the post-Reconstruction South to disenfranchise blacks. See S. Hackney, Populism to Progressivism in Alabama 147 (1969); C. Vann Woodward, Origins of the New South, 1877-1913, pp. 321-322 (1971). The delegates to the all-white convention were not secretive about their purpose. John B. Knox, president of the convention, stated in his opening address:

And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State. 1 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901 to September 3rd, 1901, p. 8 (1940).

Indeed, neither the District Court nor appellants seriously dispute the claim that this zeal for white supremacy ran rampant at the convention.

"A. Yes, sir, that's correct.

"Q. The phrase that is quite often used in the Conventional is to, on the one hand limit the franchise to [the] intelligent and virtuous, and on the other hand to disenfranchise those [referred] to as 'corrupt and ignorant,' or sometimes referred to as the ignorant and vicious?

"A. That's right.

"Q. Was that not interpreted by the people at that Constitutional Convention to mean that they wanted to disenfranchise practically all of the blacks and disenfranchise those people who were lower class whites?

"A. That's correct."

The evidence of legislative intent available to the courts below consisted of the proceedings of the convention, several historical studies, and the testimony of two expert historians. Having reviewed this evidence, we are persuaded that the Court of Appeals was correct in its assessment. The court's opinion presents a thorough analysis of the evidence and demonstrates conclusively that sec. 182 was enacted with the intent of disenfranchising blacks. We see little purpose in repeating that factual analysis here. At oral argument in this Court appellants' counsel essentially conceded this point, stating: "I would be very blind and naive [to] try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won't do that." Tr. of Oral Arg. 6.

In their brief to this Court, appellants maintain on the basis of their expert's testimony that the real purpose behind sec. 182 was to disenfranchise poor whites as well as blacks. The Southern Democrats, in their view, sought in this way to stem the resurgence of Populism which threatened their power:

"Q. The aim of the 1901 Constitution Convention was to prevent the resurgence of Populism by disenfranchising practically all of the blacks and a large number of whites; is that not correct?

"A. Yes, sir.

"Q. The idea was to prevent blacks from becoming a swing vote and thereby powerful and useful to some group of whites such as Republicans?

"Q. Near the end of the Convention, John Knox did make a speech to the Convention in which he summarized the work of the Convention, and in that speech is it not correct that he said that the provisions of the Suffrage Article would have a disproportionate impact on blacks, but he disputed that that would be [a] violation of the Fifteenth Amendment?

"A. Yes, sir, that is true. Repeatedly through the debates, the delegates say that they are interested in disfranchising blacks and not interested in disfranchising whites. And in fact, they go out of their way to make that point.... But the point that I am trying to make is that this is really speaking to the galleries, that it is attempting to say to the white electorate that must ratify this constitution what it is necessary for that white electorate to be convinced of in order to get them to vote for it, and not merely echoing what a great many delegates say. . . . [I]n general, the delegates aggressively say that they are not interested in disfranchising any whites. I think falsely, but that's what they say.

"Q. So they were simply trying to overplay the extent to which they wanted to disenfranchise blacks, but that they did desire to disenfranchise practically all of the blacks?

"A. Oh, absolutely, certainly." Crossexamination of Dr. J. Mills Thornton, 4 Record 73-74, 80-81.

Even were we to accept this explanation as correct, it hardly saves sec. 182 from invalidity. The explanation

concedes both that discrimination against blacks, as well as against whites, was a motivating factor for the provision and that sec. 182 certainly would not have been adopted by the convention or ratified by the electorate in the absence of the racially discriminatory motivation.

At oral argument in this Court, appellants' counsel suggested that, regardless of the original purpose of sec. 182, events occurring in the succeeding 80 years had legitimated the provision. Some of the more blatantly discriminatory selections, such as as

Discussion Notes

1. For background on the 1901 Alabama Constitution's suffrage provisions, see Malcolm Cook McMillan, Constitutional Development in Alabama, 1798-1901: A Study in Politics, the Negro, and Sectionalism (Chapel Hill: University of North Carolina Press, 1955), pp. 263-359.

2. The Court refers to state "law" when considering the validity of this state constitutional provision. Should the court approach a state con

Trombetta v. State of Florida 353 F. Supp. 575 (M.D. Fla. 1973)

Opinion and Order

HODGES, District Judge.

