Senator Ingalls, in 1876, in consequence of the disputed Presidential election in that year, introduced a resolution recommending the legislatures of the States to apply to Congress to call a convention to revise and amend the Constitution.1 This resolution made full provision for the holding of the convention, and for the submission of the revised draft of the Constitution to a convention in each State, chosen by the people thereof. In 1884 an attempt was made to create a commission to call a convention,3 and as recently as 1886 a minority report of the Committee on Election of President and Vice-President suggested the recommendation of such a convention, owing to "the imperative necessity of a substantial change in the organic law," and the failure of Congress to give due consideration thereto.1 178. PROPOSED AMENDMENTS IN CONGRESS-PROCEDURE. A brief examination of the reception and procedure upon proposed amendments in Congress will suffice to show how very little chance there is of such a proposition being brought to a vote in the branch of Congress in which it is introduced. Almost invariably a proposition to amend is in the form of a joint resolution, although there have been a very few bills introduced providing for amendments to the Constitution.5 In general, upon the introduction of a resolution proposing an amendment, it is customary, after it has been read twice, to refer it to some committee, usually to the Committee on the App., No. 1429. 2 This made provision for a convention composed of as many delegates from each State as it is entitled to Senators and Representatives in Congress. Two to be chosen by the legislature in each State, the others in the Congressional districts, but no person holding any office of profit or honor under any State or the United States to be eligible as a delegate. The convention should assemble at Columbus, Ohio, May 2, 1877, the Chief Justice of the Supreme Court of the United States to be the presiding officer. Said convention should revise the Constitution and report "such alterations and amendments in the nature of an entire instrument," which should be reported to the President of the United States, who should immediately submit the same to a convention of delegates chosen in each State by the people thereof, under recommendation of the legislature, for their assent and ratification. 3 App., No. 1631. This resolution, after reciting the failure of Congress to recommend needed amendments, provided for the appointment of a commission of seventy-six persons by the President, composed of two persons from each State from different political parties, for the purpose of considering and proposing to the States the propriety of the legislatures of at least two-thirds of the States uniting in calling a convention on the 4th of July, 1887, for the purpose of proposing amendments to the Constitution. 4 App., No. 1660. House Rep., No. 2493, Forty-ninth Congress, first session, p. 5. See ante, par. 35. Manual and Digest of the Rules and Practice of the House of Representatives, Fiftythird Congress, second session, pp. 404-405. Judiciary, unless there is a committee on the subject to which the amendment refers; thus in recent years the amendments in regard to the election of President and Vice-President have been referred in the House to the Committee on Election of President and Vice-President. In case the proposition is favored by a considerable number of members, who are par ticularly zealous in urging it, sometimes it is possible to secure the appointment of a select committee to which it is referred. All the most important propositions, like those now a part of the Constitution, were so referred. Of the more than eighteen hundred propositions to amend the Constitution, introduced in Congress during the first century of its legislative history, over one-half have received no further consideration beyond their reception and reference to a committee. The remainder have either been reported or received further discussion, but only a very small percentage of these have been brought to a vote. Only two attempts have been found which proposed to change in any way the customary method of procedure. The first of these was introduced in 1826, by Mr. Herrick of Maine.1 It proposed to regulate the time for introducing amendments, prohibiting their proposal save in every tenth year. This was without doubt suggested by the flood of amendments which came pouring into Congress at about this time, to change the method of electing the President, owing to the defeat of Jackson in 1824. This regulation, however, failed to meet the approval of the House and it was never called up from the table. The other attempt was made by Mr. Beach of New York at the opening of the Forty-ninth Congress, in 1885.3 It was evidently called out by the marked increase, in recent years, of the number of constitutional amendments proposed, and the desirability of giving them more extended consideration. The resolution made provision for the appointment of a standing committee of fifteen members of the House, "to be known as the Committee on Constitutional Amendments, to which shall be referred all resolutions and bills proposing amendments to 1 App., No. 571. See ante, par. 4. 2 Some of the State constitutions have provisions of this character. In Pennsylvania, New Jersey, and Tennessee it is unconstitutional to submit more than one plan of amendment, in the case of the first two States during five years, the latter six years. Borgeaud, Adoption and Amendment of Constitutions, p. 189. By the constitution of Vermont, 1870, amendments could be proposed only at intervals of ten years. * House Journal, Forty-ninth Congress, first session, p. 81. the Constitution." This resolution was referred to the Committee on Rules, but was never reported.1 179. RATIFICATION BY CONVENTIONS. Several notable attempts have been made to have certain amendments submitted to conventions in the several States, instead of to State legislatures, for their ratification or rejec tion. Such propositions were made in connection with several of the amendments proposed in 1860 and 1861, notably in the case of the Crittenden amendments. The so-called "Corwin amendment" of 1861, although "proposed by Congress" to the legislatures of the several States for ratification, was "ratified" by a constitutional convention ordained by the people of the State of Illinois on February 14, 1862.3 As the other mode of ratification had been prescribed by Congress, the question naturally arises whether this could be considered a valid ratification, although in connection with this amendment it has no practical