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United States District Court, Northern District of Illinois, E.D

February 20, 1975


Before Stevens, Circuit Judge, Hoffman, Senior District Judge, and Parsons, District Judge.

The opinion of the court was delivered by: Stevens, Circuit Judge.


The question presented in each of these cases is whether action taken during the 78th General Assembly of the Illinois legislature constituted "ratification" of the proposed Equal Rights Amendment to the United States Constitution within the meaning of article V of that instrument.*fn1 That amendment received a favorable vote of more than a majority but less than three-fifths of the members of each house of the Illinois legislature. The question arises because the precise meaning of the term "ratified" has not yet been given a federal definition, but the Illinois State Constitution, as well as a rule adopted by the Illinois House of Representatives and a ruling of the President of the Illinois Senate in the 78th General Assembly, have prescribed a three-fifths majority requirement for amendment to the federal Constitution.

We first more fully describe the manner in which the issue arose and identify the specific motions which are before us; we next explain why we believe the question is justiciable, notwithstanding defendants' argument that it is a "political question"; we then explain our understanding of the term "ratified" as used in article V; and finally we decide whether Illinois ratified the proposed Equal Rights Amendment during the 78th General Assembly.


On March 22, 1972, Congress approved the proposed 27th Amendment to the Constitution and submitted it for ratification to the legislatures of the states:

    Resolved by the Senate and House of Representatives
  of the United States of America in Congress assembled
  (two-thirds of each House concurring therein), That
  the following article is proposed as an amendment to the
  Constitution of the United States, which shall be
  valid to all intents and purposes as part of the
  Constitution when ratified by the legislatures of
  three-fourths of the several States within seven
  years from the date of its submission by the


    Section 1. Equality of rights under the law shall
  not be denied or abridged by the United States or by
  any State on account of sex.

    "Sec. 2. The Congress shall have the power to
  enforce, by appropriate legislation, the provisions
  of this article.

    "Sec. 3. This amendment shall take effect two years
  after the date of ratification."

H.J.Res. 208, 86 Stat. 1523 (1972).

Article XIV, § 4 of the Illinois Constitution of 1970 provided, for the first time,*fn2 explicit procedures for the Illinois General Assembly to approve amendments to the United States Constitution:

  § 4. Amendments to the Constitution of the United

    The affirmative vote of three-fifths of the members
  elected to each house of the General Assembly shall
  be required to request Congress to call a Federal
  Constitutional Convention, to ratify a proposed
  amendment to the Constitution of the United States,
  or to call a State Convention to ratify a proposed
  amendment to the Constitution of the United States.
  The General Assembly shall not take action on any
  proposed amendment to the Constitution of the United
  States submitted for ratification by legislatures
  unless a majority of the members of the General
  Assembly shall have been elected after the proposed
  amendment has been submitted for ratification. The
  requirements of this Section shall govern to the
  extent that they are not inconsistent with
  requirements established by the United States.

No action was taken on the ratification of E.R.A. by the Illinois House of Representatives during the 77th General Assembly, which expired on January 9, 1973. As Representative Juckett explained, this was in keeping with the "waiting period" provision of article XIV, § 4.*fn3 On May 24, 1972, however, the Senate of the 77th General Assembly did vote on Senate Joint Resolution 62, the E.R.A. The resolution received 30 affirmative votes with 21 members opposed and one voting "present," a constitutional majority*fn4 of the 59 Senate members but six votes short of three-fifths. The Journal of the Senate reports that, on this vote, "The motion prevailed and the resolution was adopted. Ordered that the Secretary inform the House of Representatives thereof and ask their concurrence therein." Journal of the Illinois Senate 6227 (1972).*fn5

At the outset of the 78th General Assembly, on February 1, 1973, the Illinois House of Representatives adopted rules to govern the ratification of constitutional amendments. Rule 42 provided:

  42. Resolutions Concerning Proposed Constitutional

  (a) Resolutions proposing any changes in the
  Constitutions of the State of Illinois or the United
  States shall be so designated and numbered

  (b) Such resolutions shall be read once in full and
  assigned to committee in the manner provided in Rule

  (c) Such resolutions shall be read in full a second
  and third time on different days and reproduced and
  placed on the members' desks before the vote is taken
  on final passage.