At the time this suit was filed the plaintiffs were members of the Florida Legislature and the Congress had just submitted for ratification by the state a proposed Twenty-Seventh Amendment to the Federal Constitution. Plaintiffs complained that legislative action on the proposed amendment was impeded by Article X, Section 1 of the Florida Constitution of 1968 (25 F.S.A. p. 729), and they sought a summary decree declaring that provision to be repugnant to Articles V and VI of the Constitution of the United States. The challenged section of the Florida Constitution prescribes:

Sec. 1. Amendments to United States Constitution. "The legislature shall not take action on any proposed amendment to the constitution of the United States unless a majority of the members thereof have been elected after the proposed amendment has been submitted for ratification.”

sault and battery on the wife and miscegenation, have been struck down by the courts, and appellants contend that the remaining crimes -felonies and moral turpitude misdemeanors-are acceptable bases for denying the franchise. Without deciding whether sec. 182 would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect. As such, it violates equal protection under Arlington Heights.

The judgment of the Court of Appeals is Affirmed.

stitutional provision with more deference than a mere state law?

3. In an earlier challenge to another provision of Alabama's constitution providing for racial exclusion of voters a lower court struck down the provision and the Supreme Court affirmed. "Mr. Justice Reed, in view of the fact that a constitutional provision of a state is involved... is of the opinion that probable jurisdiction should be noted and the case set down for argument." Davis v. Schnell, 336 U.S. 933 (1949).

II

Tracing the origin of Article X, Section 1 of the Florida Constitution is not only an interesting venture into national history, it also serves to clearly point the way to the only proper application of the Supreme Court decisions which control the constitutional issue.

During the Reconstruction Era following the Civil War the state governments within the Confederacy were subordinate to the War Department. These states were arranged in five military districts and all, except Tennessee, were placed under military rule.3 In January, 1870, the Tennessee Legislature called a convention to draft a new state constitution. The result was a redraft of the state's existing constitution with certain changes suggested by recent events4 which included, of course, the circumstances prevailing in the south at the time of the ratification of the Thirteenth, Fourteenth and Fifteenth Amendments. See Coleman v. Miller, supra. Thus, one of the additions to the Tennessee Constitution of 1870 was Article 2, Section 32, which provided as follows:

3See R. Henry, The Story of Reconstruction, at 219 (1963); E. McPherson, The United States During Reconstruction, at iii (1969).

4See Henry, at 402.

Sec. 32. Amendments to Constitution of United States. No Convention or General Assembly of this State shall act upon any amendment of the Constitution of the United States proposed by Congress to the several States; unless such Convention or General Assembly shall have been elected after such amendment is submitted."

Shortly following Reconstruction the electorate of Florida adopted this state's Constitution of 1885. Article XVI, Section 19 of that document was identical to Article 2, Section 32 of the Tennessee Constitution, and there can be no doubt that the latter inspired the former. Article XVI, Section 19 of the Florida Constitution of 1885 thereafter remained in effect until 1968 when it was slightly revised and carried forward as Article X, Section 1 of the Florida Constitution of 1968, i.e., the provision now being considered.

III

A determination of the case turns upon the application of two Supreme Court decisions, Hawke v. Smith, 253 U.S. 221, 40 S.Ct.495, 64 L.Ed. 871 (1920); and Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922).

In Hawke the plaintiff sought to enjoin the Ohio Secretary of State from preparing a ballot allowing the people to vote on the Eighteenth Amendment. The Ohio Constitution provided for a referendum on any action of the legislature ratifying a proposed amendment to the Federal Constitution. The Court held the Ohio Constitution provision to be invalid, establishing the principle that the action of a state legislature in ratifying an amendment to the Federal Constitution is a purely Federal function under Article V transcending any limitation sought to be imposed by the people of a state through their own constitution.

If Hawke was the only expression of the Court on this subject I would have no difficulty whatever in distinguishing the decision on its facts as well as in principle. The Ohio Constitution patently attempted to remove its legislature as the agent of Ohio in the ratification process, and this was correctly observed to be in direct conflict with Article V. The Florida provision, however, leaves full authority in the legislature while safeguarding the rights of a constituency to express itself concerning so vital a matter as a change in the constitution. This, to me, is not only salutary but in complete harmony with Article V. While the legislature, and only the legislature, can perform the Federal function, it necessarily acts in such capacity as the

agent of the people of the state; or, indeed, it might not act at all.5

Any effort to distinguish Hawke is rendered futile, however, by the Court's decision two years later in Leser. Ratification of the Nineteenth, Women's Suffrage Amendment had been proclaimed on August 26, 1920. A suit was then brought in Maryland to disqualify two women registrants. The thrust of the action was a wholesale attack upon the validity of the ratification of the Amendment in several states. The opinion of the Court did not particularize these contentions or specifically identify the individual states involved. Rather, it summarily disposed of the issues. as follows (258 U.S. at 136-137, 42 S.Ct. at 217):

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 these specific provisions the Legislatures were without power to ratify. But the function of a state Legislature in ratifying a proposed amendment 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. [Citing Hawke]

Thus, the Leser opinion per se adds very little to the teaching of Hawke. Examination of the precise contentions presented to the Court, however, reveals that the ratification in Tennessee was a principal target in view of Article 2, Section 32 of the Tennessee Constitution of 1870 (See 66 L.Ed. at 507-508). In net effect, therefore, the Leser Court specifically extended and applied the principle of Hawke to the very provision now embodied in Article X, Section 1 of the Florida Constitution of 1968, and it goes without saying that this Court is bound by that decision.

