Unfortunately, Emsworth and I have had no contact from Ernest and according to his
profile, he has not been active since the 3rd. He knew of the case since Emsworth and I discussed the stay with him. Not wishing to extend this any further, Emsworth and I have decided the case in his absence. I'd like to thank Emsworth for his research of real life Supreme Court precedent on this matter.
The Chief Justice and Justice Emsworth delivered the opinion of the Court. Justice Ernest took no part in the decision of this case.Petitioner requests that we declare void the passage of the Removal of the Balanced Budget Requirement Amendment (hereinafter The Amendment), declared passed on 2 December 2005, for failing to acquire the Constitutionally required number of Senators in the Senate, and to consequently declare void the number of public polls already begun on The Amendment. Respondents contend that this court has no jurisdiction over the dispute, and that the case should accordingly be dismissed.
This case presents many questions, not only is the interpretation of a passage of text within the Constitution in question, but there is also a question surrounding who has the ultimate power to decide its meaning. The text in question is contained in
Article VII, Section 1 of the Constitution:
"The Senate, whenever two-thirds of its number shall deem it necessary, shall propose amendments to this Constitution."
There are also various passages in
Article I that will be implicated in its interpretation.
I
Whilst there is no explicit mention of a power to interpret the Constitution being granted to this Court, this does not preclude its existence. Under
Article III, Section 1, Clause 1 this Court is vested with the "judicial power of the Republic": Judicial power is synonymous with the power to be the arbiter of what the Law means; In our case this congizes the power to be the arbiter of both the Constitution and federal statute.
Similarly there is no explicitly mentioned power to enforce the Laws, however
Article II vests in the President the "executive power". This is synonymous with granting him the power to enforce the Laws, just as "judicial power" is synonymous with the power to interpret them.
The Supreme Court of the United States has, on various occasions, been called upon to decide whether a constitutional amendment was passed or ratified in the proper manner. The passage of the Eleventh Amendment, for example, was challenged in
Hollingsworth v. Virginia (1798). Similarly, various aspects of the passage or ratification of the Eighteenth Amendment were questioned in
Hawke v. Smith (1920), the
National Prohibition Cases (1920),
Dillon v. Gloss (1921), and
United States v. Sprague (1931). The ratification of the Nineteenth Amendment was considered in
Leser v. Garnett (1922).
In all of these cases, the Supreme Court agreed that the question was a judicial one, and reached its conclusions on the merits. In one of them (
Hawke v. Smith), the procedure used by a state to ratify the Eighteenth Amendment was declared unconstitutional. The fact that the Supreme Court heard and determined these cases establishes an important principle: the validity of the procedure used to pass a constitutional amendment is a legal question, not a political one.
Any question where there exists a clear textual commitment of responsibility to a co-ordinate branch of government is a political question. There are some cases where this Court has no power of review, such as the substantive nature of an Impeachment where the question of determining guilt is clearly delegated to the People, and the power to indict to the Senate.
In our case there is no such commitment: We are simply provided the plain text with no indication as to who should determine the "number" of the Senate, though there is some indication in the text as to what exactly the number of the Senate is.
Some have claimed that the Senate's power to determine its own procedures under Article I, Section 3, Clause 1 encompasses a power to determine meaning here. This is simply false: the Senate may not change the meaning of words relating to its procedures in the Constitution; A "majority" is necessary to pass a bill or resolution - this word has clear textual meaning, yet if we were to agree with the argument presented, we would grant to the Senate a power to change the meaning of the word "majority". This power is definitely not granted under the Constitution and thus the argument must fail.
The question is thus clearly judicial in nature: It involves the meaning of Constitutional text and there is no textual commitment to another branch of government. Thusly, it falls to this Court to decide its meaning, and we do so now.
II
Two rival interpretations of the clause are put forward:
1. "[T]wo-thirds of [the] number" of the Senate refers to two-thirds of the total number of Senators sworn into office at a particular time.
2. "[T]wo-thirds of [the] number" of the Senate refers to two-thirds of those voting in the particular vote.
A plain text reading indicates to us that the "number" of the Senate clearly means the former. However, the question does not end here as there are several clauses that might invalidate such a naive approach to the plain text.
In support of the second, Article I, Section 3, Clause 2 is put forward:
"The Senate shall have fulfilled a quorum if a majority of its members are capable of discharging their offices and sworn into office. A quorum of Senators shall have voted on any Resolution, Bill, Impeachment or Constitutional Amendment for it to be considered valid."
This clause however only contains conditions for the vote to be ''valid'', not what conditions are required for an Amendment, Bill, etc. to pass. Thus for example, if the Senate were reduced to a membership of just four Senators, it could not pass an Amendment (or anything else) by a vote of 4-0 even though two-thirds of the number of the Senate had proposed the Amendment (under either interpretation) because the Senate would have failed to fulfil a quorum under the quoted clause.
We are also guided by Article I, Section 2, Clause 3 which deals with the Trial Phase of an Impeachment which explicitly states that "two-thirds of those voting" are necessary for a conviction. This seems to cognize something different from "two-thirds of [the] number", further adding weight to our earlier plain text evaluation of Article VII, Section 1.
III
It is undisputed that at the time of declared passage of The Amendment that there were ten Senators in office and that only six voted for its passage. Under our reading of Article VII, seven of the ten Senators are required to pass the Amendment. Thus the Amendment failed to pass the Senate and its passage should be declared void.
Further, all of the votes cast in the public polls so far were cast on an invalid Amendment. Thusly they cannot be allowed to stand either, and we order that all public polls opened on this Amendment to this point are declared void.
If The Amendment is declared to have passed at some point in the future with a two-thirds majority of the number of Senators sworn into office, new public polls will need to be opened.
It is so ordered.