  (d) No such resolution shall pass except upon an
  affirmative vote of 107 members.

  (e) The provisions of this rule may be suspended only
  upon an affirmative vote of 107 members.

An attempt on that date by Representative Catania, one of the plaintiffs herein, to amend Rule 42 to require only 89 votes, a constitutional majority, for the ratification of amendments to the federal Constitution was withdrawn and referred to the House Rules Committee.*fn6

Subsequently, on April 4, 1973, House Resolution 176, which would have amended Rule 42 in that respect, was reported favorably by the Rules Committee, but was defeated by the full House 69-90.*fn7 Debate over this Resolution centered on an opinion that Illinois Attorney General William Scott had given then Speaker of the House W. Robert Blair on May 11, 1972, that article XIV, § 4 of the Illinois Constitution, insofar as it required both a three-fifths vote and a waiting period, was in conflict with articles V and VI of the federal Constitution and, consequently, of no effect.*fn8 Proponents of the amendment to Rule 42 relied heavily on this opinion.*fn9 Opponents felt that the plain language of the Illinois, Constitution must govern until such time as a court determined that such a conflict with the federal Constitution existed.*fn10

Thus, on April 4, 1973, Speaker W. Robert Blair ruled that a three-fifths vote would be necessary to pass the resolution ratifying E.R.A. When that vote was taken that day, House Joint Resolution 14 received 95 votes, with 72 members voting "no" and 2 "present." Consequently, E.R.A. received more than the 89 votes necessary for a constitutional majority but fewer than the 107 votes needed to reach the three-fifths requirement. Blair ruled that the resolution had failed to pass.*fn11

On May 8, 1973, four members of the House of Representatives filed the Complaint in case No. 73 C 1183 alleging, in Count I, that article XIV, § 4 of the Illinois Constitution was void and of no effect under articles V and VI of the federal Constitution. Plaintiffs sought the convening of a three-judge court, a declaratory judgment that the Illinois Constitution's three-fifths vote requirement was null and void and of no legal effect, and an injunction enjoining Blair from applying or enforcing article XIV, § 4. In Count II, plaintiffs alleged that the 107-vote requirement contained in House Rule 42(d) was derived from article XIV, § 4, and that that requirement was similarly void and unenforceable as in contravention of article V of the federal Constitution. As in Count I, the convening of a three-judge court, a declaratory judgment and a prohibitory injunction against Blair were sought. In addition, however, plaintiffs sought a mandatory injunction directing Blair to sign, authenticate and certify the passage of House Joint Resolution 14, the E.R.A.

Defendant Blair, represented by Attorney General Scott, moved to dismiss the complaint alleging, inter alia, that plaintiffs lacked standing to bring the action,*fn12 that the court lacked jurisdiction over the subject matter and that suit could not be brought against the Speaker of the Illinois House of Representatives,*fn13 and that article V of the United States Constitution does not prescribe the manner in which a state legislature shall ratify proposed amendments to the Constitution. Plaintiffs moved for summary judgment on both counts of their complaint. Fifteen members of the Illinois House of Representatives sought leave to file a brief as amici curiae in opposition to plaintiffs' motion for summary judgment.

On May 21, 1974, after oral argument, we granted defendant's Motion to Dismiss and denied plaintiffs' Cross-Motion for Summary Judgment.*fn14 We concluded that the ratification process began anew with the convening of the 78th Session of the General Assembly, and that no action had been requested of, or taken by, the Illinois Senate during that Session. Thus, we held that the issue presented us by plaintiffs was not yet ripe for review.

  Until the entire Legislature, including both of its
  Houses, has acted, the question whether its action,
  whatever form it may have taken when completed,

  will constitute "ratification" cannot appropriately
  be addressed by us.