Article X, Section 1, of the Florida Constitution of 1968 is hereby declared to be unconstitutional and void.

5The proposed child labor amendment of 1924, for example, may yet be outstanding since Congress imposed no time limit upon ratification. See, Coleman v. Miller, supra. The present Congressional practice of specifying a limitations period of seven years upon the ratification process is obviously intended to settle amendment questions, one way or another, by a day certain; but this too is entirely consistent with the deliberative consideration contemplated by the Florida Constitution in view of the length of time allowed.

Discussion Notes

1. For the earlier procedural history of the Trombetta case, which might have led to ratification of the Equal Rights Amendment in Florida in 1972, see Trombetta v. Florida, 339 F. Supp. 1359 (M. D. Fla. 1972). See also, Note, "The Process of Constitutional Amendment," Columbia Law Review 79 (January 1979): 106.

2. Conflict with Federal Statute

State of North Carolina ex rel. Morrow v. Califano

445 F. Supp. 532 (E.D.N.C. 1977)

Opinion and Order

RUSSELL, Circuit Judge, LARKINS, Chief District Judge, and DUPREE, District Judge.

This is a suit against the Secretary of Health, Education and Welfare challenging the constitutionality of the National Health Planning and Resources Development Act of 1974, 42 U.S.C. sec. 300k et seq. (hereinafter referred to as "the Act"). The original complainant was the State of North Carolina. Later, interventions by the American Medical Association, the North Carolina Medical Society, as well as by the State of Nebraska, were allowed.

The attack by North Carolina on the Act focuses primarily on the requirement thereunder that any State, in order to qualify for financial grants under the federal health programs, should establish a State Health Planning and Development Agency, which, among other things, should "administer a State certificate of need program [satisfactory to the Secretary] which applies to new institutional health services proposed to be offered or developed within the State" and under which "only those services, facilities, and organizations found to be needed shall be offered or developed in the State." And the reason for the State's concern is found in the decision of its own Supreme Court that a certificate of need statute as required under the Act "is in excess of the constitutional power of the Legislature." In Re Certificate of Need for Aston Park Hosp., Inc., 282 N.C. 542, 193 S.E.2d 729, 733 (1973). Absent a constitutional amendment, the State argues it would be required by the challenged provision of the Act to forfeit its right to participate in some forty-odd federal financial assistance health programs. It contends that, under these circumstances, the requirement represents an

2. For a somewhat similar case in Illinois, see Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975).

3. Under the analysis in Trombetta, could a state legislature provide for a non-binding referendum on a proposed federal constitutional amendment? See Kimble v. Swackhamer, 584 P. 2d 161 (Nev. 1978), stay denied 439 U.S. 1385 (1978).

effort to compel the State to amend its constitution and thus constitutes an unconstitutional interference with the State's legislative and constitutional processes violative of the principles of federalism and state sovereignty, as guaranteed under the due process clause, the Tenth Amendment and the Guaranty Clause of Article IV, Section 4 of the Constitution.

As we have said, the primary attack of the plaintiff North Carolina relates to the certificate of need requirement in the Act. In making such an attack, the plaintiff concedes that, in the exercise of a valid spending power, the federal government may impose terms and conditions upon fiscal grants allotted by it among the states. King v. Smith (1968) 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Oklahoma v. Civil Service Comm'n (1947) 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794. Nor does the plaintiff dispute the validity of federal appropriations to promote the public health under the general welfare clause. Its attack on the certificate of need requirement is that, while Congress may attach conditions to federal grants to the states, such conditions may not be arbitrary, may not be unrelated to the legitimate purposes of federal health legislation, and may not invade the sovereign rights of states.

