandler (i.e., passage of time and prior rejection) are for Congress, not the courts, to decide. The only reasonable interpretation of Chandler is that even if the plaintiffs had raised a challenge susceptible of judicial determination, it would have been too late to do so once the Governor certified the ratification.

It should be noted that Chandler was in the same procedural posture as Freeman (a challenge to ratification after certification was made), except that in the former case the suit was brought against state officials. Nothing in Chandler, however, suggests that the case would have been justiciable had it been brought against the Secretary of State instead. If anything, the Court’s broad language (that there is “no longer a controversy susceptible of judicial determination”) suggests the opposite.

The most serious deficiency in Freeman’s analysis of the case law relates to Coleman’s treatment of the issues of rejection (a state legislature’s prior vote against an amendment followed by a subsequent vote for ratification) and rescission (a state legislature’s attempted withdrawal of a prior ratification). Only rejection was an issue in Coleman, where the Kansas legislature had voted against the Child Labor Amendment in 1924 and then for it in 1937. Nonetheless, Coleman’s reasoning embraced both issues. Relying on how Congress had dealt with questions of rescission and rejection in connection with the 14th Amendment, the Court declared:

We think that, in accordance with this historic precedent, the question of the efficacy of ratifications by state legislatures, in 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.

Coleman, 307 U.S. at 450 (emphasis added).

Despite this clear statement by the Supreme Court, the district court in Freeman found that it was not bound to follow the Court’s reasoning. It contended that the Court’s statement was dicta because no rescission was involved in Coleman. Technically this may be correct, but it is highly unusual for a district court to disregard such direct and unambiguous guidance from the Supreme Court.

Freeman also concluded that Coleman was wrong in suggesting that Congress had in fact made a decision with regard to the validity of rescissions. Reviewing the same historical record as Coleman had with respect to the ratification of the 14th Amendment, it determined that “Congress has not come to any conclusion regarding the question of rescission.” 529 F. Supp. at 1144. Thus, “even if the Court felt compelled to defer to a decision made by Congress, it would be impossible to do so.” Id. at 1144-45. Recognizing that Coleman had held rejections to be a political question, Freeman concluded that rescissions and rejections were analytically distinct, though its reasoning seems to have little relationship to the Court’s opinion in Coleman.

Had Freeman not been vacated as moot, one imagines it would have not received a warm reception in the Supreme Court. Whether or not its reasoning on the political question doctrine makes sense as an original matter, it is difficult to escape the impression that the district court took upon itself to overrule Coleman.


In the final analysis, Freeman did not merely slip out from under the apparent precedential effect of Coleman. It effectively adopted the exact opposite of Coleman’s approach. While Coleman ruled that certain questions were exclusively for Congress to decide, Freeman found that the question of rescission should not even be answered by Congress in the first instance. It insisted on deciding that all rescissions were valid, even though Congress (according to the district court itself) had not yet made a decision one way or the other on the question. Moreover, it did so knowing that its decision could not bind Congress with respect to Idaho’s ratification or any other.

Assuming the district court was free to disregard Coleman, the prudent approach would have been to leave the issue of rescission to another day. Only if the ERA received a sufficient number of purported ratifications and Congress decided to accept ratifications that had been subsequently rescinded would there ever have been a need for a court to rule on the issue. Freeman disregarded normal rules of justiciability to issue what was in effect a short-lived advisory opinion. It seems unlikely that federal courts will follow its lead on justiciability issues in the future. Moreover, for cases involving the calling of an Article V convention, the absence of an official with an analogous function to the GSA Administrator would make it difficult to use Freeman’s theory of justiciability in any event.

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