Memorandum and Order, May 21, 1974, at 7.

On May 31, 1974, plaintiffs presented their first Motion to Vacate Order of May 21, 1974, and for Summary Judgment on Counts I and II, alleging that on May 21, 1974, Senate Joint Resolution No. 68 (E.R.A.) was introduced and voted on in the Illinois Senate.

President of the Senate William Harris, relying on article XIV, § 4 of the Illinois Constitution, ruled that an extraordinary majority of three-fifths would be required to adopt the resolution.*fn15 Earlier in the session, the Senate had adopted Senate Rule 6, which provided that "[a]ll resolutions proposing amendments to the United States Constitution . . . may be passed only on roll call by a majority of Senators elected." According to Senator Netsch, Rule 6 had been adopted in reliance on the aforementioned Illinois Attorney General Opinion.*fn16 At the conclusion of debate, a roll call vote on S.J.R. 68 was taken.*fn17 Before the results of the roll call were announced, however, Senator Saperstein, who had moved the adoption of the measure, moved to postpone consideration; the motion carried, and the Senate adjourned.*fn18

We denied plaintiffs' Motion to Vacate in our Memorandum and Order of June 5, 1974, in light of the fact that no official vote of the Illinois Senate had taken place on May 21, 1974. We concluded that the issue presented remained nonjusticiable. Consequently, we did not reach that part of plaintiffs' motion that sought summary judgment.

On July 12, 1974, plaintiffs filed their second Motion to Vacate Order of May 21, 1974, and sought Summary Declaratory Judgment on Count I of their Complaint. They noted that on June, 18, 1974, the Senate had officially voted on S.J.R. 68. The resolution received 30 votes, a constitutional majority, with 24 opposing votes, and one member voting present. As Senator Harris had once again ruled that a three-fifths vote (36) was required, however, the motion to adopt the resolution was recorded as lost.*fn19 Subsequently, plaintiffs moved for Expedited Consideration of their Motion to Vacate Order of May 21, 1974, and for Summary Declaratory Judgment on Count I of the Complaint.

We granted plaintiffs' Motion to Vacate Order of May 21, 1974, in a Memorandum and Order filed November 6, 1974, noting that the objection to ripeness had been cured by the June 18, 1974, Senate vote. We denied, however, the Motion for Expedited Consideration.

In the intervening period a second suit (No. 74 C 2822) was filed by two members of the Illinois Senate and the same four members of the Illinois House of Representatives. Speaker of the House Blair and President of the Senate Harris were named as defendants. Count I, virtually identical to Count I of the original suit, sought the convening of a three-judge court, a declaration that article XIV, § 4 of the Illinois Constitution is null and void and of no legal effect, and a prohibitory injunction enjoining Blair and Harris from applying or enforcing the constitutional provision. Count II similarly sought a three-judge court, a declaration that article XIV, § 4 and House Rule 42(d) are null and void and of no legal effect, a prohibitory injunction enjoining Blair and Harris from applying or enforcing article XIV, § 4 or Rule 42(d), and a mandatory injunction requiring Blair and Harris to sign, authenticate and certify the passage of H.J.R. 14 and S.J.R. 68, respectively.

On October 4, 1974, plaintiffs in Netsch filed a Motion to Convene Three-Judge Court and For Leave to File Instanter Plaintiffs' Motion for Partial Summary Declaratory Judgment on Count I of the Complaint. Defendants' response to Plaintiffs' Motion for Partial Summary Judgment was received, and on October 11, Judge Bauer granted the Motion to Convene Three-Judge Court. Subsequently, on October 21, 1974, it was ordered that this case be transferred to the three-judge panel that had the Dyer case under consideration. Plaintiffs filed a Motion for Expedited Consideration of Plaintiffs' Motion for Partial Summary Judgment, for Leave to File Certain Memoranda of Law, and to Set a Date for Oral Argument. Judge Hoffman, acting for the three-judge court, on October 21, 1974, took the Motion for Expedited Consideration under advisement, granted plaintiffs leave to file the memoranda, and denied the motion to set a date for oral argument.