significance, as only two other States ratified it, and the progress of the war placed its adoption out of the realm of possibility. This is the only case where a constitutional convention in any State has acted upon an amendment submitted by Congress. Since that time attempts have been made by the opponents of the proposed amendments, then under consideration by Congress, to make provision for this method of ratification. It was suggested by them as offering a better chance for the defeat of the amendment in the States. When the thirteenth amendment was about to be submitted to the States this method of ratification was proposed. The true reason for the introduction of this resolution was soon shown to be an effort to accomplish its defeat, for the speech of its author, Mr. Pendleton of Ohio, instead of being an argument in favor of the ratification by conventions, consisted simply of a statement of his reasons for thinking the time inauspicious for changing the Constitution, the country being engaged in a civil war. The resolution was rejected by a decisive vote. 1 Stated by W. A, Muller, a member of the Historical Seminary in American History. Harvard, 1891, from his work on the Committee System. 2 Original form of amendment provided for ratification by conventions only. Elliot, V, pp. 123, 381. 3 Certified copy in Bureau of Rolls and Library, State Department. 4 Ohio and Maryland. See par. 107. Б App., No. 1023. A similar attempt was made in vain by Senator Dixon of Connecticut, when the fifteenth amendment was under consideration. His objections seemed directed against the unequal system of representation in the Connecticut legislature. He therefore urged his plan when the House suffrage amendment was before the Senate, and he also presented it as an amendment to the resolution which later became the fifteenth amend ment. Congress had power, he said, if it ordered the ratification of the amendment to be by conventions, to declare that "the convention should be chosen in such a manner that it should represent the people." He further maintained that this was a question upon which the people had never had an opportunity to canvass or to express their opinion, therefore the body called upon to ratify it should be chosen subsequently to its submission. The previous amendments which were submitted to the State legislatures for ratification, especially the first twelve, did not relate to the States at all, but simply curtailed the powers of Congress. Now the proposition is to provide that a power which has always heretofore been held by the States as their own power and their own right shall be taken from them. It is therefore proper that the people should have an opportunity of making known their will in regard to the proposed change.' He was answered by his colleague, Senator Ferry, who declared that the question had been discussed before the people, and he further asserted that the same reason that prevented this mode of ratification from being adopted in the previous cases was pertinent now. Congress and the people have never used that power of submission to convention, because the machinery of conventions was dilatory, expensive, and unwise. The Constitution has provided for the speediest correction by the submission of an amendment to the legislatures. The delays incident to the assembling of a convention may be so many that it may be years before the evil can be removed which the amendment was proposed to remedy.3 180. REGULATION OF THE RATIFICATION BY LEGISLATURES. Several attempts have been made in Congress to specify that a proposed amendment should be brought before legisla 1 App., Nos. 1268, 1286. 2 Globe, Fortieth Congress, third session, pp. 828, 855, 1040. See post, par. 180. tures hereafter elected for ratification. On May 23, 1866, when the fourteenth article was under consideration in the Senate, a resolution providing that this amendment should be submitted to legislatures which shall be chosen, or the members of the most popular branch which shall be chosen next after the submission of the amendment, and at its first session, was presented by Mr. Buckalew of Pennsylvania.2 The resolution further stipulated that no acceptance or rejection shall be reconsidered or again brought in question at any subsequent session; nor shall any acceptance of the amendment be valid if made three years from the passage of this resolution. This last clause was doubtless suggested by the recent action of New Jersey in regard to the thirteenth amend ment. That amendment had been rejected by the legislature of that State, December 1, 1865, and notice of its action had been duly sent to the United States Secretary of State. When that officer proclaimed the adoption of the amendment by the ratification of twenty-seven States on the 18th of December, 1865, no mention was made of New Jersey. However, on January 23, 1866, the legislature of New Jersey reconsidered its previous action and approved the amendment.3 When the fifteenth amendment was before Congress, the Democrats made a systematic attempt to render its success doubtful by endeavoring to secure its submission to the States for ratification by some untried method. Propositions similar to the one previously presented by Mr. Buckalew were now submitted by several of the Senators, and gave rise to an extended discussion. The argument in favor of the measure, as presented by the various Democratic speakers, was based on the ground that the question ought to come 1 The form of proposal adopted in 1789 has usually been observed in the resolutions proposing amendments. It is as follows: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the following articles be proposed as amendments to the Constitution of the United States, which, when ratified by three-fourths of the State legislatures, shall become valid to all intents and purposes as a part of the same." Sometimes, a little variation in the language, as in No. 931, the "Corwin amendment," or No. 1057, the latter as follows: "Resolved by the House of Representatives (the Senate concurring), that the following amendment to the Constitution of the United States, be, and the same hereby is, proposed to the legislatures of the several States for ratification. Another, devised during the reconstruction period as No. 1196 (1867), reads: "Be it resolved, etc., that upon the ratification of this amendment by three-fourths of the States represented in Congress," etc. 2 App., No. 1154. 3 Jameson's Constitutional Conventions, p. 624. 4 App.. Nos. 1263, 1297, 1298, 1302. Senators Davis, Hendricks, Saulsbury, Dixon, and Bayard. Globe, Fortieth Congress, third session, pp. 1309-1314. |