The Act as a whole had as one of its basic purposes the more efficient and economical uses of health services. It grew out of a Congressional concern that the many unneeded hospital beds available in the nation imposed an unnecessarily exorbitant financial burden on the furnishing of required health care, and that there was an uneven distribution of health care facilities, resulting in some areas being over supplied and others being woefully deficient.2 It sought through a national health planning policy to provide for the development of a program for dealing with the "maldistribution of health care facilities and manpower" and to "authorize financial assistance for the development of resources to further that pol

2See U.S. Code Congr. & Admn. News, 93rd Cong., 2d Sess., 1974, pp. 7878-9.

icy." An integral part of such a program was the certificate of need requirement which the plaintiff assails. The State health planning and development agency, authorized under the Act, was to "[s]erve as the designated planning agency of the State [to] *** (B) administer a State certificate of need program which [should apply] to new institutional health services proposed to be offered or developed within the State and which is satisfactory to the Secretary. Such program shall provide for review and determination of need prior to the time such services, facilities, and organizations are offered or developed ***, and provide that only those services, facilities, and organizations found to be needed shall be offered or developed in the State."4

We perceive nothing unconstitutional either in the purposes of the Act or in the condition thereby attached to health grants made to the States under federal health programs. Without question Congress in making grants for health care to the States, should be vitally concerned with the efficient use of the funds it appropriates for that purpose. It had a perfect right to see that such funds did not cause unnecessary inflation in health costs to the individual patient. It certainly had the power to attach to its grants conditions designed to accomplish that end.

The plaintiff argues that however valid such power may be generally, this power of the federal government to attach conditions to grants to the States is not an unlimited one and may not be stretched to validate "coercive" conditions. That it urges is the necessary consequence of the requirement of a State certificate of need law. In support of this argument, it relies primarily on Steward Machine Co. v. Davis (1937) 301 U.S. 548, 57 S.Ct. 883 81 L.Ed. 1279. In Steward, the Court recognized that to hold "motive or temptation [on the part of a State to comply with a condition attached to a federal appropriation grant] is [to be construed as] equivalent to coercion is to plunge the law in endless difficulty."5 It accordingly declared as a general rule, that whenever the condition attached by Congress to an appropriation grant available to the States relates to a "legitimately national" purpose, inducement or temptation to conform does not go beyond the bounds of the federal government's legitimate spending power and is not coercion in any constitutional sense.7

342 U.S. C. & 300k(a)(3)(B) and (b). 442 U.S.C. & 300m 2(a)(4)(A),(B). 301 U.S. at 589, 590, 57 S.Ct. at 893.

In our recent opinion in State of Maryland v. Environmental Protection Ag. (4th Cir. 1975) 530 F.2d 215 at 228, vacated and remanded 429 U.S. 1036, 97 S.Ct. 728, 50 L.Ed 766; we spoke of these inducements as "[t]he alternative whip of economic pressure and seductive favor," which are legitimate under the constitutional spending power. 7301 U.S. at 591, 57 S.Ct. 883.

It is not to be assumed that the plaintiff would argue that fiscal support for a national health program is not a legitimate national interest, which will support a federal grant to the States. Were it to do so, it would undercut the very basis of its action, which seeks to secure the benefits of such grants without compliance with the challenged condition. Accepting then the premise that such federal support is constitutionally valid, it would seem manifest that the federal government could validly attach a condition which was intended to assure the efficient use of the funds so granted. Such a condition would certainly relate to the legitimate national interest in health. So viewed, it would satisfy the standard phrased by Justice Cardozo in Steward and would be no more onerous on States than countless other federal programs in other fields, such as highways, etc.

The plaintiff, North Carolina, would, however, find the condition coercive under the unique circumstances applicable to it. This situation arises because the Supreme Court of North Carolina, by declaring that the Constitution of North Carolina, as it presently exists, proscribes the creation and operation of a state certificate of need mechanism. As a result of that ruling North Carolina is threatened with a future loss of federal aid under some forty-two federal health assistance programs, a loss which can only be avoided by a constitutional amendment. When a legislative condition operates that drastically upon a State, the plaintiff contends, it becomes "coercive," and not simply inducement. It is unfortunate that its Constitution, as presently phrased and interpreted, might prevent compliance by North Carolina with the federally established condition. Simply because one State, by some oddity of its Constitution may be prohibited from compliance is not sufficient ground, though, to invalidate a condition which is legitimately related to a national interest sought to be achieved by a federal appropriation and which does not operate adversely to the rights of the other States to comply. Were this not so, any State, dissatisfied by some valid federal condition on a federal grant could thwart the congressional purpose by the expedient of amending its Constitution or by securing a decision of its own Supreme Court. The validity of the power of the federal government under the Constitution to impose a condition of federal grants made under a proper Constitutional power does not exist at the mercy of the State Constitutions or decisions of State Courts. Moreover, the "coercive" effect of a termination of federal assistance on the plaintiff North Carolina seems quite unreal. The actual loss to North Carolina should it lose all federal assistance health grants would be less than fifty million dollars; in 1974, its State revenues totaled some 3.1 billion dollars. The