Consequently, the following motions are as yet undecided in these two related cases: in Dyer, the Motion for Summary Declaratory Judgment on Count I of the Complaint; in Netsch, the Motion for Partial Summary Declaratory Judgment on Count I of the Complaint and the Motion for Expedited Consideration of the Motion for Partial Summary Judgment.


Defendants contend that these cases present a "political question," that is to say, a question which can only be answered by either the executive or the legislative branch of the Federal Government. The contention is supported by alternative arguments: first, that Congress has sole and complete control over the entire amending process, subject to no judicial review; and second, that even if every aspect of the amending process is not controlled by Congress, the specific issue raised in these cases is.

There is force to the first argument since it was expressly accepted by four Justices of the Supreme Court in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385.*fn20 But since a majority of the Court refused to accept that position in that case, and since the Court has on several occasions decided questions arising under article V, even in the face of "political question" contentions,*fn21 that argument is not one which a District Court is free to accept. We therefore must consider whether this particular issue is a "political question" under the standards identified in cases such as Powell v. McCormack, 395 U.S. 486, 518-519, 89 S.Ct. 1944, 23 L.Ed.2d 491, and Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663, and in Chief Justice Hughes' opinion for the Court in Coleman v. Miller, supra.

The text of the Constitution does not expressly direct Congress, rather than the judiciary, to interpret the word "ratified" as it is used in article V, or to decide whether a particular state has taken action which constitutes ratification of a proposed amendment.*fn22 Rather than relying on the "textual commitment" test for identifying a political question, defendants primarily suggest that the issue is one which may produce an unseemly conflict between coordinate branches of government unless we treat it as nonjusticiable.*fn23 We are persuaded, however, that this suggestion is foreclosed by the Supreme Court's rejection of a comparable argument in Powell v. McCormack, supra.

In that case the Court was requested to pass on the constitutionality of the refusal by the House of Representatives to seat the plaintiff, who had been duly elected from the Eighteenth Congressional District of New York, to serve in the 90th Congress. The refusal was not based on the plaintiff's failure to meet the requirements of age, citizenship and residence contained in article I, § 2 of the Constitution. The question whether the House could refuse to seat an elected representative on any ground presented, quite obviously, a far more dramatic potential for conflict between coordinate branches than does the question involved in this case. In the Powell case, after concluding that the "textual commitment" formulation of the political question doctrine did not bar federal courts from adjudicating the plaintiff's claim, the Court discussed other considerations as follows:

    Respondents' alternate contention is that the case
  presents a political question because judicial
  resolution of petitioners' claim would produce a
  "potentially embarrassing confrontation between
  coordinate branches" of the Federal Government. But,
  as our interpretation of Art. I, § 5, discloses,
  a determination of petitioner Powell's right to sit
  would require no more than an interpretation of the

  Such a determination falls within the traditional
  role accorded courts to interpret the law, and does
  not involve a "lack of the respect due [a] coordinate
  [branch] of government," nor does it involve an
  "initial policy determination of a kind clearly for
  nonjudicial discretion." Baker v. Carr, 369 U.S. 186,
  at 217, 82 S.Ct. 691, at 710 [7 L.Ed.2d 663]. Our
  system of government requires that federal courts on
  occasion interpret the Constitution in a manner at
  variance with the construction given the document by
  another branch. The alleged conflict that such an
  adjudication may cause cannot justify the courts'
  avoiding their constitutional responsibility. See
  United States v. Brown, 381 U.S. 437, 462, 85 S.Ct.
  1707, 1722, 14 L.Ed.2d 484 (1965); Youngstown Sheet &
  Tube Co. v. Sawyer, 343 U.S. 579, 613-614, 72 S.Ct.
  863, 898, 96 L.Ed. 1153 (1952) (Frankfurter, J.,
  concurring); Mysers v. United States, 272 U.S. 52,
  293, 47 S.Ct. 21, 84 [71 L.Ed. 160] (1926) (Brandeis,
  J., dissenting).

    Nor are any of the other formulations of a
  political question "inextricable from the case at
  bar." Baker v. Carr, supra [369 U.S.] at 217, 82
  S.Ct. [691] at 710. Petitioners seek a determination
  that the House was without power to exclude Powell
  from the 90th Congress, which, we have seen, requires
  an interpretation of the Constitution — a
  determination for which clearly there are
  "judicially . . . manageable standards." Finally, a
  judicial resolution of petitioners' claim will not
  result in "multifarious pronouncements by various
  departments on one question." For, as we noted in
  Baker v. Carr, supra, at 211, 82 S.Ct. [691], at 706
  it is the responsibility of this Court to act as the
  ultimate interpreter of the Constitution. Marbury v.
  Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803).
  Thus, we conclude that petitioners' claim is not
  barred by the political question doctrine, and having
  determined that the claim is otherwise generally
  justiciable, we hold that the case is justiciable.

395 U.S. at 548-549, 89 S.Ct. at 1978 (footnote omitted).

The Court's reasoning in Powell v. McCormack requires a similar conclusion in this case. Decision of the question presented requires no more than an interpretation of the Constitution. Such a decision falls squarely within the traditional role of the federal judiciary to construe that document.*fn24 The possibility that such an adjudication may conflict with the views of Congress cannot justify the courts' avoiding their constitutional responsibility. As the Supreme Court pointedly noted in its citation of McPherson v. Blacker, 146 U.S. 1, 24, 13 S.Ct. 3, 36 L.Ed. 869, the possibility that action might be taken in disregard of a final judicial determination is an "inadmissible suggestion."

The strongest argument for regarding the issue presented by these cases as a "political question" rests on an asserted "lack of judicially discoverable and manageable standards for resolving it." See Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710. That argument is buttressed by the holding in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 that the question whether the lapse of 13 years between the proposal of an amendment and the favorable action by the Kansas legislature made the ratification ineffective was a "political question" to be finally determined by Congress.*fn25

That holding was based on the absence of any acceptable criteria for making a judicial determination of whether the proposed amendment had lost its vitality through lapse of time. The Court noted that different periods might be reasonable for different proposed amendments and that varying economic or social conditions might support differing conclusions. Such considerations, although entirely acceptable as a predicate for decision by political departments of the government, might be wholly inappropriate as a basis for judicial decision.*fn26

Although the issue in these cases is somewhat comparable to the lapse of time issue in Coleman in that the criteria for judicial determination are, perhaps, equally hard to find, the answer does not depend on economic, social or political factors that vary from time to time and might well change during the interval between the proposal and ratification. A question that might be answered in different ways for different amendments must surely be controlled by political standards rather than standards easily characterized as judicially manageable.

It is primarily the character of the standards, not merely the difficulty of their application, that differentiates between those which are political and those which are judicial. The mere fact that a court has little or nothing but the language of the Constitution as a guide to its interpretation does not mean that the task of construction is judicially unmanageable. Consider, for example, the Supreme Court's comments in Dillon v. Gloss on the problem of deciding whether or not a ratification was timely:

    It will be seen that this article says nothing
  about the time within which ratification may be
  had. . . . Neither the debates in the federal
  convention which framed the Constitution nor those in
  the state conventions which ratified it shed any
  light on the question.

    That the Constitution contains no express provision
  on the subject is not in itself controlling [with
  regard to

  merits]; for with the Constitution, as with a statute
  or other written instrument, what is reasonably
  implied is as much a part of it as what is expressed.

256 U.S. at 371, 41 S.Ct. at 511 (footnote omitted).

We are persuaded that the word "ratification as used in article V of the federal Constitution must be interpreted with the kind of consistency that is characteristic of judicial, as opposed to political, decision making. We conclude, therefore, that whatever the word "ratification" means as it is used in article V, that meaning must be constant for each amendment that Congress may propose. We turn, then, to the problem of ascertaining the meaning of that term.


The power of a state legislature to ratify an amendment to the federal Constitution is derived from that instrument. By virtue of the supremacy clause in article VI,*fn27 it is clear that the legislature's ratifying function may not be abridged by a state. Mr. Justice Brandeis, speaking for a unanimous court in Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505, made this point abundantly clear.

    The second contention is that in the Constitutions
  of several of the 36 states named in the proclamation
  of the Secretary of State there are provisions which
  render inoperative the alleged ratifications by their
  Legislatures. The argument is that by reason of the
  specific provisions the legislatures were without
  power to ratify. But the function of a state
  Legislature in ratifying a proposed amendement to the
  federal Constitution, like the function of Congress
  in proposing the amendment, is a federal function
  derived from the federal Constitution; and it
  transcends any limitations sought to be imposed by
  the people of a state. Hawke v. Smith, No. 1,
  253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871; Hawke v. Smith,
  No. 2, 253 U.S. 231, 40 S.Ct. 498, 64 L.Ed. 877;
  National Prohibition Cases, 253 U.S. 350, 386, 40
  S.Ct. 486, 588, 64 L.Ed. 946.

258 U.S. at 136-137, 42 S.Ct. at 217.

Quite clearly, therefore, if the federal Constitution specifies that ratification shall be accomplished in a particular way, or by a particular vote of a state legislature or a state convention, no state may superimpose a more stringent requirement on that federal specification. The difficulty presented by the cases before us, however, results from the fact that neither the Constitution itself, nor the record of the deliberations of the constitutional convention which drafted it, contains any unambiguous description or definition of what the state legislature must do in order to perform its federal ratifying function.

History teaches us that the framers of the Constitution were dissatisfied with the extraordinary difficulty of amending the Articles of Confederation.*fn28 Accordingly, there was extensive discussion and debate about article V of the new Constitution, but it is fair to state that such deliberation was concerned almost exclusively with the procedure for initiating proposed amendments,*fn29 or with the number of states which must express their assent to a proposal in order to make it effective.*fn30 We have found no evidence of any significant discussion about the procedure which a state legislature or state convention should follow in deciding whether or not to ratify a proposal.*fn31

Congress is, of course, given the power to decide whether the ratifying process should be performed by state conventions or by state legislatures, and the Supreme Court has affirmed Congress' power to prescribe a time limit within which the ratifying process must be completed.*fn32 But the Constitution is totally silent with respect to the procedure which each state convention or each state legislature, as the case may be, should follow in performing its ratifying function.

There can be no doubt about the fact that the Constitution permits many aspects of the ratification procedure to be determined by representatives of the several states. As Professor Dodd has noted:

    It should be remembered, however, that ratification
  is by state legislatures, and that although the state
  may not provide any other method of ratification or
  impose limitations upon the power to ratify, it does
  seem to be clearly within the power of the state
  through its constitution or otherwise

  to determine what shall be the organization of the
  state's representative legislative body, and what
  shall be the quorum for action by that body. It, of
  course, also rests within the power of the state
  itself as to when regular or special sessions of the
  state's representative body shall meet, and as to how
  that representative body shall be organized. Dodd,
  Amending the Federal Constitution, 30 Yale L.J. 321
  344-345 (1921).*fn33

Arguably, the vote required to effectuate a ratification might be considered a procedural matter, comparable to the determination of a quorum, subject to control by the states. Alternatively, it can be argued with equal force that since the term must have a federal definition, and since the number of votes required to ratify is a matter of critical importance, that number must be set by federal law. Theoretically, the number might be determined by at least five different standards.

First, since the entire ratification process is not effective unless three-fourths of the state legislatures have concurred, it might be inferred that a comparable fraction of each body must support a ratifying resolution. Second, it might be thought that a lesser extraordinary majority — such as the Illinois three-fifths requirement — of the legislators elected and eligible to vote would be appropriate. Or, third, an extraordinary majority of the legislators present and voting could be required. Conceivably this latter extraordinary majority might be obtained more easily than the fourth alternative, a vote of 51% of the elected legislators, a constitutional majority. And fifth, as plaintiffs argue in this case, a simple majority, a majority of a quorum — or more precisely of the legislators present when a quorum is present — may suffice.*fn34

The vote of the Kansas Legislature, which under the holding in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385, constituted an effective ratification, was 21 to 20. We may take it as decided, therefore, that an extraordinary majority is not required by federal law.*fn35 There is, moreover, some evidence that when article V was drafted the framers assumed that state legislatures would act by majority vote.*fn36 That evidence, like the text of article V itself, is equally consistent with the view that a majority of a quorum would be sufficient, or with a view that a majority of the elected legislators would be required. And, of course, it is also consistent with the view that the framers did not intend to impose either of those alternatives upon the state legislators, but, instead, intended to leave that choice to the ratifying assemblies.

This last view seems most plausible to us. If the framers had intended to require the state legislatures to act by simple majority, we think they would have said so explicitly. When the Constitution requires action to be taken by an extraordinary majority, that requirement is plainly stated.*fn37 While the omission of a comparable requirement in connection with ratification makes it quite clear that a bare majority is permissible, it does not necessarily indicate that either a simple majority or a constitutional majority must be accepted as necessary. We think the omission more reasonably indicates that the framers intended to treat the determination of the vote required to pass a ratifying resolution as an aspect of the process that each state legislature, or state convention, may specify for itself.

This conclusion is consistent with — though by no means compelled by — the underlying philosophy of the framers with regard to the respective roles of the central government and the several state governments. Madison expressed the thought in urging ratification of the Constitution in The Federalist No. 45:

    The powers delegated by the proposed Constitution
  to the federal government are few and defined. Those
  which are to remain in the State governments are
  numerous and indefinite.

The Federalist No. 45, at 303 (Modern Library ed.) (Madison). The ratifying power did not, of course, "remain in the State governments" because it was created by article V of the new Constitution. But the failure to prescribe any particular ratification procedure, or required vote to effectuate a ratification, is certainly consistent with the basic understanding that state legislatures should have the power and the discretion to determine for themselves how they should discharge the responsibilities committed to them by the federal government.*fn38

In addition, were we to conclude that article V does mandate a particular majority vote in each state legislature, we would then have to choose among the myriad of possibilities set forth above. The fact that the several states have actually adopted a wide variety of ratification requirements (see n. 34, supra) demonstrates that no one voting percentage or procedure is manifestly preferable to all others. Moreover, this history manifests a common understanding that there is no federal objection to the state legislatures' independent determination of their own voting requirements. The absence of criticism of this independent action throughout our history strongly suggests that the common understanding existed when the original Constitution was ratified and that the framers did not intend to prescribe any one of the various alternatives as mandatory.

Plaintiffs in the cases before us have argued that ratification under article V requires the use of a simple majority, or, at most, a majority of those entitled to vote, a constitutional majority. We find no principled reason for holding that either of those procedures, rather than any of the supermajority hybrids that have emerged since article V was adopted, is the one mandated by the Constitution.*fn39

Article V identifies the body — either a legislature or a convention — which must ratify a proposed amendment. The act of ratification is an expression of consent to the amendment by that body. By what means that body shall decide to consent or not to consent is a matter for that body to determine for itself. This conclusion is not inconsistent with the premise that the definition of the term "ratified" is a matter of federal law. The term merely requires that the decision to consent or not to consent to a proposed amendment be made by each legislature, or by each convention, in accordance with procedures which each such body shall prescribe.*fn40


The Supreme Court has held that a state may not inhibit its legislature's federal power to ratify a proposed amendment to the United States Constitution by requiring approval at a popular referendum;*fn41 it seems equally clear that a state constitution may not require that a new legislature be elected before the proposal may be considered.*fn42 The Illinois Attorney General has on three occasions expressed the opinion that a due regard for the federal character of the legislature's ratifying function must invalidate the Illinois constitutional requirement of a favorable vote by a three-fifths majority. See nn. 5, 8, supra.

The Attorney General's analysis is consistent with ours. We have concluded that article V delegates to the state legislatures — or the state conventions depending upon the mode of ratification selected by Congress — the power to determine their own voting requirements. The decisions of the Supreme Court, as well as the text of article V, illuminate the critical point that the delegation is not to the states but rather to the designated ratifying bodies. We do not believe that delegated federal power may be inhibited by a state constitutional provision which, in practical effect, determines whether votes of legislators opposing an amendment shall be given greater, lesser, or the same weight as the votes of legislators who favor the proposal.

In the 77th General Assembly the Illinois Senate took the position that, in the performance of its federal function, it was not inhibited by article XIV, § 4 of the Illinois Constitution and formally recorded its favorable action on the proposed Equal Rights Amendment notwithstanding the failure to obtain a three-fifths vote. In the 78th General Assembly, however, the House as well as the Senate took a different view. If our analysis of the nature of the delegated power is correct, the Illinois constitutional provision may only be precatory in its effect on the federal process, and those bodies are free to accept or to reject the three-fifths requirement.

They did accept that requirement during the 78th General Assembly. Whether they did so because of a mistaken understanding of the applicable law (notwithstanding the advice of the Attorney General of the state that they were free to disregard the limitation), or because of their decision to respect a policy choice made by the framers of their own constitution in 1970, or simply because they independently determined that the supermajority requirement would be desirable, is of no legal significance. It is clearly not our province to inquire into the individual motives of the legislators who voted in favor of the procedural rules adopted by each branch of the General Assembly to govern its own deliberations, including those relating to ratification of a proposed amendment to the federal Constitution.*fn43

In sum, we conclude that the action taken by the 78th Session of the Illinois General Assembly did not constitute an effective ratification because the resolution did not pass by the vote required by the applicable rules of procedure adopted by both houses of the legislature. This conclusion does not reflect disagreement with the contention of the plaintiffs, or the thrice-expressed opinion of the Attorney General of Illinois, that article XIV, § 4 of the Illinois Constitution of 1970 does not impose a valid restraint on the power of any session of the Illinois General Assembly to determine for itself the number of affirmative votes which will be required to ratify a proposed amendment to the Constitution of the United States.

The motions which are pending and undecided would not dispose of the entire litigation. It is apparent, however, that the record is now complete and no useful purpose would be served by further proceedings. Moreover, we are satisfied that further briefing of the legal issue would not modify the conclusion to which our research has led us. It therefore seems appropriate to enter final judgment disposing of the entire litigation.

The three-judge court was convened in each of these cases because each complaint prayed for the entry of an injunction commanding state officials to take certain action predicated on the assumption that the Illinois legislature has effectively ratified the Equal Rights Amendment.*fn44 We have concluded that plaintiffs are not entitled to such injunctive relief. The reasoning which led us to that conclusion has required us to express an opinion concerning the legal import, or lack thereof, of article XIV, § 4 of the Illinois Constitution. Since the ultimate decision of the controversy between the parties is controlled by the legislature's procedural rules, and, in final analysis, would be unaffected by the entry of a declaratory judgment declaring article XIV, § 4 invalid, such a judgment would be merely advisory in character and therefore beyond our power to enter.*fn45 Accordingly, we deny (1) the motion for summary declaratory judgment on Count I of the Dyer Complaint; (2) the Motion for Partial Summary Declaratory Judgment on Count I of the Netsch Complaint; and (3) the Motion for Expedited Consideration of the Motion for Partial Summary Judgment in the Netsch case. Finally, having determined that plaintiffs are not entitled to injunctive relief, we order that summary judgment be entered for defendants in both cases.*fn46

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